The Justice Department's move to significantly expand the number of drug-offense convicts eligible for clemency has troubling implications, according to former federal prosecutor Andrew McCarthy.
"The Obama administration is using the pardon power which, let's face it, is a power the president has under the Constitution," McCarthy told "The Steve Malzberg Show" on Newsmax TV.
"But using the pardon power not to correct injustices in particular cases, but to essentially rewrite the federal narcotics laws to something that he's more comfortable with...."
On Monday, Attorney General Eric Holder said the White House had directed him to consider additional clemency applications, "to restore a degree of justice, fairness and proportionality for deserving individuals who do not pose a threat to public safety."
In addition, starting in August, low-level, nonviolent drug offenders without connections to gangs or drug cartels will no longer be hit with charges that carry mandatory sentences.
"This is an administration that philosophically disagrees with certain aspects of the federal narcotics laws — particularly where the mandatory minimums kick in," McCarthy said.
"Once you reach a certain threshold amount of narcotics … a five-year or a ten-year mandatory minimum sentence can kick in. The reason that those were put in by Congress is … a lot of federal judges were not taking big narcotics offenses seriously enough.
"So Congress was trying to make sure the worst drug offenders by volume had to do a certain amount of time in jail."
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But McCarthy says the strict laws were also put into effect to protect minority communities.
"If you want to talk about disparate impact, it's black, Hispanic — essentially minority communities that are the most plagued by things like crack. It was largely in protection of those communities that these narcotics laws were put in in the first place," he said.
"It's all well and good I suppose for [The Rev.] Al Sharpton to worry about the drug offender. A lot of us are more worried about the communities that are ripped apart by these offenses."
McCarthy — a former Asst. U.S. Attorney for the Southern District of New York, who prosecuted Sheik Omar Abdel Rahman and eleven others in the 1993 World Trade Center bombing — said Holder and President Barack Obama tend to downplay the crimes of those behind bars.
"They talk about small non-violent drug offenders and I think people hear that and they come away thinking that there are people languishing in federal prison because they were using cocaine themselves or they were smoking marijuana," he said.
"In federal narcotics prosecutions, because the states basically deal with user offenses, the federal government concentrates its prosecution efforts, its investigation efforts on narcotics felonies.
"If you're in federal prison on the basis of a drug conviction, you're there for being a felon who is distributing narcotics, not just some poor guy who is smoking marijuana and gets swept up in federal prison."
McCarthy was disturbed by the 6-2 vote by the Supreme Court that further chipped away at affirmative action by upholding a voter-approved Michigan law that banned the practice in decisions to admit students to state universities.
Justice Sonia Sotomayor, who wrote the sole dissenting opinion, read excerpts from the bench, calling the decision a blow to "historically marginalized groups, which rely on the federal courts to protect their constitutional rights."
"It's a sad day that there are two justices who are in dissent on this. What we're dealing with here is the Fourteenth Amendment says that everybody gets equal protection under the law," McCarthy said.
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"The case presented the question of whether the Fourteenth Amendment essentially forbids what it required, by basically saying if the people of the state get together and say we want in our Constitution what the Fourteenth Amendment has, which is equal protection under the law, how can that be racially discriminatory?
"In essence what they're saying is no discrimination and in the whacko world that the New York Times and Justice Sotomayor live in, saying no discrimination is somehow discriminatory."
McCarthy said the split vote opens the door to other court challenges.
"Justice [Antonin] Scalia is quite right when he says the Fourteenth Amendment means what it says and courts should get out of this nasty business of dividing the country by race," he said.
"We have enough politicians doing that and the courts should not be in that business."
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