The Only Consensus That Matters

Like Andrew McCarthy, it was quite a surprise to me to read the commentary by former United States Attorneys Joyce Vance and Carter Stewart at National Review.

True to form, Attorney General Jeff Sessions has returned the Justice Department to the failed mindset of its past. In implementing his own tough-on-crime mantra, he has required prosecutors, in virtually all cases, to charge the most serious offenses and ask for the lengthiest prison sentences. Americans have seen this one-size-fits-all policy in action before. It doesn’t work.

And, of course, it doesn’t work. It fills prisons, destroys families and pacifies the groundlings who know little about criminal law and understand only that they don’t want crime to touch their world. Andy disputes this with the low-hanging fruit that is most easily digestible to the simpletons.

Doesn’t work? This directive, in effect with little variation until the Obama years, is one of several factors that contributed to historic decreases in crime. When bad guys are prosecuted and incarcerated, they are not preying on our communities.

No doubt Andy knows better, as he’s a very smart guy, but he would be remiss not to use the easy if logically fallacious argument at his fingertips. But he also gets into some real reasons, noting that this isn’t some evil that AG Jeff Sessions dreamed up, but the norm for the past four decades.

In reality, what Sessions has done is return the Justice Department to the traditional guidance articulated nearly four decades ago by President Carter’s highly regarded attorney general, Benjamin Civiletti (and memorialized in the U.S. Attorney’s Manual). It instructs prosecutors to charge the most serious, readily provable offense under the circumstances.

This doesn’t make it sound policy, but contrary to the limited understanding of the very righteous people who woke up last November, this is nothing new. Then, Andy swings for the fences to silence those who are shrieking about Sessions’ shift back to the old days.

The thrust of the policy Sessions has revived is respect for the Constitution’s bedrock separation-of-powers principle. It requires faithful execution of laws enacted by Congress.

***

Yes, between leftist hostility to incarceration and libertarian skepticism about prosecutorial power, there is common ground among some factions of lawmakers when it comes to opposing our allegedly draconian penal code. But these factions are not much of a consensus. The only consensus that matters is one that drums up support sufficient to enact legislation into law. “Criminal-justice reform” is of a piece with “comprehensive immigration reform” and the Obama agenda: If it actually enjoyed broad popularity, resort to executive fiat would be unnecessary — Congress would codify it.

We’re staring down decades of grossly misguided law. Not Executive Guidance. Not Department of Justice policy. Law. Congress enacted laws that include mandatory minimum sentences. Congress created the United States Sentencing Commission to construct guidelines for judges to use in sentencing defendants, mandatory until the Supreme Court burped in Booker. These are laws.

The criminal-justice “reformers” want mandatory-minimum-sentencing provisions eliminated and other sentencing provisions mitigated. Yet, despite the sympathetic airing they get from the “progressive” mainstream media, they are unable to get their “reforms” passed by Congress. How come? Because strong majorities of lawmakers understand themselves to be accountable to commonsense citizens — people who aren’t “evolved” enough to grasp how reducing the number of criminals in prisons will somehow decrease the amount of crime. Most of us benighted types proceed under the quaint assumption that, even in “today’s America,” the streets are safer when the criminals are not on them.

Whether Andy is right about there being no “strong majority of lawmakers” who favor smart-on-crime reforms is a bit of a facile leap of faith on his part. But that they realize they’re “accountable,” which means at the mercy of the townfolk in the voting booth if they don’t play to their “common sense,” which means simplistic assumptions, ignorance and prejudice, is certainly true.

There is one overarching goal of every elected official, and that’s to get re-elected. The way one does that is to get people to vote for you, and the way to do that is to pander ceaselessly to what plays in their hearts, if not their minds. As every elected official will patiently explain to you using the smallest words possible, he can’t accomplish great things unless he’s re-elected. And once re-elected, he can’t accomplish great things unless he’s re-elected again. And so on.

