The partisan divide over Trump confidante Roger Stone’s sentencing for the non-violent, process crimes of witness tampering and obstruction further illustrates just how divided we are as a country. If you’re a Democrat, even someone who might typically be for issues like prison reform and fair sentencing that seeks to rehabilitate rather than simply punish, you probably want to see Stone die in prison. If you’re a Trump-supporting Republican, even a ‘law-and-order’ type who would like to throw away the key on marijuana users, you probably think he’s getting a raw deal.
I’m one of those who think Stone got a raw deal, for a lot of political reasons, and I’m a conservative who believes in prison reform and a fair justice system for everyone where the punishments actually fit the crimes to which offenders are convicted. I also believe 14 years was entirely too much for former Democratic Illinois Governor Rod Blagojevich and was glad to see him pardoned. You can agree or disagree, but at least you must admit that I’m intellectually consistent on the issue.
The political issues surrounding Stone’s case are there, they’re real, and hopefully, they’ll be rectified either by a new, non-partisan jury or by the president himself. We can all speak our piece on that and the partisan divide will be as evident as ever. But Stone’s case illustrates something far deeper that’s going on in America, the increasingly all-too-evident reality that punishments aren’t always fitting the crimes committed. There are many factors that contribute to this, not the least of which are overcriminalization, the sharp difference between sentencing for similar federal and state crimes, and the ever-growing reach of the federal leviathan when it comes to its apparent thirst for growing its incarceration system.
Sadly, federal sentencing guidelines famously lean toward draconian, whatever the offense. Everyone knows that if the feds get involved, there’s going to be some hefty time served, not to mention an almost 100 percent chance of getting convicted (ham sandwiches, anyone?). Yet, according to a 2014 report from the National Research Council, “statutes mandating lengthy prison sentences cannot be justified on the basis of their effectiveness in preventing crime.”
According to PEW Research, the average time served for federal offenses rose sharply from 1988 to 2012. Two of the most striking categories of increase are drug offenses, which rose from 23.2 months to 58.6, and so-called “public order” crimes, which rose from 8.9 months to 37.5, a 321 percent increase. While federal violent crime punishments also increased, from 49.8 to 71.6, they didn’t spike at nearly the same rate.
Of the trend towards jail time for white collar crime, The Washington Post’s Nicolas Bourtin writes, “[N]early 70 percent of all offenders sentenced under the guidelines for fraud received some prison time for their crimes in 2012. In 1985, that rate was about 40 percent. For crimes that caused a loss of at least $2.5 million, the same report revealed that offenders were sentenced under the guidelines to an average of nearly five to 17 years in prison in 2012.”
In a tweet last week, I posted the Bureau of Justice Statistics for median state time served, ranked by most serious offense, then compared that with the sentence Stone was given. The lefties who responded were outraged - OUTRAGED I tell you - at the fact that I was comparing a federal sentence with state crime statistics. But that was exactly the point. State-charged non-murder violent crime offenders are serving a median of just over two years in prison. Whether a violent crime is prosecuted by federal or state authorities, it’s hard to argue that society isn’t served by having violent criminals locked away for more than two years. Conversely, society gains nothing when federal or state prosecuted non-violent criminals, particularly those convicted of “public order” crimes, as Stone was, are locked away from their families and productive societal contribution for long periods of time.
In a piece pointing out the “challenges” when it comes to deciding how to sentence white-collar criminals, the New York Times’ Peter Henning notes that Congress “created the United States Sentencing Commission” at least in part to “eliminate the disparity between white-collar offenders and those who commit street crimes.” But why, when these crimes clearly are not the same? As an example, Henning points to the case of United States v. Sample, where an appeals court overturned a judge’s ruling of probation for Matthew Sample, who pleaded guilty to mail and wire fraud after defrauding investors of over $1 million. The judge’s logic? “I want you to keep your job, because I want you to have a good job to pay these victims back.” The 10th Circuit was “puzzled” by the concept that if the defendant had been “poor and unemployed, he might get a prison term.” Maybe so, but the “poor and unemployed” aren’t likely to defraud investors of over $1 million, nor would they be capable of repaying them. So now, a man gets taken away from his family AND the people he defrauded are less likely to ever see that money again. Stupid, stupid logic.
The problem with criminal justice today is far too many people, on both the left and the right, think punishment always has to equal prison. Whether the defendant is an African-American who got caught up in a low level drug sting or a white person who committed a process crime or even made the wrong modifications to a stream on his property, isn’t society better served when these people are in society, getting better, providing for their families, and making real restitution for their crimes? Well-meaning liberals lament “mass-incarceration,” pointing to the fact that well over 2 million Americans are behind bars at any given time. Well-meaning conservatives, like Ann Coulter, point out that crime has indeed gone down since so many would-be criminals are behind bars during their peak crime years. A workable solution could be to imprison, for long periods of time, those who demonstrably are a clear and present danger to society - i.e. violent criminals - and seek other forms of punishment for others, with a bent toward forcing them to atone for their crimes.
This is the Biblical example, of course, for those inclined to care. There were no prisons in ancient Israel, yet the thief was made to restore his stolen goods sometimes up to sevenfold, thereby punishing (the thief must work to obtain the payment), yet still making the victim whole. Some crimes, like rape and murder, call for a harsh punishment. Those victims cannot be made whole, and those criminals need to be removed from society so they cannot hurt others.
I, for one, appreciate the fact that President Trump isn’t afraid to issue commutations or pardons when he feels something is unjust, but what if you aren’t a friend of the president? What if Kim Kardashian has never heard of you? What if you didn’t serve time with Alice Johnson or appear on The Apprentice? I’m not taking issue with any of those situations. Anytime an injustice is brought to light and rectified, God smiles and the angels sing. However, Donald Trump is just one man. Until we fix a system that doesn't protect society, yet allows for draconian punishments for low-level drug offenses and what are, in many instances, essentially paperwork or process crimes, we’ll never have real justice in America.
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