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Deals for Dealers and the Phony Charge of 'Broken Justice'

David W. Murray & John P. Walters

After the removal of Ronald Rogers, the long-serving Pardon Attorney for the U.S. Department of Justice who failed to please President Obama over issues of clemency, his replacement, Deborah Leff, has begun to operate the new ‘Clemency Project 2014.’ It is an effort to turn felons back on the streets, under more relaxed criteria.

The result has been a slew of reporting about the potential for “hundreds, even thousands” of federal inmates to be released, their imprisonment for “low-level” drug offenses supposedly revealing the vast injustices of a “broken” criminal justice system (Eric Holder’s words) that has left a legacy of “mass incarceration” driven by mandatory minimum drug sentences.

As events have shown, the slew of reporting has not been matched by a slew of actual prisoners released. It looks more and more as if, even under very forgiving criteria and White House political pressure, finding authentic victims of mass incarceration has proven an elusive quest.

Does the Clemency Project simply need more time and lawyers to sift the evidence, or is it possible that the model of “low-level, non-violent, and unjustly slammed” federal inmates is not criminal justice reality?

Now it seems the larger presidential project of sentencing reform, often described as a wave of a bipartisan support, has hit a rock. On Friday morning, the National Association of Assistant U.S. Attorneys (NAAUSA), the largest association among the nearly 5,600 former federal prosecutors, rejected the effort to pass Smarter Sentencing Act reform measures, and further dismissed the underlying diagnosis concerning mass injustice.

The group issued their report, The Dangerous Myths of Drug Sentencing Reform, at the National Press Club as a follow-up to their poll of federal prosecutors showing that Smarter Sentencing was approved by only 15 percent of survey respondents, while 80 percent rejected the assessment that the criminal justice system is “broken,” or presents massive racial injustice in implementation.

In reality, they argue, mandatory sentencing minimums are a crucial tool for driving successful prosecutions, and critical for taking down violent large-scale criminal organizations.

The prosecutors’ posture helps to explain the great disparity between how supposed victims of mass incarceration are portrayed by advocates as sympathetic offenders – thousands and thousands of low-level non-violent marijuana users, for example, who find themselves inexplicably condemned to life behind bars for what the President called “one little mistake” – and the harsh reality of the small number of inmates who are actually eligible to have their sentences commuted.

For instance, for the most recent tranche of 46 federal inmates commuted this past week, overwhelmingly serious cocaine and methamphetamine drug traffickers, as are almost all federal drug inmates, even a glance at their listed offenses shows such things as weapons use and in at least two instances, holding five kilograms of cocaine.

Five kilograms of cocaine is equal to five million milligrams of cocaine at the retail level, providing for (depending on purity and such) around 200,000 doses on the street, where a $15,000 to $40,000 single wholesale cocaine brick gets converted into hundreds of thousands of dollars of retail hits. No one who is a “low-level innocent” in cocaine land breaks into the business with that kind of weight, tripping into an unlucky first offense. And no community can avoid devastation from the distribution of hundreds of thousands of doses of cocaine and crack.

Yet that is the profile of the type of offender the Clemency Project, scanning the entire 219,000 current federal inmates, presents as the best candidate to be found. The NAAUSA report shows that such inmates, when released, are highly likely to re-offend and impose new criminal costs on society and on their victims. About 77 percent of convicted inmates re-offend, a fate not unlikely for those walking out under the Clemency Project.

And mandatory minimums are not the primary driver. The NAAUSA shows that of federal inmates, no more than 15 percent had sentences driven by drug law mandatory minimums. Importantly, more than half of those cooperated with authorities, and thereby gained “relief” from the impact of the minimum; that is, they received a sentence reduction for information that helps defeat the larger cartel.

Non-violent offenders? As the NAAUSA report shows, violence is inherent to drug trafficking. The direct violence of the criminal cartels, funded by the sales, is met by the death and destruction, the heroin overdoses, the crashed families, the epidemic impact, of drug use.

Finally, beyond violence, in 2007, the costs to society of illegal drug use was estimated at $193 billion a year (the FY2015 budget for the Federal Bureau of Prisons is $8.5 billion for incarceration, transport, and rehabilitation programs). Rectifying mistaken injustices in criminal sentencing is a genuine duty. But making unjust charges against the integrity of the justice system itself, in order to release back on the street those properly tried and convicted for their crimes, in support of what appear to be crass political purposes, serves no one.

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