The litany of justifications for severe sentences, and why society can’t trust those “lefty elitist judges” from lefty elitist universities (which were neither lefty nor elitist when they attended, though their subsequent jobs in white-shoe law firms and U.S Attorneys’ offices were pretty elitist, if not at all lefty) to burn the witch without a pitchfork to their throats, makes up the balance of Andy’s argument. The usual banal stuff, including the requisite homage to Heather McDonald’s “blacks are just more criminalish,” to justify why the “allegedly Draconian” sentencing scheme has been so fabulously successful at eliminating drug use.

But Andy’s point about the failure of criminal-law reform to change the law is real. It does not mean, as he contends, that prosecutors are acting illegitimately, “prosecutorial decree,” by exercising the discretion to be merciful, to charge as the facts and circumstances warrant, rather than reflexively charging offenses to invoke mandatory minimums and thus remove any possibility for discretion and bind the judges’ hands.

And yet, that it falls to the Attorney General to fix what Congress refuses to change reflects a systemic question that we pretend not to see.

But it is not enforcement of the law. It is executive imperialism. . . .“Congress refuses to codify my policy preferences; but I have raw executive power so I shall impose them by will . . . and call it ‘prosecutorial discretion.’”

The law is bad, and we keep re-electing people who perpetuate bad law, refuse to reform it and refuse to eliminate mandatory minimums and the sentencing guidelines. The “why” isn’t hard to appreciate: tough-on-crime is an easy sell to a fearful and simplistic polity, and it’s served politicians well over these many decades. Shutting your eyes and screaming “lalalala” won’t accomplish your goal. The problem won’t be solved by the attorney general, but by ending the blight of bad law which we validated by re-electing its proponents again and again.

22 thoughts on “The Only Consensus That Matters

  1. B. McLeod

    Like everything else people have been taught to want for free, unlimited prison space is not sustainable. Eventually, the whole nation will become California, sending people to prison in droves, only to let them out early because there aren’t prisons to hold them or taxpayers willing to foot the growing bill. This is what comes of the death of civics, and the moronization of the citizenry, who have come to regard “government” as some kind of magic wishing well that can do anything for a penny.

    1. SHG Post author

      There is a vast domino effect at play here, where all the rationalizations stop at the first level and ignore everything after that, from the cost of prisons to the cost of children raised without a parent and their subsequent spiral on the mean streets. I would ordinarily add here my usual admonition, that thinking is hard, but the fact is that there are a great many very smart people doing a lot of thinking about this, and almost all of it is mush-minded agenda-driven untenable nonsense.

  2. Dan

    I’d disagree with him in that criminal justice reform and immigration reform do both enjoy broad popularity–but with very little agreement as to what that “reform” should look like. There are a hell of a lot of Americans who think we aren’t tough enough on immigration, which has a lot to do with why Trump was elected. There are plenty who think we aren’t tough enough on crime (occasionally, that complaint even comes from the left–remember Brock Turner?). “Reform” sounds great, but it’s a meaningless word.

    1. SHG Post author

      Be careful. When you write “they enjoy broad popularity,” it’s empty. Even if you point to polls, studies, your crazy Uncle Charlie, the only “poll” that matters when it comes to law is the election. Everything else is masturbation.

      1. DHMCarver

        33 states have worked in bipartisan manner with Pew on criminal justice reform, implementing the exact kinds of reforms on a state level that McCarthy claims have no popular support. That nothing can get done at the Federal level speaks more to the dysfunction of the Federal government, and the rather anachronistic way we elect people to Federal government, than whether there is support for such reforms.

        1. SHG Post author

          The more local one gets, the more limited the issues at stake and the more easily focused on particular causes, as their jurisdiction is more limited. Also, their population is more homogeneous in smaller geographical areas. But Andy’s argument isn’t that it has no popular support, just not enough to make it happen. And if you really want to nail down the point, from 2008 to 2010, Dems held the presidency and both houses of Congress. Nothing changed.

