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Contributed by The Watchman   
Wednesday, 07 February 2007
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The Border-Patrol Two Deserve Jail
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BAD FACTS AND BAD LAW
Myopic border-enforcement activists seem unconcerned about any of these facts — for them, much like anti-death penalty obsessives, the cause is a higher calling. Concededly, though, this case rankles ordinary Americans, too. That’s understandable given the severity, the equities, and the potential ramifications of the punishment.

There is broad recognition that bad agents should be weeded out of any police force. Compean and Ramos, however, have not just been terminated; they were socked with sentences of twelve and eleven years, respectively. This, in connection with an incident that arose out of a job which — their appalling conduct aside — is undeniably dangerous; an incident instigated by a drug dealer who was not prosecuted for crimes worth at least as much jail time as the agents received — an illegal alien felon who may end up with a big cash windfall premised on the absurdity that his purported American “civil rights” were violated. As a matter of policy, moreover, the effectiveness of honest Border Patrol agents could be compromised if they come to believe the kind of energetic policing we need may be met by prosecution — rendering them and the rest of us more vulnerable.

There are answers to all these concerns, but they are not particularly satisfying. The truism that bad facts make bad law was never more true — and these facts are ugly.

For starters, should these guys really have been prosecuted at all? Wouldn’t it have been enough just to fire them? If the agents had only acted dishonestly, you might say that. But the behavior here was egregious and could easily have resulted in murder. That’s unacceptable under circumstances where the agents were in no danger and the unarmed man they shot was running away after trying to surrender. But leaving the inexcusable comportment aside, there are a few things the uninitiated should understand.

Though they work for the public, federal employees, including law-enforcement agents, are permitted to unionize and fight the public every step of the way, no matter how abundantly clear it is that they should be disciplined or terminated for betraying the public’s trust. No federal official more cries out to be fired than one we trust with a gun and a badge who proves himself unfit to bear the attendant responsibilities. Yet, our system arms even them with administrative rights that make termination prohibitively difficult. Moreover, it gives these bad actors powerful incentives not to accept termination without a fight. Because law-enforcement work can be physically stressful and dangerous, agents have very attractive benefits — including retirement after comparatively short careers with a pension based on their highest-income years of service. There is too much at stake to go away quietly.

Criminal conviction is often the only way to cut through the burdensome, uncertain administrative process. Agencies sometimes will not take disciplinary action absent charges. Consequently, if agents don’t agree to resign over outrageous misconduct, the only sure way to get rid of them is to indict and convict them.

Okay, you say. But did the indictment really have to be this severe? After all, the sentences are extremely harsh. Here, the agents have mainly themselves to blame. The government offered them very generous plea deals. Compean and Ramos spurned them. If defendants decline to plead guilty and insist on proceeding to trial, it is standard operating procedure for the Justice Department to bring its best case — which includes charging the offense that carries the highest penalty among all readily provable crimes. Indeed, it is common for the government to insist on the most severe, readily-provable offense even at the plea-negotiation stage — something Sutton’s office did not do.

In this case, that offense was the discharge of a firearm during a crime of violence. This crime carries a mandatory-minimum ten-year jail sentence which must, by statute, be imposed in addition to the sentence of incarceration on any other count of conviction. It is Congress that enacted this law — not the Justice Department. Congress (including some of the members complaining most vociferously about this case) fears that judges will be too soft on several types of crimes, including gun crimes. Rather than trusting them to impose reasonable sentences, it forces their hand. It’s a great racket: if the court ignores the law, Congress goes berserk at the judiciary; if the Justice Department applies the law, congressional ire is directed at the executive branch. Meanwhile, the legislators who foisted this rigid, unforgiving law on us never have to apologize for anything. In any event, Congress carved out no exceptions from this statute for law-enforcement personnel accused of crimes committed in the line of duty.



Last Updated ( Tuesday, 06 March 2007 )
 
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