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A Better Solution to Prison Overcrowding

On Monday, Attorney General Eric  Holder announced proposed prison reforms aimed at reducing the population of the nation’s overflowing ­federal prisons. Holder cited figures that show the federal prison population has grown almost 800 percent since 1980. “With an outsized, unnecessarily large prison population, we need to ensure that incarceration is used to punish, deter and rehabilitate, not merely to warehouse and forget,” he said. 

Holder’s solution? Stop prosecuting federal crimes. Holder directed all federal prosecutors across the country to stop charging low-level, nonviolent drug offenders with offenses that impose severe mandatory sentences. But there is a far more effective way to reduce the prison population: slash the number of federal crimes. Yes, mandatory sentencing is part of the problem, but the larger culprit is the explosive growth of federal criminal laws. There are 4,500 federal crimes on the books, with new ones being added at a rate of about 500 a year. The laws are deliberately vague, giving prosecutors maximum discretion “to intimidate decent people,” as syndicated columnist George Will has observed.    

Until relatively recently, ordinary criminal law was almost exclusively the province of state authorities.  And with good reason: under the U.S. Constitution, the federal government has only limited power over crime, generally covering things like treason, piracy, and counterfeiting. 

How the federal government managed to expand its criminal jurisdiction would come as a surprise to most Americans. Most federal criminal laws are justified under Congress’s power to regulate interstate commerce. And so, for example, the courts have allowed the federal government to prosecute arson cases involving apartment buildings on the grounds that the real estate market is part of interstate commerce. But of course the use of the Commerce Clause is the merest pretext: nobody thinks that Congress was trying to regulate the real estate market by making arson a federal crime.  

The Founders did not establish our two-level federal system on a whim. They did it to protect individual liberty. In Federalist 51, Madison argued that federalism (along with separation of powers) would create “a double security . . .  to the rights of the people.”  Constitutional scholar Akhil Reed Amar has argued that the states can “act as a remedial cavalry” by riding to the rescue of citizens victimized by federal power. That’s true in a general sense, but given the supremacy of federal law, the states are powerless to help those citizens prosecuted under federal statutes. The nearly unchecked power of federal prosecutors has led, inevitably, to abuse.  

Consider the 2002 conviction of Arthur Andersen, which put tens of thousands of innocent people out of work, only to be overturned on appeal. In 1994, a Michigan property developer was arrested for having contractors excavate some sand and place it in a ditch—all on his property—without seeking approval from the Army Corps of Engineers.  For this dastardly crime, federal prosecutors sought a sentence of 63 months—more than five years. The trial judge flatly refused to put a man behind bars for “mov[ing] some sand.” The government appealed, and the case was ultimately settled. 

It’s true that Holder cannot unilaterally take federal laws off the books — only Congress can do that. But neither Holder nor his boss, President Obama, seem troubled by the unconstitutional breadth of federal criminal law today. Instead, they blame prison overcrowding on racism.   

In a speech at the annual meeting of the American Bar Association in San Francisco, Holder cited a recent “deeply troubling report” indicating that black male offenders have received sentences nearly 20 percent longer than those imposed on white males convicted of similar crimes. That is troubling – but it’s not the root cause of overcrowding; besides, by taking aim at mandatory sentences Holder is targeting the one part of the justice system that is necessarily colorblind. We won’t improve the sorry state of federal prisons while this administration refuses to concede that the real cause of prison overcrowding is rampant over-criminalization.

  1. BrentB67

    I would be interested to know the statistics of how many illegal aliens are in prison.

  2. Matty Van

    I doubt if Holder is interested in reducing the number of federal crimes. I’m SURE his boss is uninterested. Still, this is good news. It will be even better news if it increases awareness of the existence of federal laws and also regulations with the force of law, and if it stimulates a public discussion about the constitutionality of such laws. I’m not holding my breath but my fingers are crossed.

  3. Pelayo
    BrentB67: I would be interested to know the statistics of how many illegal aliens are in prison. · 36 minutes ago

    So would I.  Illegal aliens who commit non-violent crimes should simply be deported in my opinion.  On the other hand, if they kill someone I want to make sure they rot in jail or fry in an electric chair right here in the good old USA.

  4. Pelayo

    I have a strong dislike of Eric Holder, but this is one instance where I am happy to support him.  Mandatory minimum sentences are incarcerating some offenders for much too long.  Judges need to have the ability to “judge” and administer sentences that fit the crime.  Federal over-reach under the Commerce Clause is rampant and any attempt to stop it is a good move as well.