          1. LocoYokel

            Well DUH… If the Dems (well both parties really) actually did what they promised when they were elected they would lose their talking points and not have any more reason to be elected. Well aside from the stupid stuff like making everybody in the country part of the 1% and making it illegal to be a cis hetro white male.

            1. SHG Post author

              If only people looked past the speechifying toward what actually happened, we might be able to agree on one thing, that both parties are completely full of shit and have no desire to improve the American condition.

            2. LocoYokel

              Yes but the OP was about the Dems so that is where I mostly headed. I did include the Repubs parenthetically.

  3. John Neff

    Maybe the reason is that there is no consensus to support a reform is that the voters know from experience that the preposed reforms are are based on political slogans.

  4. LocoYokel

    With all of his going on about thinking, one starts to get the impression that SHG is some sort of elitist that expects people to think rather than just emote over the twit of the day.

    What, no more math captcha – so much for thinking.

      1. Jim Thompson

        Your argument against sentencing guidelines and mandatory minimums proceeds as follows (I summarize and paraphrase): they don’t work, they are based on logically fallacious reasoning, the law is grossly misguided.

        Legislators who endorse these tools are pandering.

        Citizens who support them are fearful, ignorant, prejudiced simpletons.

        Andrew McCarthy (“Andy”) knows better but he supports these measures anyway. As for Heather McDonald (whose arguments are nothing if not fact-based), she simply believes that “blacks are just more criminalish.”

        Nowhere in your post do I find even the rudiments of a fact-based, thoughtful, nuanced argument. It’s all rhetoric. And your answer will be that I haven’t read your previous posts, where you make your argument. But that doesn’t cut it. All rhetoric (some ugly), no facts just won’t wash.

        McCarthy’s argument is much better than yours, more persuasive.

        I know Judge Kopf worries about sentencing disparities. What does he say about mandatory minimums and sentencing guidelines?

        1. SHG Post author

          You would be right if you weren’t wrong. My arguments about mandatory minimums and the sentencing guidelines are all here and are well known.

          Andy’s post is a stand-alone article for NRO. This is a law blog. For the day-tripper, each post would have to reiterate everything that’s already been said on a subject as if it was a stand-alone article, but it’s not. As a law blog, it’s an ongoing commentary written with the understanding that readers are lawyers and judges, and already have a working knowledge of the issues. Different animal with different expectations.

          New readers, especially non-lawyers, complain on occasion that I don’t reinvent the wheel for them when they show up. That’s true. If they don’t like it, they don’t have to read.

          1. Jim Thompson

            You say, “As a law blog, it’s an ongoing commentary written with the understanding that readers are lawyers and judges, and already have a working knowledge of the issues.” This assumes that all your lawyer and judge readers agree with you and don’t need persuading. A few helpings of rhetoric spiced with a dollop of name calling and, bingo, like Pavlov’s dog, they’re salivating. I repeat my question, Does Judge Kopf sign on unreservedly?

            I suspect many of your readers would appreciate at least some minimal effort to argue the issue, perhaps a few sentences recapitulating your best argument, instead of fluff. But–hey–it’s your blog.

            Finally– and this makes no nevermind to you, I realize–I know I don’t have to read but, damn, I do enjoy most of your stuff.

            1. Brian Cowles

              Well, for my (non-lawyer) two cents…no. I don’t need to see the arguments again in every post on a particular topic That said, it would be nice not to have to search for those same posts every time I need to look at one. I think some tags would be enough for most purposes, although I appreciate that there is a vast amount of work involved in tagging your incredibly prolific body of work.

            2. SHG Post author

              My failure to tag was a mistake I made in the early years. Going back now to do what I should have done would be a nightmare. Of course, search works well enough, so it may not be the best way, but it’s not that hard either.

      2. B. McLeod

        There’s four who share the gloom,
        And we work hard for our cash,
        Sleeping late on Sunday,
        I never get to math,
        But it’s a long, long way from Clare to here. . .

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