- The Washington Times - Saturday, January 24, 2009

ANALYSIS/OPINION:

ANALYSIS/OPINION:

COMMENTARY:

On his way out of office, President Bush used his power of the pardon to commute the sentences of former U.S. Border Patrol agents Ignacio Ramos and Jose Compean, who had been sentenced to 11 years and 12 years respectively for shooting and wounding a fleeing drug smuggler in 2005 and then covering up the incident. It was the right move.

Ramos and Compean supporters no doubt would have preferred it if Mr. Bush had pardoned the agents — which would have cleared their criminal records. In that Mr. Bush had stood by U.S. Attorney Johnny Sutton’s prosecution of the agents, as well as the jury verdicts, this is the best outcome that was to be had.

When Mr. Bush commuted the 30-month sentence of Lewis “Scooter” Libby, the former aide to Vice President Dick Cheney, he did not fully pardon Libby. He let a $250,000 fine and two years of probation stand, although he did override the prison sentence because it was “excessive.”

No better word could describe the Ramos and Compean sentences.

Ramos and Compean say they thought Osvaldo Aldrete Davila was armed as he evaded arrest, but because he got away, there is no way to know if he was carrying a gun or just a shiny object. Mr. Sutton argued, and a jury concurred, that the agents realized they were shooting at an unarmed man. If Mr. Sutton is correct, their crime largely occurred in the heat of the chase — and never warranted sentences exceeding the usual plea bargain punishments awarded to crooked Border Patrol agents.

The reason for the long sentences — dumb laws. The federal mandatory minimum system, enacted by Congress in 1986, tacks 10 years onto a federal crime committed with a firearm. As Sen. Jeff Sessions, Alabama Republican, noted last year, the federal firearms sentence enhancement was “designed to deal with criminals who carry firearms in the commission of felonies and crimes of violence,” but was applied to law-enforcement officers who “came to work with no criminal intent, no mind set to commit any crime.”

Such is the problem with federal mandatory minimum sentences — they don’t recognize common sense.

We now know Mr. Bush gave no more pardons, but he had confounded critics who predicted the White House would hand out commutations to CIA interrogators, former Bushies, the rich and famous and corrupt politicians who got caught. Politico.com listed 10 “pardons to watch for” — including Ramos and Compean, as well as a full pardon for Libby, former Attorney General Alberto Gonzales and a former aide, and junk bond king turned ex-con Michael Milken. It turns out Mr. Bush freed the agents but did not issue a blanket amnesty for cronies, rich crooks and crooked pols.

The downside is that Mr. Bush was stingy with the gift of mercy. He withheld from the worthy and unworthy alike. He issued a mere 189 pardons and 11 commutations. He failed the families of unknown convicts who, like Ramos and Compean, were sentenced to draconian prison time, thanks to federal mandatory minimum sentences.

Last month, I have just learned, Mr. Bush denied the commutation application of Clarence Aaron, sentenced in 1993 to life without parole for a first-time nonviolent drug offense. Reread that - life without parole for a first-time nonviolent offense.

Maybe Mr. Bush believed he would look too soft on crime if he commuted Aaron’s sentence — if he were aware of the politically unconnected Aaron at all.

But there is nothing tough about a system that rewards career offenders who know how to game the system, while it puts small fish like Aaron away for decades to life. The status quo is neither tough nor smart — it’s mean and stupid. And expensive.

Had Mr. Bush commuted Aaron’s sentence, he could have shown his critics that he sought justice in unseen corners. He could have lived up to Alexander Hamilton’s defense of the presidential pardon - “One man appears to be a more eligible dispenser of the mercy of the government than a body of men.” Mr. Bush was that dispenser for Ramos and Compean, but not Aaron.

Debra J. Saunders is a nationally syndicated columnist.

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