OPINION:
Nearly everyone thinks the American criminal justice system is broken, and needs fixing. Prisons are overflowing, often with men and women who were convicted of crimes that are crimes only in the imaginations of legislators who write the laws, and prosecutors who put as many people in prison as they can only to pad their resumes. Prosecutors are usually judged not for how they serve justice, but on how many men and women they put away.
Prisons don’t rehabilitate, and the result is that prisoners who serve their time are often released with only the guarantee that they’ll be back for another term. Those who are eager to turn their lives around are sent back to society with no skills and no prospects, branded as hopeless losers.
Most prisoners, to be sure, are in prison because that’s where they belong. Many are not only life’s losers but bad people, determined to prey on the innocent and locked away because of what they have done and who they have become. The devil in the details of prison reform is that it’s often difficult to separate the bad losers from those who deserve a second chance, an opportunity to make something of themselves. A review of how a prisoner got where he is often says little about his prospects for the future.
Drug dealers are often sentenced on reduced charges, on deals negotiated by expensive lawyers while minor players with nothing to exchange for leniency are forced to enter pleas to a conspiracy where they were bit players and nevertheless draw harsh sentences. Emptying prisons in a burst of naive reform is not the answer; releases must be reviewed case by case to guarantee fair treatment not only for prisoners, but for the rest of us.
Fairness is fundamental. The law gives prosecutors all the breaks, and they can convict almost anyone, including that famous ham sandwich. Five thousand federal felonies are set out in the law books; more than that under state law. Many don’t require intent to do something wrong, and many others are felonies not because they are wrong in fact, but wrong because a legislator or regulator finds it convenient to declare them wrong. Prosecutorial discretion can be used to go after those who should be punished, and enabling others to go free without paying for their crime.
Lois Lerner, the supervisor at the Internal Revenue Service who targeted conservative critics of the Obama administration for special attention to their tax returns, could have been punished for criminal corruption of the tax code. She invoked the Fifth Amendment, enabling her to avoid answering questions that might have incriminated her. She and her lawyers knew she was in deep trouble. To the surprise of no one who had been paying attention, President Obama’s Justice Department gave her a pass.
On the other hand, Dennis Hastert, the former speaker of the House, was forced to plead guilty to a charge that was never intended to apply to defendants in his situation. He may be sentenced to serve time in federal prison.
Hillary Clinton is in a category of her own. The FBI is investigating whether she, as the secretary of State, played fast and loose with the nation’s top national-security secrets. If so, she could be convicted and sentenced to prison for it. Edward J. MacMahon, a lawyer who has defended whistleblowers who mishandled far less important classified information and gone to prison for it, thinks Hillary is likely to escape justice because “she’s too big to jail.” That’s no way to run a criminal-justice system.
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