In The Shadows ...

And Justice for All ...

June 19, 2018. Day 6.

We – in the United States – generally believe in the “rule of law.” The doctrine of the rule of law dictates that government must be conducted according to law. There are some essential elements which are indicative of the rule of law:
• Absolute supremacy of regular law as opposed to the influence of arbitrary power;
• Equality before the law;

So, what exactly is “law?” We all accept that the highest law in the United States is the U.S. Constitution which gives us our “unalienable rights.” Beyond that, the law is “a body of rules of conduct of binding legal force and effect, prescribed, recognized, and enforced by controlling authority.”

Most of us think that means that Congress writes the laws that govern us and the President signs them. Now I know – there are state laws, county laws, city laws but I’m talking about the big stuff; Federal laws generally involve matters that concern the entire country.

Not entirely true! There is the law and then there’s the enforcement of law.

The What: President Trump and Attorney General Jeff Sessions have already left a significant mark on the Justice Department. They have used short memoranda or subtle changes in enforcement strategy to quietly undo much of President Barack Obama’s criminal justice reform legacy. In its place, they have built a more draconian vision of law enforcement, centered around immigration. While many of these changes occurred without drawing public scrutiny, consequences have already begun to materialize in areas such as immigration enforcement. Some of the lesser-known changes include:

• Directed More Aggressive Federal Prosecutions - Federal prosecutors were encouraged to partner with state and local law enforcement for more aggressive prosecutions. A.G. Sessions pushed for an increase in the use of mandatory minimums was necessary to address rising violent crime even though research shows that overly punitive sentences have done little to reduce crime. He rescinded a series of memos that guided Justice Department policy on marijuana. Possessing marijuana is a federal crime but in 2013, then Deputy Attorney General James Cole issued a directive (called “the Cole Memo”) stating that federal prosecutors may decide not to prosecute marijuana offenses if such actions comply with state law, do not involve violence, do not fund the trade of more serious drugs, and do not otherwise implicate federal priorities..
• Resumed the Use of Private Prisons. - In February 2017, Sessions repealed an Obama-era directive that would have wound down the Bureau of Prisons’ (BOP) reliance on incarcerating prisoners in privately-run facilities.
• Decreased Federal Oversight of Police - “It is not the responsibility of the federal government to manage non-federal law enforcement agencies.” Instead, “local control and local accountability are necessary for effective policing.” Sessions also issued an order in July promoting an expansion of asset forfeiture, allowing state law enforcement to work with the federal government to forfeit seized property even before arrest or conviction.

The Imact: Although our level of crime is comparable to that of other stable, internally secure, industrialized nations, the U.S. has an incarceration rate that far exceeds every other country. Over the next three years, these shifts could cause the federal prison population to begin increasing again, reversing what small progress had been made to reduce federal over-incarceration. The growth in the U.S. prison population can be more closely attributed to ideological policy choices than actual crime rates. The record also shows that our country’s experiment with mass incarceration has not managed to significantly enhance public safety, but instead has consistently and disproportionately stunted the social and economic well-being of poor communities and communities of color for generations.

Further, the administration’s words and deeds on criminal justice could disrupt bipartisan efforts to build a fairer, more effective justice system at the state and local levels. We are now watching a high-stakes struggle being played out inside the Trump administration, between those who believe in the rule of law and those who advocate the law of the ruler.

On the side committed to the notion that we are a nation of laws and not men, you have Attorney General Jeff Sessions (to some extent), Deputy Attorney General Rod Rosenstein, and FBI Director Christopher Wray.

On the side of those who believe the Justice Department can be used as the president’s praetorian prosecutors to punish political foes are Trump and his White House enablers, aided by certain House Republicans and right-wing media lackeys.

Hey! Don’t we have a say in this? Not as long as we’re kept in the dark about what’s happening. Keep poking in the shadows! As Justice Brandies said, “The most important political office is that of the private citizen.”

I leave you with a final thought: “Never forget that everything Hitler did in Germany was legal.” ~ Martin Luther King, Jr.