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In over 10 years as a lawyer, I’ve seen a lot of criminal justice cases. I’ve seen people convicted of murder and get a few decades in prison, and I’ve seen people get life sentences when they should have gotten a few years in prison. Now, there’s a national movement to get liberal prosecutors not to prosecute crimes at all. In addition, the federal government has sued Alabama over the condition of our prisons. 

Lest we be caught in a false dichotomy of locking everyone up for life or letting everyone go free, now is the time to think carefully about criminal justice. 

In Alabama, criminal justice reform is a taboo subject. Unfortunately, most proponents of criminal justice reform go about it the wrong way. Most of them are liberal. Whether lawyers, advocacy groups, or judges, they often try to find ways to go easier on convicts because they feel bad for them. The problem, then, is that compassion becomes more important than justice.

The conservative response to liberal advocacy has been to toughen up on crime. That’s certainly better than the alternative of letting criminals go free because we feel bad for them. But as with any form of backlash, there’s a possibility that we could swing too far back in the other direction. In some cases, I think we’ve done that. 

What does just reform look like?

Take folks like Willie Conner, an old client of mine who got a life sentence for stealing a nail gun from Lowes. They’re not murderers, rapists, or anything worthy of a Class A felony or a life sentence. They do things like steal. Undoubtedly that is wrong and needs to be punished. But the question is: how severely? I fear that the drive to hit back as hard as we can has gone beyond justice in some cases and resulted in overkill. 

So the question has to be asked: what does just reform look like?

In short, I would go back to what God told us, which every reasonable person in their heart knows to be true.

“If a man injures his neighbor, just as he has done, so it shall be done to him: fracture for fracture, eye for eye, tooth for tooth; just as he has injured a man, so it shall be inflicted on him.” (Leviticus 24:20.)

The touchstone of justice is proportionality: when someone injures another, he should pay a proportional penalty for what he did. 

Sometimes we get so caught up in deterrence as the main objective of criminal law, which leads to a culture of overkill. But when justice is served, then the deterrent effect naturally follows.

So what does this mean for criminal law in Alabama? I do not pretend to have all the answers, but here are some thoughts.

First, prosecutors should have discretion so that they can pursue a just penalty. Too often it is only liberal prosecutors who give their attorneys discretion, which turns on how bad they feel for the accused. Conservatives counter by taking discretion away from prosecutors and ordering them to hit as hard as they can. I recommend breaking the crazy cycle by giving prosecutors discretion as long as the objective is to seek a proportional penalty for the wrong done. 

Second, on the other hand, we cannot tolerate lawless rogue prosecutors who refuse to enforce the law at all. We’re seeing that across the country, and it cannot happen here. I’m for giving prosecutors some discretion, but there’s a difference between that and dereliction of duty. 

Third, the Legislature needs to consider repealing the Habitual Felony Offender Act. Too often that Act produces outcomes like Willie’s case. Whether it’s thieves or drug users, they deserved to be punished — but with life sentences based on nonviolent crimes? The HFOA causes that to happen too often, and that’s not justice.

Fourth, we need to push harder for the death penalty for murderers and rapists. The only reason we haven’t is because of decades of bad Supreme Court precedent, but the current Court is willing to overrule bad precedent if asked.

Would this be political suicide for Republican lawmakers and district attorneys? I think not, as long as they can explain to the voters that criminal law is about justice and that all penalties for crimes will be evaluated in that light. “Justice, and only justice, you shall pursue” (Deuteronomy 16:20). 

Matt Clark is the President of the Alabama Center for Law and Liberty, a conservative nonprofit law firm that fights for limited government, free markets, and strong families in the courts. His column appears every Friday in 1819 News. The opinions expressed in this column are those of the author. The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to Commentary@1819News.com.

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