  5. BrentB67
    Mario the Gator

    BrentB67: I would be interested to know the statistics of how many illegal aliens are in prison. · 36 minutes ago

    So would I.  Illegal aliens who commit non-violent crimes should simply be deported in my opinion.  On the other hand, if they kill someone I want to make sure they rot in jail or fry in an electric chair right here in the good old USA. · 6 minutes ago

    One of the big problems we have is illegal alien catch and release. I was in an auto accident with an illegal alien and his pregnant girlfriend. No driver’s license, no insurance, no current registration, adios, go about your business.

    This is the big hole in the gang of 8 immigration ‘reform’ as well.

    My guess is that the illegal immigrants in prison are not there on their first offense. If they were deported on the first one hopefully they wouldn’t be around to commit the more serious offense.

  6. Ron Selander

    If Holder is correct in saying that ” black male offenders have received sentences nearly 20 percent longer than those imposed on white males convicted of similar crimes”, it could very well be because they have higher criminal history scores and therefore, pursuant to the Sentencing Guidelines receive longer sentences under those guidelines. BTW, those guidelines were promulgated to insure fairness!

  7. Ron Selander

    Many federal judges have tried and tried to mitigate those excessive mandatory minimum sentences; but actually their hands are tied.

    Congress needs to stop creating mandatory minimum sentences, because they seldom have any idea whatsoever as to what they are doing in criminal law matters.

    Mario the Gator: I have a strong dislike of Eric Holder, but this is one instance where I am happy to support him.  Mandatory minimum sentences are incarcerating some offenders for much too long.  Judges need to have the ability to “judge” and administer sentences that fit the crime.  Federal over-reach under the Commerce Clause is rampant and any attempt to stop it is a good move as well. · 9 minutes ago

  8. Bulldawg

    Eric Holder spoke at my law school when I was a 1L.  That was in 1993 when he was working for the Clinton administration as an assistant solicitor general, I think.  I knew, inside of five minutes of his blather, that he was a jackleg with a chip on his shoulder.

    That said, I do agree with the decision about drug possession charges.  Perhaps that will give some momentum to Congress repeal those federal statutes and leave those issues to the states as they should be.

    Bluntly, there are just too many damn laws.  Everyone seems to think we can leglislate our way to a perfect existence despite the fact this is simply untrue.

    I wish the Speaker of the House (one with some guts) would spend one year of each two year session reviewing and repealing bad laws.

    Great post, Adam.

  9. Jeff

    This is a great post! I’ve tried to get Ricochet editors interested in over-criminaliation by posting on the Member Feed. It’s good to see this issue making it the Main Feed.

    The Feds can silence anyone, chain anyone, beat anyone, and put anyone in a cage for years. They can always find a pretext.

    It’s scary. It’s insane. It’s the most pressing issue facing America today. It creates a giant chilling effect on political speech, the natural social order, and economic action.

    I suggest a book, Three Felonies a Day: How the Feds Target the Innocent.

    Also, check out Mark Levin’s new book on a possible solution, The liberty Amendments: Restoring the American Republic.

  10. Paul Dougherty

    Probably unrelated but I came across this statistic on Census.gov:

    In 1980, all crime instances per 100,000 people was 5950.

    In 2008, all crime instances per 100,000 people was 3667.

  11. Adam Freedman
    C
    Ron Selander: Many federal judges have tried and tried to mitigate those excessive mandatory minimum sentences; but actually their hands are tied.

    Congressneeds to stop creating mandatory minimum sentences, because they seldom have any idea whatsoever as to what they are doing in criminal law matters. ·

    Agreed, Ron, but as I say in the post, there is zero leadership from Obama for the cause of eliminating federal crimes, or mandatory sentences for that matter.  The typical modus operandi is this: use the administration’s discretion to selectively enforce the laws to fit the liberal agenda; cf: the refusal to enforce immigration laws, the refusal to defend DOMA, etc.

  12. Adam Freedman
    C
    Paul Dougherty: Probably unrelated but I came across this statistic on Census.gov:

    In 1980, all crime instances per 100,000 people was 5950.

    In 2008, all crime instances per 100,000 people was 3667. · 30 minutes ago

    Interesting.  That may be true, I don’t know, but my focus is on the growth of federal crimes.  On that score, there’s no question that the numbers have skyrocketed.

