So we get righteous fury over the FBI’s mistakes in obtaining wiretaps for former foreign policy adviser Carter Page, even as Republicans vote to reauthorize the law that allowed those taps and reject proposed reforms. We get President Trump bashing the federal law enforcement apparatus even as he praises countries whose governments execute people accused of selling drugs. We get angry denunciations of the “jackboots” who arrested Roger Stone and raided Michael Cohen’s office and residence (though they were both treated far better than, say, your average suspected pot dealer), while Trump encourages police brutality against everyday suspects and Attorney General William P. Barr declares that people who criticize law enforcement for brutality against black people aren’t worthy of police protection. And now we have Stone, and Barr’s decision to rescind the seven-to-nine-year sentencing recommendation filed by the federal prosecutors working on the case.
Generally speaking, the federal sentencing guidelines are far too harsh across a wide array of crimes. And generally speaking, any time the average defendant gets a break from those guidelines is a net win for justice. But when someone gets a break from the laws that apply to everyone else because that person has unique access to power, it’s a net loss for justice. This is particularly true when the crime for which the person is getting the break is that of lying to protect the person who is granting it. And all the more so when the person granting the break is the country’s chief law enforcement officer.
It’s tempting to celebrate the fact that Barr’s intervention means that at least one person might get a sentence less draconian and more proportional to his crimes. But this sort of justice doesn’t trickle down: Five years from now, no drug conspiracy defendant is going to get a break after he’s caught lying to federal law enforcement because Barr intervened on Stone’s behalf back in February 2020. Instead, we get tiered justice: one kind for the connected, another for everyone else.
Let’s be clear: Barr intervened on Stone’s behalf because Stone protected Trump. This is even though Stone violated a gag order in his case — more than once — and threatened a federal judge. (Stone had previously publicly threatened to kill “globalists” and promised a civil war if Trump is impeached.) Even so, I don’t think Stone should go to prison for nine years. But you can bet prosecutors would be asking for at least as much time if, say, a black nationalist or Islamist extremist had done what Stone has done.
That’s the pernicious thing about tiered justice: It blinds its recipients to the system’s everyday cruelty. So long as no one in the political class experiences the worst of it, there’s no incentive for the political class to care.
This week, as Trump and his supporters howl out allegations that Stone is the victim of a political vendetta even as he gets breaks and special treatment, they distract from the fact that regular citizens are treated far worse. Those people don’t have access to power, and because they don’t have access to power, no one can claim political persecution. But if anything, we should be more concerned about the casual, everyday injustice dispensed in courtrooms across the country — the kind inflicted not because of partisanship, but because the same political class that gets special treatment when it is accused of crimes has designed a punitive, retributive system that is impervious at best to the well-being of the people churned through it.
There’s no better example of the Trump administration’s embrace of tiered justice than the one pointed out by Nancy LeTourneau at Washington Monthly. On the very day that Barr intervened to rescind the Justice Department’s sentencing recommendation for Stone, he also gave a speech to a conference of county sheriffs in which he attacked progressive, reform-minded district attorneys for their refusal to prosecute certain types of crimes. He argued that those decisions jeopardize investigations of more serious crimes that “depend heavily on obtaining information from members of the community.”
Barr was accusing progressive DAs of undermining criminal investigations by enabling witness intimidation. One of the crimes for which Stone was convicted: undermining a criminal investigation by threatening a witness.