By Dustin Howard
Out of sheer self-interest, you would think Congress should realize it is bad politics to endanger their constituents by releasing convicts into their districts. Sadly, you would be wrong.
The thinking of the left that America is incarcerating far too many people unjustly is gaining traction among Republicans. The thinking goes something like this: The United States has incarcerated far too many people unfairly for narcotics possession or sales, and adjusting the criteria and sentencing requirements will not be enough to rectify the problem; therefore, those wrongly prosecuted should be released retroactively. This is supposed to demonstrate that Republicans aren’t the uncaring caricature as Democrats have long alleged, and that this will soften the perception of Republicans. Why are these assumptions wrong?
Congress indeed has the right to adjust sentencing requirements. Congress has the right to determine when prosecutors should take action. Congress does not have the right to invalidate the convictions of so many who were convicted by juries of their peers, and certainly shouldn’t do so for political reasons.
The trial by jury is a right that goes back to English common law, a lasting legacy of the Magna Carta. Those convicted were accorded due process, defense attorneys and juries as per their Fifth Amendment and Sixth Amendment rights, and if that were not so, their cases would have been ripe for an appeals court.
The jury system is imperfect, but hardly so imperfect that an entity that is renowned for its imperfection, the U.S. Congress, can credibly invalidate its results. Are we to believe that 435 Congressmen and 100 Senators are better informed on the subject of individual cases than hundreds of thousands of jurors, who 12 at a time, decided to convict these prisoners? If the laws or punishments were inherently unjust, would that not have resulted in a different outcome? By upending so many cases, Congress has outdone itself in finding new ways to disenfranchise and supplant the will of their constituents by imposing a top-down solution that hurts more people than it helps.
The declining faith in our institutions has proliferated to elected representatives; leading to those who believe that due to their insufficiency all the bums should be thrown out. The left has long forsaken any belief in our system. However, to see Republicans like Sen. John Cornyn (R-Texas) exhibit a similar agnosticism toward the system he himself participated in as a state Supreme Court judge and state Attorney General is disconcerting.
Sen. Cornyn’s thinking has not yet swayed his colleagues. Sen. Tom Cotton (R-Ark.) said in an interview “It would be very dangerous and unwise to proceed with the Senate Judiciary bill, which would lead to the release of thousands of violent felons. I think it’s no surprise that Republicans are divided on this question … [but] I don’t think any Republicans want legislation that is going to let out violent felons, which this bill would do.”
The subject has divided not only Republicans, but the Obama administration as well. Assistant Attorney General Leslie Caldwell told Senator Richard Blumenthal (D-Conn.) that a willfullness provision that a willfulness provision meant to demonstrate that a defendant has mens rea, or a guilty mind, will hinder their efforts to prosecute white-collar criminals.
The assumption of Sen. Cornyn that these “non-violent” offenders are exempt from the realities of recidivism, making them a likely threat to communities across America, is wrong. Nullifying the will of so many jurors ex post facto is wrong. For Speaker Ryan or Majority Leader McConnell to assume that this bill can navigate the political and legislative minefields to achieve a misguided bipartisan goal is not just wrong, but deadly for the victims of crimes yet committed by the early-released convicts. Passage of this law will not end well; even if it cleans their consciences, it will bloody their hands.
Dustin Howard is a contributing editor at Americans for Limited Government.
