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OPENING ARGUMENT - Irrational Excesses, Barbaric Penalties and Political Opportunism OPENING ARGUMENT - Irrational Excesses, Barbaric Penalties and Politic...

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OPENING ARGUMENT - Irrational Excesses, Barbaric Penalties and Political Opportunism



What do Rep. Charles B. Rangel (D-N.Y.), former Attorney General Edwin Meese III, the American Bar Association, a federal prisoner named Rita Gluzman, and Kenneth Starr's more ardent critics have in common?

All have arrived at the view that the criminal justice system has become an engine of often irrational excess. And all, to varying degrees, are right.

Congress, President Clinton, his predecessors, their counterparts in the states, and the American people have over the past 30 years or so created a system that routinely federalizes the prosecution of crimes better left to state and local authorities, wastes tax dollars on unneeded prisons, and frequently veers into grotesque cruelty.

The most clearly wronged victims of these malignant trends are not those pursued by Starr, but the many thousands of young people who have seen their lives wrecked by the draconian, Clinton-supported mandatory minimum prison terms that Congress has adopted for nonviolent, relatively minor drug crimes. Many of these prisoners are doing five, 10, even 20 years. A hugely disproportionate number of them are from poor black and Hispanic families.

This racially skewed incarceration boom got a big push in 1986 and thereafter from congressional Republicans and Democrats alike. It was embraced by Clinton.

The reason for this bipartisan love of locking up is pure political opportunism: While hammering small-time drug defendants has little or no impact on the drug trade or on violent crime, the public's lust for punishment means that bad policy makes good politics.

''I question the efficacy of incarcerating thousands of poor, nonviolent, first-time drug offenders who are illiterate, addicted, and unemployable,'' Rangel said in a letter published in the Feb. 22 Wall Street Journal.

''Most inmates are not chronic criminals when they enter the justice system, but by the time they are reintroduced into society, many have earned a Ph.D. in criminality.''

Well put. Rangel should tell it to the man who owes him for his passionate fight against the heartless Republican impeachment horde. Clinton's support for inhumane prison sentences puts him well to the right of the many Reagan-appointed judges who see these laws as ''savagely severe,'' in the words of Judge Richard Posner of Chicago. Indeed, on this issue, Clinton and Attorney General Janet Reno are to the right not only of Reagan but of Ed Meese.

Clinton has made compassionate-sounding noises about the racial impact of our--which is to say, his--crime policies. ''Something is terribly wrong,'' he said on the day of the Million Man March (Oct. 16, 1995), in a reference to studies showing almost one-third of black men in their 20s to be behind bars, on parole, or on probation. ''That is a disproportionate percentage,'' Clinton noted, ''in comparison to the percent of blacks who use drugs in our society.''

So it is. But two weeks later, the very same President Clinton signed a bill that helped perpetuate the very same disproportionate incarceration of blacks, by blocking a Federal Sentencing Commission proposal to ease the especially barbaric crack cocaine penalties that have fallen almost exclusively on blacks.

''Families are still being split up by these stupid, unnecessarily long prison sentences,'' says Julie Stewart, president of a group called Families Against Mandatory Minimums. ''It's clear that this President really isn't about keeping families together, or he would have done something about these laws five or six years ago.''

Please note that I am not talking here about throwing the book at dangerous, violent, or career criminals (which is fine by me). I am talking about casting a punitive net so broad and indiscriminate that it strips judges of the discretion to fit penalties to crimes and criminals, and crams nonviolent, first- time drug couriers into prison alongside brutal predators.

To be sure, the Clinton Administration deserves only part of the blame. Unduly harsh sentences are also popular with state governments. The states account for most of the surge in prison populations from 200,000 in 1970 to 1.2 million today. (Including local jails, the totals come to 330,000 in 1970 and 1.8 million today.) And this surge started long before Clinton became President.

So did another unhealthy trend, deplored in a Feb. 16 ABA task force report titled ''The Federalization of Criminal Law.'' The 16-member panel was headed by Meese, who is more used to being a punching bag for the liberal-leaning legal establishment than a spokesman for it. He lends bipartisan heft to the ABA report's long-overdue conclusions.

There was only perfunctory media attention to the ABA report because this is bland stuff: no charges of racism or ''sexual McCarthyism,'' no summons to yet another war on drugs, no purple prose.

Still, the message is worthwhile. Although crime rates have fallen, the ABA report explains, the proliferation of new federal criminal prohibitions deserves none of the credit: ''There is no persuasive evidence that federalization of local crime makes the streets safer for American citizens.'' This is because the properly limited (albeit rapidly expanding) number of federal law enforcement officials can conduct only about 5 percent of all prosecutions.

At the same time, federalization does subtle but pervasive damage: It gives federal prosecutors too much inherently arbitrary and unreviewable discretion to focus on a tiny percentage of all possible targets; it clogs federal courts with garden-variety criminal cases, diverting them from national problems such as international terrorism, espionage, bribery of federal officials, big antitrust cases, white-collar fraud, and multistate drug conspiracies; it disrupts the federal-state balance; it moves the nation ''rapidly toward two broadly overlapping, parallel, and essentially redundant sets of criminal prohibitions, each filled with differing consequences for the same conduct.''

The vast majority of criminal justice experts--including federal and state judges led by Chief Justice William H. Rehnquist, state (and some federal) prosecutors, defense lawyers, and others--agree that politicians create only ''the illusion of greater crime control'' (in the ABA report's words) when they court votes by federalizing crimes traditionally handled by states.

In other words, the politicians have been making unwise crime policy by paying too much heed to the ''wisdom of the American people,'' to borrow a phrase that has recently gained currency.

Of course, many of the new federal laws--those aimed at carjackings and drive-by shootings, for example--do relatively little harm (and are worthless) because they are hardly ever enforced. And the crimes targeted by the new laws should be prosecuted by someone. But why make them federal cases?

Consider Rita Gluzman. She was convicted of instigating and joining in the ax murder of her estranged husband, Yakov Gluzman.

How did this classic state-law murder end up in federal court? It was put there by the Violence Against Women Act of 1994. This Clinton-sponsored gift to the feminist lobby makes it a federal crime to inflict ''bodily injury'' on one's ''spouse or intimate partner,'' if one happens to cross a state line with violent intent.

So wife-beating is now a federal crime, depending on whence the wife-beater arrives at the scene. As it turns out, husband-killing, too. Gluzman and her accomplice drove a few miles from her home in Saddle River, N.J., to her estranged husband's place in Pearl River, N.Y. Had they driven from Buffalo--a few hundred miles away--there would have been no federal jurisdiction.

Now Gluzman, still protesting her innocence, is asking the Supreme Court to strike down the 1994 statute as unwarranted by any federal interest. Her constitutional argument seems plausible but a long shot, and even if she wins, she will face prosecution in state court. But Congress and the President should ask themselves exactly what purpose it serves to take cases like this, not to mention the more routine domestic spats that sometimes sprawl across state lines, away from the states.

Meanwhile, critics of Kenneth Starr--a villain far worse than any ax murderer, in the depictions of many--have suddenly discovered that federal prosecutors do harsh things, like seeking to scare potential defendants into turning state's evidence, dragging complicit mothers in front of grand juries, and punishing people who commit felony crimes. In short, prosecutors are not terribly nice.

But there are prosecutors less nice than Starr. Including those Clinton appointees who use Clinton-approved drug laws to lock up a generation of inner-city youths.

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