Federal Mandatory Sentences ARE Unconstitutional (But, then, so are most federal criminal laws)

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In a recent speech to members of the American Bar Association, Supreme Court Justice Anthony Kennedy attacked the mandatory federal sentencing laws, thus raising the ire of many conservatives. At about the time Justice Kennedy was speaking in San Francisco, U.S. Attorney General John Ashcroft was ordering his minions to compile a list of federal judges who engage in the practice of "downward departures," i.e., impose less than the "mandatory" sentences on individuals convicted in federal courts.

Economist Thomas Sowell, for one, is outraged at Kennedy’s appeal. Using Adam Smith’s quote, “Mercy to the guilty is cruelty to the innocent,” Sowell presents the "law and order" argument in favor of long sentences, declaring:

Innocent victims of crime seem to disappear from the lofty vision and ringing rhetoric of those who worry that the punishment of criminals is “too severe,” as Justice Kennedy put it. If a day in prison can be pretty long, so can every day living in a high-crime neighborhood, where you have to wonder what is going to happen to your son or daughter on the way to or from school.

The nights can get pretty long too, when you are afraid to go out on the streets and have to worry about how safe you are, even inside your apartment behind doors with multiple locks. Locks can’t stop stray bullets from warring drug gangs.

These statements seem to be "common sense" and no doubt have resonated with many people. The problem, however, is that Sowell is comparing apples with oranges — and mislabeling them in the process. For the most part, Sowell is describing criminal activities that are in the jurisdiction of state courts, not federal courts.

Furthermore, Kennedy’s remarks were aimed not at sentences handed out to violent criminals, but rather the draconian punishments that Congress has demanded be levied on people convicted in federal courts for whom the punishment does not fit the crime. For all of Sowell’s attempts to paint Kennedy as simply another "feel good" liberal who is "soft" on crime, it is Sowell who needs a lesson in jurisprudence.

One of the myths that Sowell repeats in his column is that the vast increase in the prison population over the past two decades is the reason for the drop in violent crime. He writes:

Justice Kennedy pointed out that a higher percentage of our population is imprisoned than the percentage of the population in some other countries. But it has been precisely since we started locking up more criminals in the 1980s that our crime rates finally began to turn downward.

In fact, the United States imprisons more people than any other nation on earth, the present prison population here being more than two million (out of eight million worldwide). Of that near 2.1 million, approximately 171,500 are in federal prisons, and 84% of the 171,500 inmates have been convicted of non-violent drug offenses.

To put it another way, Sowell would have one believe that Kennedy is calling for short sentences for murderers, rapists, and robbers. Actually, Kennedy is doing nothing more than making a plea for federal judges to be able to use their powers to assess a given situation and impose what he or she believes is an appropriate sentence.

Furthermore, of the near 1.9 million prisoners in the state systems, more than half of those inmates have been convicted on non-violent drug offenses. To place these numbers in perspective, in 1980, before the Reagan and Bush I administrations began the drug war in earnest, 315,000 inmates were incarcerated in state and federal prisons. In 1993, the first year of Bill Clinton’s presidency, that number had grown to 910,000. In the past 10 years, the total number of prison inmates has more than doubled.

No doubt, with numbers this large, many violent criminals were put away, but that has always been the case. What we have seen in the last 20 years, however, has been the proclivity of state and federal politicians, judges, and bureaucrats to vastly expand the categories of "criminal behavior" to include those "offenses" that once would at worst have gone to civil courts — or not even be pursued at all.

In the area of federal criminal law, Congress has twisted the Commerce Clause of the Constitution into unrecognizable shapes, creating categories of "crime" that historically have not been considered to be crimes at all. Paul Rosenzweig of the Heritage Foundation recently wrote a legal memorandum that declares that much of what Congress and federal prosecutors declare to be "criminal" activity is historically dubious. Writes Rosenzweig: "Congress has exercised precious little self-restraint in expanding the reach of federal criminal laws to new regulatory areas."

In their important work, The Tyranny of Good Intentions, Paul Craig Roberts and Lawrence M. Stratton demonstrate how the expansion of criminal law — and especially at the federal level — has resulted in scores of wrongful convictions, ruined lives, destroyed families and businesses, and the general loss of liberty of all Americans. Bill Moushey of the Pittsburgh Post-Gazette in 1998 documented numerous cases of a federal justice bureaucracy literally out of control, as innocent people spent years in prison because cynical or dishonest federal prosecutors viewed their cases as ways for career advancement. Even when prosecutorial misconduct was clearly exposed, rarely were perpetrators punished, as the feds tend not to go after their own.

Sowell, apparently, is not interested in any of this information. Instead, he would prefer to believe — as perhaps do most Americans — that only the guilty go to prison and that sentences of 20 years or more for "crimes" that often fall into the category of technical or even unintended violations of one of the thousands of federal regulations that hinder our lives are just and warranted.

It is this kind of wrong-headed thinking that has made our prison population explode, something that we believe in the long run makes our society less safe. From the drug war to the Martha Stewart prosecution, government has expanded its powers to a point where prosecutors have become almost invulnerable. History has taught us endlessly that power indeed corrupts individuals, and that those with the most power often become the most corrupt.

August 18, 2003

William L. Anderson, Ph.D. [send him mail], teaches economics at Frostburg State University in Maryland, and is an adjunct scholar of the Ludwig von Mises Institute. Karen S. Bond [send her mail] is executive director of Federal Cure, an organization that engages in advocacy on behalf of the federal inmate population.

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