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George Will: Senators Push To Weaken Mandatory Minimums

Libertarians believe government should have a compelling reason before it restricts an individual’s liberty. Today’s liberals believe almost any reason will do, because liberty is less important than equality, fraternity, fighting obesity and many other aspirations. Now, however, one of the most senior and liberal U.S. senators and one of the most junior and libertarian have a proposal that could slow and even repair some of the fraying of society.

Seven-term Democrat Pat Leahy’s 38 Senate years have made him Judiciary Committee chairman. Republican Rand Paul is in his third Senate year. They hope to reduce the cruelty, irrationality and cost of the current regime of mandatory minimum sentences for federal crimes.

Such crimes are multiplying at a rate of more than 500 a decade, even though the Constitution explicitly authorizes Congress to criminalize only a few activities that are national in nature (e.g., counterfeiting, treason, crimes on the high seas). The federal government, having failed at core functions, such as fairly administering a rational revenue system, acts like a sheriff with attention-deficit disorder, haphazardly criminalizing this and that behavior in order to express righteous alarm about various wrongs that excite attention.

Approximately 80,000 people are sentenced in federal courts each year. There are an estimated 4,500 federal criminal statutes and tens of thousands of regulations backed by criminal penalties, including incarceration. There can be felony penalties for violating arcane regulations that do not give clear notice of behavior that is prescribed or proscribed. This violates the mens rea requirement — people deserve criminal punishment only if they intentionally engage in conduct that is inherently wrong or that they know to be illegal. No wonder that the federal prison population — currently approximately 219,000, about half serving drug sentences — has expanded 51 percent since 2000 and federal prisons are at 138 percent of their supposed capacity.

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