“Hunter was only singled out because he is my son,” Joe Biden said Sunday as he issued a pardon that spared Hunter Biden from prison for his gun and tax crimes. That was true, but not in the way the president intended.
Naked nepotism allowed Hunter Biden to avoid the consequences of a criminal justice system that punishes people for behavior that violates no one’s rights and compounds that punishment when they demand the trial to which they are entitled under the Sixth Amendment. While the pardon was undeniably hypocritical, these injustices are real and affect many people who lack the political connections to escape them.
Last June, a federal jury convicted Hunter Biden of three felonies based on his 2018 purchase of a revolver, which was illegal because he was a crack cocaine user. The case sits at the intersection of two policies that punish people for actions that are not inherently criminal.
As philosopher Douglas Husak has noted, drug and gun possession laws prohibit “inchoate offenses,” which involve behavior that is not necessarily harmful. They “do not prohibit harm itself,” Husak notes, “but rather the harm possibility of harm – a possibility that need not (and usually will not) arise when the crime is committed.”
Because Hunter Biden’s possession of a revolver did not harm anyone, his father argues, a prison sentence for that crime was not justified. While the president is correct, his position is blatantly inconsistent with his support for gun laws that allow such punishments.
The Biden administration has vigorously defended the arbitrary, constitutionally questionable gun law that Hunter Biden has violated, insisting that cannabis consumers are so untrustworthy and dangerous that the government has the right to threaten them with jail time if they dare exercise their Second Amendment rights to practice. And in 2022, the president signed a law that increased the maximum penalty for drug users who possess firearms, while creating an additional potential charge against them.
Joe Biden also complains that prosecutors threw the book at his son after a proposed plea deal collapsed under judicial review last year. But that’s par for the course when defendants insist on exercising their constitutional right to a jury trial.
In the weapons case, one felony charge that special prosecutor David Weiss was initially willing to drop after Hunter Biden completed a pretrial diversion program became three misdemeanor charges, all based on the same transaction. As a result, Biden faced a maximum sentence of 25 years in prison, quite a jump from zero time behind bars under the firm diversion agreement.
In the tax case, two felonies became three felonies and six felonies, all of which fell under a guilty plea Biden entered in September. That increased the maximum sentence to 17 years in a case in which Weiss was initially willing to recommend probation.
The dramatic escalation of possible sentences vividly illustrated the “trial sentence” that prosecutors routinely impose on defendants who force the government to prove its case. This threat helps explain why 97 percent of federal felony convictions are based on guilty pleas, a reality that turns jury trials from a promise to a fantasy.
A president cannot unilaterally change the laws that allow draconian punishments for trivial offenses and give prosecutors enormous power to extract guilty pleas. But he can mitigate the resulting injustices by exercising his clemency power, which Joe Biden has largely failed to do so far.
During his 2020 campaign, Biden pledged that he would “use the President’s clemency power to secure the release of individuals facing unnecessarily long sentences for certain non-violent crimes and drug offenses.” But as of this week, he had received more than 10,500 petitions for commutation and granted only 132, or about 1 percent.
That’s about the same as Donald Trump’s and a fifth of Barack Obama’s. But Biden still has a few weeks to show that his mercy extends beyond his own kin.
© Copyright 2024 by Creators Syndicate Inc.
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