Obama and Over-Criminalization

Obama recently told Americans that we are locking up too many people.  He meant, by that, that Americans are sending to prison people who are guilty only of drug offenses and pose no threat to public safety.  There is a kernel of truth in what he says.  People who use drugs, like people who drink too much, are not a threat to us unless they are on the highway or are committing other crimes while under the influence.

There is a predictable flaw in this leftist logic.  Look closer at the criminal records of these “non-violent” offenders and, almost always, if they are in prison, they have a history of violent offenses, or there is a lesser included violent crime in the underlying sentence, or the offense has been plea-bargained so that the violent nature of the underlying criminal act is watered down.

But forget about that…for the moment.  What is Obama suggesting that conservatives should applaud?  Nothing, of course, that he intends, but if over-incarceration is a “problem” – and nearly all leftists think that it is – then the underlying cause is the criminalization of nearly everything but an omnipresent state. 

This is because the left never considers that the proper way to address dubious behavior is through moral instruction by church and family or by the natural operation of market forces (which punishes creeps and boors and rewards decency).  Everything the left desires in life it desires to achieve through the rough bludgeon of state power.

So almost everything in life today can be interpreted as “criminal,” and the left insists that the solution to every problem in modern life is for the state to pass new laws or make new regulations – which are backed up by the power of the state to arrest, to prosecute and to imprison.  Why not reduce dramatically, the sheer volume of laws and regulations?  Why not conduct a comprehensive review of all behavior that is now criminal with a view to abolishing everything not essential to public safety?

A second theme of Obama and the left when they look at incarceration is the disparity in arrest, prosecution, and imprisonment.  Here again, conservatives ought to agree that, indeed, there is disparity in how criminal laws are enforced.  Black thugs who brazenly intimidated voters in Philadelphia during the 2008 election were not prosecuted.  Is it imaginable that white thugs who intimidated black voters would escape criminal prosecution?

Consider all the conservatives who have been arrested, indicted, and tried for “crimes” like Rick Perry line-item vetoing an appropriation to an obnoxious and drunken prosecutor.  Consider Scooter Libby or Tom Delay or Ted Stevens – or consider Bob Menendez, who has been indicted for a crime that seems absurdly weak.  His real offense seems to be that he defied Obama.

Now consider all the leftists like Hillary, who casually advises America that she has destroyed public records and hidden key facts from Congress or her husband and lied under oath in depositions in the Paula Jones case, or consider Lois Lerner, who also purged e-mails – again, public records – which would have exposed very serious criminal wrongdoing.

There is obviously unequal protection of the laws in the exercise of prosecutorial discretion.  Conservatives are prosecuted for peccadilloes while leftists who engage in much more serious misconduct face no sanction at all.  The prosecution of the law clearly denies conservatives equal protection.  Is it worth noting that these conservatives who are prosecuted and sometimes convicted are, just like the folks Obama said were unfairly treated, engaged in nonviolent crimes (if, indeed, they have committed any crime at all)?

If the criminal justice system is swollen with too many cases, and if prisons are full of too many nonviolent offenders, why not start by de-criminalizing that behavior that is deemed criminal only when conservatives commit the offense?  Why not greatly simplify the law to punish only that sort of offenses that involves obviously noxious behavior like rape, assault, burglary and theft – that type of behavior that directly violates the rights of ordinary citizens?  Such offenses have historically been captured in the FBI’s Uniform Crime Report.

It is the left, not the right, that demands the over-criminalization of life in America.  It is the left, not the right, that suffers precisely the sort of bigoted treatment in the prosecutorial system resting on this over-criminalization, which looks like the how blacks were under Jim Crow.  If Obama wants a true reform of the criminal justice system – the laws, the enforcement of those laws, and the prosecution of individuals under those laws – then conservatives ought to join with him by proposing real reforms.