RUTHFULLY YOURS

No sooner had Robert M. Gill received his get-out-of-jail-free card than he was back at it again. One of a record 1,715 felons to have their lengthy jail sentences commuted by President Barack Obama, Gill celebrated his dumb luck — sudden release from his life-imprisonment term for a major narcotics-trafficking conviction — by attempting to sell two pounds of cocaine. He was captured by Texas police after a violent collision at the end of a high-speed chase.

Having inevitably done the crime, he’ll now probably do the time that should never have been interrupted. Obama justified the release of Gill and hundreds of hardened criminals on the laughable fiction that the federal penitentiaries overflow with “non-violent drug offenders.” You’re supposed to imagine jails teeming with sad-sack Millennials nabbed while toking on a joint behind the local Starbucks. Actually, it is settled law that guns are “tools of the trade” of drug dealing (which is why the cases typically feature evidence of weaponry — and often separate charges for deploying weapons in protection of the lucrative cash business). A quick perusal down the long list of Obama commutations, which includes several gun crimes along with drug offenses, puts the lie to the convict-as-victim storyline. Heather Mac Donald is right: “Prison remains a lifetime achievement award for persistence in criminal offending.”

In Obama world, there was an exception to this wisdom. The just-departed administration was just as anxious to send innocent business executives to jail as it was to spring actual criminals back onto our streets.

The vehicle for this perversion of justice is known as the “responsible corporate officer” doctrine. The Supreme Court, which created it, may soon have the chance to revisit and bury it. The Justice Department, now under the direction of Attorney General Jeff Sessions rather than Obama’s anti-corporate zealots, should provide the shovel.

It is a bedrock principle of the criminal law that there may not be liability for a bad act in the absence of bad intent — mens rea. In fact, this is the principle that FBI director James Comey was purporting to defend — not very convincingly — when the Obama Justice Department strained to avoid indicting Hillary Clinton for mishandling classified information. The requirement of mens rea for criminal liability does not mean absent-minded wrongdoers are off the hook for the damage they cause, not by a long shot. We have a very elaborate civil-justice system to address just such harms. It is not unusual for civil judgments to run into the tens of millions of dollars. If the suffering caused by a corporation is significant, civil lawsuits, including lawsuits brought by the Justice Department and government regulatory agencies, can put the company out of business.

But this is not enough for the anti-capitalist Left, for whom there is no justice but “social justice” — a morality play in which minority men are imprisoned owing solely to systemic racism while greedy executives go unscathed despite exploiting the masses for profit. For every violent crime, there is an excuse; for every business-related accident, there must be a scalp.

Last year we experienced a rather spirited presidential election season. It was probably the fiercest of my lifetime. But we should not be troubled by heated political campaigns. They are the occasional episodes that mark a healthy democracy.

In one respect, however, the 2016 election campaign was quite troubling. We saw two of our most important legal institutions—the Supreme Court and the Justice Department—bend in the political winds.

Years ago, I gave a speech in which I tried to explain why some justices moved, over time, to a more activist posture, less restrained or principled—in other words, result-oriented. A major factor was the influence of the press. Hence the “Greenhouse effect,” referring to Linda Greenhouse, who covered the justices for the New York Times. The Supreme Court press is increasingly dominated by lawyer-journalists who reflect the change in the composition of law-school faculties, which are now almost uniformly left-activist. That political flavor was recently demonstrated by the stunningly uniform opposition at law schools to the nomination of Jeff Sessions as attorney general.

Since the press’s orientation is sympathetic to activist results, which I think it is safe to say are largely on the left, it is not surprising that the Greenhouse effect is more demonstrable vis-à-vis Republican appointees. And the effect has been particularly strong on Washington neophytes—judicial appointees who had not served in prior Republican administrations and therefore had not yet experienced the attacks of the mainstream press. The neophytes had not yet grown the thicker skin that Republican officials in the executive branch necessarily develop. Compare, for instance, Justices John Paul Stevens, Sandra Day O’Connor,Anthony Kennedy and David Souter with William Rehnquist, Antonin Scalia,Clarence Thomas,John Roberts and Samuel Alito. The latter five had served in Republican administrations, but none of the former had.