When Eric Holder announced future leeway for prosecutors to bring less serious charges against certain offenders, he moved into the realm of do-ends-justify-the-means. While it makes sense to charge those accused of say, smoking a small amount of marijuana, with something does not carry large (often incarceration-centered) penalties, it’s a little strange to say that, by executive order, the crime that you commit today is, while the same action and infraction, different than the same crime committed yesterday.
In the best case scenario, Congress would settle this through passage of laws that change the potential consequences of various crimes, perhaps splitting some crimes into regular and aggravated varieties. This way, when you are guilty of possession of drug paraphernalia, for example, you aren’t charged with criminal mischief for the sake of expediency.
It remains to be seen whether prosecutors will charge people with crimes that, to put it bluntly, they didn’t commit. Legal definitions tend to be either quite narrow or else meaninglessly broad, and I suppose we’ll see an uptick in broadly-defined infractions and movement away from narrowly-defined ones.
The real problem is the same that has existed for years – a member of Congress who moves to reduce penalties is vulnerable to charges of being “soft on crime” in the next election. Thus, we have an incentive structure that leads to the appearance of strength as opposed to the reality of good policy. Perhaps we will find the political will to enact good policy, someday. In the meantime, what we have to settle for is confusingly reasoned executive action with ends that are much more reasonable than the means seem to be.