Jerome Timms (Republican Congressman)
The conservatives first brought up eliminating the mandatory minimum sentences and vastly cutting back the drug war when they only had the House. The liberals thought this was great—and they immediately got to the conservatives’ right on it, calling them soft on crime and so forth. But no one bought that—the conservatives were plenty tough. They just wanted to be smart about the problem, and more important, fair.
It was black urban Democrats who joined the Republicans to pass the bill. Hillary vetoed it—she said, “Someone has to protect the village’s children.” By then my mom was in jail and I was a teenager. I was disgusted. Hillary knew better than us what was good for us? I understood then how sometimes racists smile at you like they’re your friends. And how sometimes the people other people tell you are racist aren’t.
I started working as an aide in Congress on the big Criminal Review Project. We went through every federal law, statute, and regulation and recommended changes to reduce penalties, make them clearer, or get rid of them entirely. When we started, the experts told us the average American was inadvertently committing three felonies a day. That’s unacceptable in a free country.
There were just too damn many laws, too damn many rules, and too damn many crimes. When everything is a crime, everyone is a criminal. And everyone is then at the mercy of the government.
Prosecutors had too damn much discretion, and far too many people were getting caught up in the criminal justice system. Ending that un-American state of affairs was the right thing to do, and for Republicans, it was a politically smart thing to do.
It was not just about drug laws, though drug laws presented a huge target for politically savvy reform. Look at me—my mother’s release from prison was because of it, and reform won Republicans a lot of credibility.
It was also intellectual property law where huge corporate interests turned civil infractions into criminal offenses. It was computer laws where simply breaching a contract was a crime—a crime, punishable by jail! Did that protect society? No, it was not just a waste of judicial resources but it put the government in the role of enforcer for companies who, if they wanted their intellectual property protected, should have hired lawyers to go do it.
What do you call a system that made it a crime to “jailbreak” your iPhone? We conservatives called it ridiculous. But it used to be a reality.
The liberals, aided and abetted by some Republicans, had created a system that criminalized conduct that should not, under any reasonable, rational, or just conception, be considered criminal—civil maybe, but in a lawsuit you only seek money. Here, they would throw you in jail.
I remember one kid, a genius in Boston, got indicted for going into a computer system. He didn’t damage anything. Sure, what he did was wrong, but he was looking at years in jail—years of his life! He killed himself. That’s not just crazy—it’s unjust.
Think about it—thanks to a craven Congress doing the bidding of a bunch of giant companies, you could be labeled a felon and put in prison—at our expense, mind you—for years for the “crime” of displeasing some conglomerate.
Moreover, when you combined these unjust laws with the nearly unfettered discretion of prosecutors, you had a justice system that was functionally indistinguishable from an injustice system.
The goal of prosecutors stopped being to seek justice—it was to get convictions. Part of that was our fault collectively. Reacting to the shameful mugger-hugger liberalism of the past, we encouraged a crackdown on criminals. Fair enough, but then when crime stopped being such a concern, we turned away and the prosecutors, acting in our names, kept it up without accountability. You could hardly blame them—it was up to us as citizens to ask not just how many convictions they got, but were they just results?
Well, we constitutional conservatives started doing that. A lot of religious folks were very focused on reforming the justice system, and so were libertarians. Then you added the minority community that felt itself victimized and you had the ultimate strange bedfellow coalition.
Criminal justice system reform was a twofer for constitutional conservatives—it was the right thing to do, and it was a powerful wedge aimed right at the heart of the liberal coalition because it split out minorities and the young.
When everything was a crime and liberals chose who got prosecuted (people like us) and who didn’t (other liberals—did you see any arrests after the 2008 Wall Street scandals?), it gave them tremendous power.
We thought, “Let’s take it away from them, and in the process show young people and minorities why conservatism is their friend.” The liberals walked right into the trap. They couldn’t help but resist because every reform we proposed would strip them of power.
When we took power again, we started reigning in the “fourth branch” of government—bureaucracy—by reasserting Congress’s proper role as creators of laws rather than delegators. We tried to withdraw from the various agencies the power to “interpret” law through regulations in such a way as to create criminal conduct. We felt that the federal government had no business criminalizing behavior without a vote by the Congress and the signature of the president on the entirety of the law. Elected representatives had to personally vote on—and be accountable for—each infraction that could support criminal liability.
When the liberals started whining, we threw the idea of fining some little kid for helping an injured bird back in their faces.
We pushed to require that every criminal law have an intent element—no more strict liability violations where the government need not prove the specific intent to commit the alleged “crime.” When the libs whined about this—they really thought this was a great issue to base their comeback on—we would give the examples of people ruined because some chemical spilled on their land and they didn’t even know it, but were prosecuted anyway because intent wasn’t an element of the crime. President Marlowe was totally behind us.
While the Democrats were busy protecting their ability to inflict injustices on innocent Americans, we hit them again, this time with a real nuke. Prosecutors used to be able to load up dozens of charges for the same thing against an accused. These are called “counts.” With so many counts, there would be the potential for enormous sentences, essentially forcing the accused to plea bargain out or risk decades in jail if he demanded his right to trial. It was designed to encourage plea bargaining, but it caught up innocent people because they couldn’t risk demanding a trial. Sure, sometimes lots of charges are justified—there are bad people out there—but the risk to innocent folks was far too great. It was just wrong, and we stopped it.
We used a four-pronged approach to solve other problems with the system.
First, our reforms allowed the defendant to put exonerating evidence before the grand jury. Indictments used to be handed down after the grand jury heard only from the prosecutor. We empowered citizens once again to truly decide who gets prosecuted and who doesn’t.
They used to say a prosecutor could get a grand jury to indict a ham sandwich. That’s a disgrace—we directed grand juries to be informed that their most important duty was not to indict if the prosecutor did not meet his burden. That changed the whole focus of the system, from assembly line into an individualized process designed to protect the innocent.