Beware the Jury of One

This week, President Obama suddenly “commuted” -- read: canceled, reversed, and summarily ended -- the federal mandatory minimum sentences of 22 federally convicted drug traffickers. Of that group, eight were serving life sentences for their endangerment of the public, others ten years or more, and all likely had other encounters with the law. Exactly what kind of message is this president sending to America’s kids, parents, teachers, mayors, governors -- in an old fashioned phrase, America -- and what can we expect next?

Three serious questions need to be asked and answered by the White House. First, what is going on with these 22 offenders? Specifically, how, why, on what basis, for what compelling reason could such sentences be lifted for such egregious federal crimes -- effectively re-endangering the American public? What public policy suddenly outweighs the public’s interest in preserving terms secured with federal taxpayer money, with all the protections of due process, with all the opportunity for appeals -- which produced no reversal of the conviction or reduction in sentence?   

Note that, in every single case, a federal prosecutor had the discretion to bring a lower charge or seek a lesser penalty, but did not. In every case, escape valves from imposing a mandatory minimum sentence existed, since a federal judge can “depart downward” in sentencing if circumstances warrant -- that is, if under the Anti-Drug Abuse Act of 1986 a convicted drug trafficker cooperates with the government or meets “specific criteria relating to criminal history, violence, lack of injury to others, and leadership.” Apparently, no such circumstances were presented in these 22 cases. So what was the compelling reason for freeing these specific, major drug traffickers? By all indications, there were none. 

Second, how does the president intend to explain to the newly endangered populations of Illinois, Florida, Texas, Kansas, California, Georgia, Virginia, Kentucky, Tennessee, Alabama, North Carolina, Iowa, Ohio, and Washington DC that he felt compelled to let these federal prisoners, convicted of major crimes, more than one third of whom were serving full life sentences, now loose in their communities? Answer: he apparently does not intend to explain it. 

Strangely, the president took the entire group and said they were the product of “an outdated sentencing regime.” What does that mean? Particularly since many were sentenced within the past decade? If the president means that drug trafficking is an outmoded crime, or that the U.S. Sentencing Commission thinks these major criminals ought to be free, he is wrong on both counts. Far from “outmoded,” drug trafficking at the level for which these offenders were convicted is both dangerous and growing. Indeed, drug trafficking has been proliferating under this president at a rate unseen before his tenure. 

President Obama not only condoned drug abuse by minimizing the addictive, gateway and proven damage associated with regular marijuana abuse -- betraying tens of millions of parents with the implied message that this drug is not dangerous. But he has overseen an era of runaway drug abuse and trafficking in in heroin and prescription drugs, with other drug abuses in train, including cocaine and methamphetamine. DEA reported in 2014 that “heroin abuse and availability are increasing… There was a 37 percent increase in heroin initiates between 2008 and 2012.”  Dollars to doughnuts, the vast majority of those heroin addicts started their descent into addiction with -- you guessed it, marijuana.

But the betrayal of parents, teachers, public, church and civic leaders, not to mention young Americans themselves, has been profound in other ways.  In addition to sending the absurd signal that drug abuse, broadly construed, is actually “recreation” of some kind, this president has literally begun opening the prison doors to those who have helped kill American kids in large numbers -- through high level drug trafficking. What can justify this abdication of the public trust? 

Whatever his motivation, the president’s actions certainly cut against the grain of the longstanding constitutional and criminal justice system under which we live, common beliefs and understandings of most Americans, and the best interests of the country at large, particularly the country’s youth. Which only returns us to the opening question, what message is this president sending?  The answer is: a message of profound indifference to rule of law, antipathy to America’s families and communities and the values that they most dearly revere, including protection of their children and preservation of public safety.

And so the big, final question is this:  If we cannot discern this president’s root motivations in looking the other way on a plethora of serious drug crimes; if we see an unconscionable indifference to the damage done to America by drug traffickers; if we see unabashed defense of drug abuse on one hand and a refusal to enforce federal anti-trafficking laws on the other; and if we now see this president indiscriminately freeing an unprecedented number of drug traffickers -- a real danger to society, all duly prosecuted and sentenced to long terms -- what  does all this mean? 

The answer, unfortunately, is likely this: with whatever misshaped views of public safety define this president’s conception of American and the world -- including the danger of drug trafficking -- we may be about to see another unprecedented act. What act? Potentially, the freeing of tens of thousands of drug traffickers and others incarcerated for parallel crimes, including terrorists behind bars in the United States or held at Guantanamo by recourse to what has now become a commonplace, the abuse of executive authority. 

In sum, beware the impending use of what was -- until now -- a very limited tool of constitutional equity, a means for remedying a specific injustice, the presidential pardon and presidential ability to commute specific sentences for case-related reasons. We are now maybe about to enter a “Brave New World,” graduating against our common will and under this president’s “power of the pen” to a world in which longstanding norms are viewed as simply “outmoded” -- and summarily reversed by a jury of one.  

Robert B. Charles, a former law clerk on the US Court of Appeals, litigator and adjunct on law and government oversight at the Harvard University Extension School, served as Assistant Secretary of State under Colin Powell.  He currently leads a Washington DC consulting group.