The courts were responsible for the crime wave of the ‘70s. If nothing is done to stop them, they will spawn a new crime wave in the coming years.
While Democrats are howling about the need to clamp down on law-abiding gun owners, their elected officials and unelected judges are responsible for the potential release of thousands of our nation’s most violent gun felons. Obama has just announced the commutation of another 214 sentences, bringing his total to 562, dwarfing the number of the past six presidents combined.
One of the centerpieces of the Reagan-era tough-on-crime regime was the federal Armed Career Criminal Act (ACCA). ACCA established mandatory minimum sentencing for those who used firearms while committing crimes as a repeat offender. The bill helped spawn the most precipitous drop in crime in our nation’s history by taking the most violent criminals (not just “non-violent” drug offenders) off the streets. One statute, 18 U.S.C. § 924(e), created a mandatory minimum sentence of 15 years for those who had three prior convictions for a “violent felony.” Subsection (2)(B) defines “violent felony” as including crimes such as assault, burglary, arson or a crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another.”
In 2015, in an ever-creeping pattern of declaring itself above Congress and state legislatures regarding the criminal code, the Supreme Court in Johnson v. U.S. “struck down” that final clause of the statute, known as the residual clause, as unconstitutionally ambiguous. Just a few months ago, in another creeping pattern of applying their breaches in the Constitution retroactively, the Court in Welch v. United States applied this ruling retroactively to the thousands of people who were sentenced under this law since 1984. Thus, the worst of the worst within the prison system are now eligible to reopen their cases in front of Obama’s liberal judges (Obama appointed 40 percent of the district bench), even if they committed violent offenses, as long as they weren’t the handful of crimes enumerated explicitly in the statute.
The Court was in such a rush to apply this bullying of Congress retroactively that it decided the case just 18 days after oral arguments and allowed even those who already lost their habeas corpus claim to re-petition the court to modify or vacate their sentence. The district courts have been crushed with such petitions from career criminals and violent gun felons since April. According to federal data, roughly 16,900 criminals filed petitions to vacate their sentences from April-June. While there is no specific data on the nature of these petitions, it is abundantly clear they are a result of the Welch decision because every other three-month period dating back several years only saw roughly 1200-1800 petitions filed in the district courts.
This is a one-two punch against the people and their elected representatives and will exacerbate the existing crime wave. First, the Supreme Court vanquishes Congress by declaring itself king over the federal criminal code, then these cases get flipped back to the lower courts, which are chock full of liberal judges – the likes of which we’ve never seen before. Unmoored from the constraints of federal law, these judges will blow a hole wide open in the application of the criminal code to repeat violent offenders and set them free.
And make no mistake about it, these are the worst of the worst. In justifying the U.S. Sentencing Commission’s 2014 amendment reducing by two the offense levels assigned to the quantities that trigger the statutory mandatory minimum penalties for drug trafficking offenses – which has resulted in the early release of 6,000-8,000 federal inmates, with as many 46,000 more to come– Chairwoman Patti B. Saris still conceded the following:
The Commission carefully weighed public safety concerns, and based on past experience, existing statutory and guideline enhancements, and expert testimony, concluded that the amendment should not jeopardize public safety. . . . [E]xisting statutory enhancements, such as those available under 18 U.S.C. 924(c), and guideline enhancements for offenders who possess firearms, use violence, have an aggravating role in the offense, or are repeat or career offenders, ensure that the most dangerous or serious offenders will continue to receive appropriately severe sentences.
Indeed, even Attorney General Holder agreed that retroactivity should not be applied to those who received a mandatory minimum sentence for a firearms offense pursuant to 18 U.S.C. § 924(c) or an enhancement for possession of a dangerous weapon under the sentencing guidelines.
There are limits to the radicalism of even the Obama administration where electoral politics play a role. But this does not hold true for the courts. They hide behind the legal fiction of judicial review and judicial supremacism so they can enact even more radical policies than the political branches of government.
As always, the radical lower courts are taking these SCOTUS decisions and punching even bigger holes into congressional statutes. They are tossing out “crime of violence” statutes for all sorts of repeat offenders and have even expanded this ruling to criminal aliens. In March, I wrote about the Ninth Circuit invalidating deportations by illegally nullifying congressional immigration statutes. Last month, the Sixth Circuit “overturned” an immigration statute requiring the deportation of an immigrant who commits a crime of violence. The courts are now violating the sovereignty of the people and endangering the society by preventing Congress from deporting the types of violent immigrants our nation kept out since our founding.
If Hillary Clinton wins, she will enact domestic criminal policies and immigration actions that lead to a nationwide crime wave. But, as I warn in my book, if we don’t strip the courts of their illegal power over the criminal code and immigration law, we will suffer the same fate, irrespective of which party wins the election.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.