Think back to 2012, the last presidential election, with incumbent Barack Obama against challenger Mitt Romney. Think of the simplistic division between Democrat, who stands for concern for the constitutional rights of the accused, and the Republican, who stands for tough on crime. Think hard.
What a total load of crap.
LAST month, President Obama used his clemency power to reduce the sentences of 46 federal prisoners locked up on drug-related charges. But for the last six years, his administration has worked repeatedly behind the scenes to ensure that tens of thousands of poor people — disproportionately minorities — languish in federal prison on sentences declared by the courts, and even the president himself, to be illegal and unjustifiable.
Would Romney have been worse when it comes to criminal justice issues? Perhaps, but so what?
Instead of rushing to ensure that all those thousands of men and women illegally imprisoned at taxpayer expense were set free, the Justice Department said that it did not want a rule that allowed other prisoners like Mr. Gilbert to retroactively challenge their now illegal sentences. If the “floodgates” were opened, too many others — mostly poor, mostly black — would have to be released. The Obama administration’s fear of the political ramifications of thousands of poor minority prisoners being released at once around the country, what Justice William J. Brennan Jr. once called “a fear of too much justice,” is the real justification.
What could Romney have done to make this more miserable? Spread Legionaires’ disease in the prison ductwork? It’s not that President Obama hasn’t muttered the rights of late. Indeed, he has. And people want to believe their president, so if he says he cares deeply about justice, he must mean it. People also know talk is cheap.
Judge James Hill, then an 87-year-old senior judge on the appellate court in Atlanta, wrote a passionate dissent. Judge Hill, a conservative who served in World War II and was appointed by Richard M. Nixon, called the decision “shocking” and declared that a “judicial system that values finality over justice is morally bankrupt.” Judge Hill wrote that the result was “urged by a department of the United States that calls itself, without a trace of irony, the Department of Justice.”
Judge Hill concluded: “The government hints that there are many others in Gilbert’s position — sitting in prison serving sentences that were illegally imposed. We used to call such systems ‘gulags.’ Now, apparently, we call them the United States.”
Note the salient details. Judge Hill is 87. Appointed by Nixon, of all presidents. A conservative. And he called bullshit. Some bemoan the race of judges, or call out the name of the president who appointed them, because if it was a conservative, the judge must certainly be on the bench to do his bidding.
These people forget the lesson of Earl Warren, appointed by Ike as his “law and order” Chief Justice. Bear in mind, Warren was born in 1891. The 19th friggin’ century. And yet, his tenure as chief brought more reform to criminal law than any other. Ike never forgave himself for such a monumentally bad choice. For him. Not so much for us.
But Mr. Obama must take steps to further undo the damage that he has done.
Must? Must? Why “must” he, because he’s a Democrat? Because he’s black? Because he’s supposed to be the guy we elected to do better than the guy before him? Because he’s a lame duck, can do whatever he needs to do without fear of losing the next election? Why “must” he?
He should use his clemency power to release all those currently held in a federal prison on an illegal sentence. And he should appoint a permanent special counsel whose job would be to review new laws and federal court cases on a continuing basis to identify and release other prisoners whose sentences retroactively become clearly unlawful. That the Department of Justice and Bureau of Prisons have never created such a position is an outrage.
One would have expected this to happen in 2009, minutes after President Obama took the oath of office. But it didn’t. He was busy with Obamacare, so maybe he was holding off on saving the lives of hundreds of thousands of people in prison. But then Obamacare was done, and still nothing. Sure other issues, other problems, but there are always other issues and problems.
Then 2013, having won re-election, and never having to worry about popularity again since his next move was to the old-presidents’ home. Certainly, then we would get that audacity of which he spoke. Surely, this would be the moment.
If we fail to demand change now, this moment for justice may be lost.
Demand or what? We won’t re-elect the president. Bad news, that threat won’t work. We won’t put his face on the new $10 bill? He doesn’t have the legs for it. We can demand all we want, but the only sound coming out of the White House will be a chuckle.
The moment for justice won’t be lost. To be lost, it had to be there in the first place. It wasn’t. It never was. Project whatever ideas you hold dear onto Obama, but they’re yours, not his. He’s never shown the slightest interest in reforming the system. If anything, his administration has done everything possible to perpetuate the wrong.
So listen to the rhetoric that brings a smile to your face. Engage in stereotypes about political parties and skin color, maybe gender, to bolster your certainty that you are backing the right horse. But don’t be surprised if you find yourself Obama’d by your blind faith, just as Ike was Earl Warren’d.
See brother Gamso’s post on this New York Times op-ed.