President Obama made appropriate use of his
clemency powers this week,
shortening the prison term of a drug offender who received a
sentence that everyone agreed was too long but for which there was
no other legal remedy. In 2006 Ceasar Huerta Cantu was sentenced to
17.5 years in federal prison after he pleaded guilty to conspiracy
and money laundering charges related to shipping marijuana from
Mexico to Virginia. That term was three-and-a-half years
longer than it should have been under federal sentencing
guidelines because of a mistake in Cantu’s presentence report,
which erroneously listed his “base offense level” as 36 instead of
34. Cantu’s lawyer never noticed the mistake, which Cantu himself
discovered in 2012 after his family mailed him a copy of the
report. By then he had missed the deadline for asking the courts to
shorten his sentence.
Cantu did receive a two-and-half-year sentence reduction in
exchange for assistance in an unrelated case. Obama’s commutation
shortens the amended 180-month sentence to 138 months. As a result,
Cantu will go free in May 2015, taking into account time credited
for good behavior. “It’s hard to imagine that someone in the
federal criminal justice system could serve an extra three-plus
years in prison because of a typographical error,”
said White House Counsel Kathryn Ruemmler in a speech at NYU
Law School on Tuesday. Some of us believe that Cantu’s sentence,
for the “crime” of transporting the produce of an arbitrarily
proscribed plant, was actually 15 years too long, but it is
probably not realistic to expect the president to correct that sort
of injustice.
Still, there is no reason why Obama should be so stingy
with commutations, which he so far has issued at a slower rate than
all but three other modern presidents: George W. Bush (11
commutations in 96 months), George H.W. Bush (three in 48 months),
and Ronald Reagan (13 in 96 months). Obama has now issued 10
commutations in 64 months, which by that measure makes him about 26
percent more merciful than Bush II, 46 percent more merciful than
Bush I, and 14 percent more merciful than Reagan. (Obama still lags
all three on pardons, which clear people’s records, typically after
they have completed their sentences.) But surely a man who has
repeatedly criticized excessively long prison sentences should
aspire to do more than surpass these truly
awful commutation records. Obama is still a long way from
Nixonian levels of mercy, since Tricky Dick shortened 60 sentences
in 67 years—a rate 83 percent higher than Obama’s.
A few months ago, Deputy Attorney General James Cole
indicated that Obama planned to pick up the pace, which was
encouraging. Not so encouraging: Cole, whose department had at that
point received about 9,000 commutation petitions since Obama took
office, asked for help in finding worthy applicants, which
suggested the government’s lawyers are either lazy or extremely
picky. Cantu’s case seems to fit the latter theory. The
New York Times reports
that “a Justice Department official said the case was so clearly
unjust, it moved through the process at unusual speed and was sent
less than a month ago to the White House, where Ms. Ruemmler
recommended that Mr. Obama approve it.”
By the president’s own account, there are thousands of other
clear injustices that he has the power to remedy. He
could start with all of the crack offenders sentenced under
pre-2010 rules that almost everyone now agrees were unreasonably
harsh. The
Smarter Sentencing Act would make the shorter crack sentences
enacted in 2010 retroactive. But if Congress fails to approve that
bill, Obama still has the authority to act on his own, which would
be consistent with the statements he and his underlings have made
regarding our excessively punitive criminal justice system.
“The president believes that one important purpose [of clemency]
can be to help correct the effects of outdated and overly harsh
sentences that Congress and the American people have since
recognized are no longer in the best interests of justice,”
Ruemmler said in her NYU speech. “This effort also reflects the
reality that our overburdened federal prison population includes
many low-level, nonviolent offenders without significant criminal
histories.” Probably more than 10. The president’s pitiful
performance so far falls far short of these aspirations.
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