The media is up in arms. Liberals are seething (the last days pardons of Bill Clinton a distant memory). "Pay for play" is all the rage in being criticized. The ability of rich and wealthy people who can buy influence is being decried. So be it.
But as a reader of this humble blog, you know you expect us to look deeper. And so we shall.
As a young lad of a lawyer in the 1970s it was not uncommon to see a woman in a courtroom. Her eyes blackened. Perhaps her jaw or nose broken. The case would be called. The defense attorney would inform the judge the victim was married to the defendant, and the case would be dismissed. Then the pendulum swung the other way. Federal funding for domestic violence caused prosecutors to form specialized units. Judges were trained. And as the pendulum swung we now have situations where it is easier to post bond for a client stopped with a kilo of cocaine than it is for a defendant charged with throwing a marshmallow in anger at their domestic partner.
The same is true for white collar crime. In the past, as people of color were locked up for violent street crimes, white collar crimes were pooh-poohed. No one was hurt. The defendant was not a danger to others. Probation was sufficient. Then the odious sentencing guidelines took hold. The amount of loss drove a prison sentence. And loss was defined as either actual or intended. Medical fraud cases where the defendant billed ten million dollars and received ten thousand dollars were treated as a loss of ten million. Now we see white collar crime sentences where the guidelines are more severe then a terrorist act or sexual assault. Fifty year old business owners are the new recipients of the "lock em up and throw away the key" philosophy. Appeals are routinely denied in circuits (other than the Ninth) where the term "reversed and remanded for discharge" is as archaic as the term "your obt' svt".
So defendants and families are desperate. A court system that is uncaring and rigged against a defendant. A gulag of prisons swallowing up white collars fraud cases and spitting out broken old men. Enter President Trump. The DOJs Office of Pardons and Commutations is broken. There is a 15,000 plus back log. Prosecutors are making recommendations about whether defendants should have their sentence commuted or pardoned. President Trump did not care about convention or prior practice. He was available to right a wrong.
Right here in the SDFLA, about 18 months ago a man who was the father of five children, whose wife was dying of cancer, and was slammed with a twenty year trial tax was sentenced to 20 years for an analogue marijuana drug case. His sentence was rightfully commuted after two.
Is the ability to buy influence for a personal issue odious and wrong? Sure it is. But it happens every day with every administration. That is not the story here. The story is about a broken court system that imposes trial taxes, that is uncaring and driven by a broken and outdated sentencing guidelines system.
Item: The sophisticated means enhancement of two points was created at a time when computers and cell phones were still novelties in our society. The enhancement is routinely applied in almost every case (so we hear- we don't proceed to sentencings often for reasons you fully understand). One judge recently commented that imposing a sophisticated means enhancement these days was like fining someone for speeding, and then doubling the fine for speeding while using a car.
The story here is not desperate and wealthy people trying to get a pardon or commutation. The deeper story is why? The answer is that because the system is broken. It sends people to prison because that is what it knows how to do. That their money and take their liberty and tell them "don't do it again" when you get out in wheelchair -if you get out at all.
If Joe Biden wants to do things different than Trump then he should start by doing what Trump started- criminal justice reform. The First Step Act was a good first step. But more is needed. The Guidelines need to be fixed. Just like the crack/power dispute created disparate sentences during the war on drugs, the "intended loss" language of 2B1.1 of the sentencing guidelines needs to be repaired because it is broken and it is allowing prosecutors to seek multiple decade sentences where there was no loss.
How about the fact that there is no expungement of a federal conviction? People with federal marijuana convictions from the 1970s still cannot get good jobs or loans. A federal conviction is like a nasty case of herpes- or that "1-800-cars for kids" song- it never goes away. A pardon is the only way a person get out from under a mistake made 20, 30, 40 years ago. The system, for many reasons, is broken.
So while we are no fan of the current President, we hope he empties the federal prisons. Pardon hundreds of people serving long minimum mandatory sentences who were drug mules like Alice Johnson who he pardoned at the beginning of his term. Pardon all white collar fraud cases with sentences over ten years where there was no real loss and no victim suffered (so not Madoff). Pardon or commute em all we say.
Make the criminal justice system great again. MTCJSGA just doesn't roll off the tongue.