As usual, the administration’s story is rife with fraud. Holder carefully talks about “non-violent” drug “offenders.” Obama riffs about “kids or individual users” supposedly “lock[ed] up . . . for long stretches of jail time.” You are left to imagine poor addicts who never hurt anyone but themselves, languishing for decades in some super-max prison. Yet federal drug enforcement targets felony drug dealers, not simple possession of drugs — the latter is left to the states. Mere users of marijuana and crack are not wasting away in federal penitentiaries. Moreover, an offender sentenced under a mandatory-minimum provision has necessarily committed a significant narcotics felony; the felony distribution of minor amounts of narcotics is not subject to a mandatory minimum, and judges maintain discretion to sentence those offenders to little or no jail time. Obama and Holder are talking about freeing what could amount to thousands of serious criminals.
The administration also claims that, at least at the start, it is going to commute only the sentences of convicts who have served at least a decade in prison, and only for the purpose of giving them the benefit of a recent change in the law. In the Fair Sentencing Act of 2010 (FSA), Congress reduced some drug penalties. Thus, Obama and Holder claim they are merely giving pre-2010 drug convicts the benefit of the 2010 law. But Senator Jeff Sessions (R., Ala.), who was deeply involved in the debate over passage of the FSA, points out that retroactivity was a major bone of contention. The law, like most legislation, was a compromise that would not have been enacted without the assurance that it would have only prospective effect. That is, Obama is using the pardon power as a smokescreen to impose by decree a measure Congress specifically refused to pass by the Constitution’s legislative process.