  13. Fake John Galt

    Why doesn’t holder and Obama just issue an executive order that black people will no longer be convicted of federal crimes and those that are in prison on federal crimes will be released?  Then the rates will be more in keeping with what they would prefer and their world view. 

  14. Duane Oyen

    I would be interested to see how much of this is actually relevant today.  I saw data- produced to counter the  standard anti-drug-war meme that our prisons are overcrowded because they are crammed full of non-violent souls whose only sin was to personally indulge in a little weed blah blah.  That set of stats (supporting the meme) actually counts anyone who had drug possession listed on the docket- even if the primary charge was armed robbery or homicide, or running a 50 person distribution network out of a semi-truck full of bales of the stuff.  

    I believe that where any user first or second possession drug charges are even filed at all these days, they are pleaded out at the lowest level- and only when, as with “spitting on the sidewalk” laws, the gendarmerie know that they need to keep a bad cat off the street or have an excuse to question him. 

    In other words: 1) yes, we have too many laws, and 2) like everything else Holder (or Obama) says, this is one more bit of overhyped nonsense promoted for the usual nefarious “victimology” political purposes. 

    That is, continuing the enhanced race war.

  15. Bulldawg
    Duane Oyen: [snip]

    I believe that where any user first or second possession drug charges are even filed at all these days, they are pleaded out at the lowest level- and only when, as with “spitting on the sidewalk” laws, the gendarmerie know that they need to keep a bad cat off the street or have an excuse to question him. 

    In other words: 1) yes, we have too many laws, and 2) like everything else Holder (or Obama) says, this is one more bit of overhyped nonsense promoted for the usual nefarious “victimology” political purposes. 

    That is, continuing the enhanced race war. · 24 minutes ago

    Duane, when I handled criminal cases, I would always have several where some kid had a possession charge and as you suggest, would plead out to a misdemeanor or a low felony but get an expensive fine and onerous probation.  They couldn’t pay the fine and probation fees, get revoked and go to jail.  It got to the point that I’d recommned that go ahead and serve some additional time in the county jail rather than accept a steep fine they couldn’t pay.  It’s ridiculous.

  16. Ron Selander
    Fake John Galt: Why doesn’t holder and Obama just issue an executive order that black people will no longer be convicted of federal crimes and those that are in prison on federal crimes will be released?  Then the rates will be more in keeping with what they would prefer and their world view.  · 40 minutes ago

    I believe that they are, in fact, thinking about doing just that.

  17. Butters

    loss of youth support in the polls after the NSA scandal is why Holder suddenly came out in favor of lax drug enforcement

    “hey, we are losing young people, let’s throw them a shiny object and make some toothless noise about drug legalization”

  18. Wylee Coyote
    Mario the Gator: I have a strong dislike of Eric Holder, but this is one instance where I am happy to support him.  Mandatory minimum sentences are incarcerating some offenders for much too long.  Judges need to have the ability to “judge” and administer sentences that fit the crime.

    Indeed, but judges being too lenient on repeat and dangerous offenders was what created mandatory sentences in the first place.  It doesn’t take many gruesome crimes committed by someone who got a comparatively light sentence for an earlier offense, for the public to lose patience.

    We don’t need mandatory sentencing.  We need better judges.

  19. Duane Oyen
    Matthew Lawrence

    Duane Oyen: [snip]

    I believe that where any user first or second possession drug charges are even filed at all these days, they are pleaded out at the lowest level- ……………..

    In other words: 1) yes, we have too many laws, and 2) like everything else Holder (or Obama) says, this is one more bit of overhyped nonsense …………

    Duane, when I handled criminal cases, I would always have several where some kid had a possession charge and as you suggest, would plead out to a misdemeanor or a low felony but get an expensive fine and onerous probation.  They couldn’t pay the fine and probation fees, get revoked and go to jail.  It got to the point that I’d recommned that go ahead and serve some additional time in the county jail rather than accept a steep fine they couldn’t pay.  It’s ridiculous. · 2 hours ago

    Matthew- what you describe is, of course, ridiculous, and should certainly be legislatively changed.  Are you talking Federal or state cases?  Is this the US Attorney drive for convictions or local prosecutors?

  20. Jimmy Carter

    Holder’s solution? Stop prosecuting federal crimes.

    In Yer linked article I could not find where Holder suggested to stop prosecuting federal crimes.

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