By Dan Riker
I have more reasons than Paul cited. First, what he talked about.
He is opposing her because she supports the current laws
allowing civil forfeiture of property when the owner has not been convicted of
a crime. The Huffington Post reports
that in her role as U.S. Attorney in New York she has seized about $13 million
in private property. Her office once held $447,000 in private property for two
years without ever charging the owner with a crime. When questioned before the
Senate committee considering her nomination for Attorney General, she said she
supports the current law.
I agree with Paul. This may be the only area of agreement
with him. There are so many other areas of disagreement between us, I
certainly would not vote for him. But I applaud his position here.
Now, here are my principal reasons for opposing her
confirmation.
In other testimony before the committee, she said she
supports the death penalty, saying she believes it deters crime. There is a
world of evidence collected over many years that disputes that belief. There was evidence in England when there
public hangings that the hangings actually caused more crime. We are among the
greatest users of the death penalty, in company with China, North Korea, Yemen,
and Iran. Isn't that wonderful company to be among? It is time for this nation
to join with other civilized nations and ban this barbaric practice. Maybe the
Supreme Court will do the right thing this term and end its use in the United
States forever.
Lynch also says she opposes the legalization of marijuana. I
have questions whether extensive use of it may lead to various kinds of health
problems, but current scientific studies of marijuana use do not support my
concern. There is plenty of hard evidence that cigarettes are far worse for our
health and they are legal. And the same is true about alcohol and it is legal
in much of the country. We tried outlawing it and we created organized crime.
We created the drug cartels and a huge prison industry by
declaring a war on drugs. It has been the longest war in our history and our
least successful. We have more than tripled the number of people in prison
since 1985 when mandatory prison sentences for drug offenses were made federal
law, and most of those people are in prison for non-violent drug offenses. And
nothing we have done has stopped the use of drugs. It just has increased the
cost.
When I was in law school back in the 1970s, one of the
assigned books in criminal law was then already a classic, The Limits of the
Criminal Sanction, by Herbert L. Packer, a professor at the Stanford
University School of Law. My copy of this book, first published in 1968, was
the 76th printing. That shows it was widely read, particularly in law schools.
I have to believe that Loretta Lynch has read it. It is a very scholarly
analysis of criminal law. His fundamental thesis was that the greater the
penalty applied to a criminal offense, the more valuable success in that crime
became. And it was especially true when it came to illegal drugs.
He wrote that the use of criminal law to try to control the
use of narcotics and other drugs was the greatest example of the misuse of the
criminal sanction. "A clearer case of misapplication of the criminal
sanction would be difficult to imagine."[i]
Just before that sentence he lists the results of reliance
on the criminal sanction to control drugs - and keep in mind, this was written
in 1968 before mandatory prison sentences and many of the other expansions of
the war on drugs.
"The results of this reliance on
the criminal sanction have included the following:
(1) Several hundred
thousand people (ed. now more than 2 million), the overwhelming majority of
whom have been primarily users rather than traffickers, have been subjected to
severe criminal punishment.
(2) An immensely
profitable illegal traffic in narcotics and other forbidden drugs has
developed.
(3) This illegal
traffic has contributed significantly to the growth and prosperity of organized
criminal groups.
(4) A substantial
number of all acquisitive crimes - burglary, robbery, auto theft, other forms
of larceny - have been committed by drug users in order to get the wherewithal
to pay the artificially high prices charged for drugs on the illegal market.
(5) Billions of
dollars and a significant proportion of total law enforcement resources have
been expended in all stages of the criminal process.
(6) A disturbingly
large number of undesirable police practices - unconstitutional searches and
seizures, entrapment, electronic surveillance - have become habitual because of
the great difficulty that attends the detection of narcotics offenses.
(7) The burden of
enforcement has fallen primarily on the urban poor, especially Negroes and
Mexican-Americans.
(8) Research on the causes, effects, and cures of drug use has been stultified.
(9) The medical profession
has been intimidated into neglecting its accustomed role of relieving this form
of human misery.
(10) A large and
well-entrenched enforcement bureaucracy has developed a vested interest in the
status quo, and has effectively thwarted all but the most marginal reforms.
(11) Legislative
invocations of the criminal sanction have automatically and unthinkingly been
extended from narcotics to marijuana to the flood of new mind-altering drugs
that have appeared in recent years, thereby compounding the preexisting
problem."[ii]
As a prosecutor, Ms. Lynch has been
outstanding. That is a crime-fighting job, not a law-making one. The role of Attorney General is different.
Yes, there is crime-fighting, but there also is law-making, or, at least
law-influencing. For example, the present Attorney General has stopped
enforcement of federal laws against marijuana in states where it has been
legalized. That is an act of discretion, but also of common sense.
The Attorney General of the United
States is the leading legal administrative official of the United States and
has great influence over legislation and over how existing laws are enforced.
It is very important that someone hold this position with a forward-looking
view, not one based on the past, refusing to see and acknowledge the wrongness
of the war on drugs.
One of the greatest mistakes of our
past has been the War on Drugs, including the criminalization of marijuana. No
sensible person can expect to enforce a law against a plant that can be grown
under artificial light in anyone's closet without violating the Constitution in
wholesale amounts.
The legalization, or at least
de-criminalization of marijuana would save millions of people from criminal
records and prison sentences that ruin their lives, and, at the same time, save
billions of dollars in law enforcement and prison costs. It also would
eliminate a major source of profit of the drug cartels.
Our Attorney General needs to have better judgment
that what Loretta Lynch has displayed.
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