Today Deputy Attorney General James Cole announced
new criteria for expedited consideration of clemency applications
by President Obama, focusing on prisoners serving sentences longer
than the ones currently imposed for similar offenses. “Older,
stringent punishments that are out of line with sentences imposed
under today’s laws erode people’s confidence in our criminal
justice system,” Cole said. “I am confident that this initiative
will go far to promote the most fundamental of American
ideals—equal justice under law.”
Cole says the Office of the Pardon Attorney, under a newly
appointed head, Deborah Leff, and with the assistance of lawyers
from other divisions of the Justice Department, will give
special attention to “non-violent, low-level
offenders” who have served at least 10 years of a
sentence that would have been shorter under current law, “do not
have have a significant criminal history,” have
“demonstrated good conduct in prison,”
and have no “significant ties to large scale
criminal organizations, gangs or cartels.” An unnamed “senior
administration official”
told Yahoo News the new guidelines could result in clemency for
“hundreds, perhaps thousands” of federal prisoners by the end of
Obama’s second term. That would be a dramatic turnaround for a
president who so far has
commuted just 10 sentences and during his first term racked up
one of the stingiest clemency
records in U.S. history.
It seems plausible that thousands of federal prisoners
could meet Cole’s criteria. According to Families Against Mandatory
Minimums (FAMM), more than 23,000 federal prisoners are serving
sentences longer than 10 years. Drug offenders, who account for
half of federal prisoners, will be the main beneficiaries of the
new policy. FAMM estimates, for example, that
8,800 federal prisoners could benefit from retroactive application
of shorter crack sentences enacted by Congress in 2010.
How many drug offenders serving more than 10 years would
meet the other criteria? A 2013
calculation by Paul Hofer, a policy analyst with Federal Public
and Community Defenders, suggests the number might be in the
thousands. Hofer was estimating the potential impact
of Attorney General Eric Holder’s new charging
guidelines for drug cases, which use criteria similar to the ones
announced today (including no violence, minimal criminal record,
and no significant ties to criminal
organizations). Hofer estimated
that the charging guidelines, if followed by U.S. attorneys,
could help about 500 drug offenders escape mandatory minimum
sentences each year, which suggests that thousands of people who
meet the new commutation criteria may be serving time
now.
Even if the number of prisoners freed under the new policy
is only in the hundreds, Obama will look much better
than any of his recent predecessors. No president has broken the
double digits with commutations since Lyndon Johnson, who issued
226 over 62 months. Since then total commutations have ranged from
a low of three under George H.W. Bush to a high of 61 under Bill
Clinton (followed closely by Richard Nixon with 60). If Obama
follows through on his promises to ameliorate some of the appalling
injustices committed in the name of the war on drugs, it will be
one of his most admirable legacies.
According to PJ columnist Andrew McCarthy, it will also be
unconstitutional. McCarthy, a former federal prosecutor,
argues that Obama’s clemency plans usurp the legislative
branch’s authority to determine appropriate penalties for actions
it decides to treat as crimes:
The pardon power exists so that the president can act in
individual cases to correct excesses and injustices. It is not
supposed to be a vehicle by which presidents rewrite congressional
statutes that they disagree with philosophically….The Obama administration is philosophically opposed to
mandatory minimums in the federal penal law, especially in the
narcotics area….President Obama is using the pardon power to rewrite the
statute unilaterally. The time drug offenders spend in jail will be
based on his subjective notion of fairness, not the policy embodied
in our drug statutes. This is not faithful execution of the law,
which is the president’s core constitutional duty. It is the
execution of Obama’s whims….This is not an exercise in mitigating injustice in
individual cases. This is an abuse of political power to rewrite
the federal drug laws because, as a matter of ideology, Obama does
not agree with stern sentences for drug offenders.
McCarthy—who usually takes a broad view of presidential
power, especially in the area of national security—perceives limits
on the pardon power that appear nowhere in the Constitution. As the
Heritage Foundation
notes, “The power to pardon is one of the least limited powers
granted to the President in the Constitution. The only limits
mentioned in the Constitution are that pardons are limited to
offenses against the United States (i.e., not civil or state
cases), and that they cannot affect an impeachment
process.”
But let’s say McCarthy is right to say that clemency
(which includes “reprieves,” a.k.a. commutations, as well as
pardons) is properly used only to “correct excesses and
injustices.” That is precisely what Obama proposes to do. After
all, what does it mean to say that Obama “is philosophically
opposed to mandatory minimums” if it does not mean that he believes
they are unjust? McCarthy may dismiss the basis for that judgment
as a “subjective notion of fairness,” but any act of clemency aimed
at correcting “excesses and injustices” would be open to the same
objection.
McCarthy seems to be arguing that using commutations to
shorten sentences prescribed by law, which is exactly what
commutations are supposed to do, amounts to rewriting the law when
it is based on a judgment that the law is unjust. That claim is
especially dubious in this case, since Obama is not issuing a
blanket commutation for, say, every drug offender serving a
mandatory minimum. (If only.) He is instead “mitigating injustice
in individual cases,” based on criteria that only some people
serving mandatory minimums will meet.
Furthermore, those criteria focus on sentences that
Congress decided to change because they were unjust—in
particular, the crack cocaine sentences that Congress shortened in
2010. McCarthy discusses those changes, which Congress approved
almost unanimously, and he seems to agree that the old sentencing
rules were unreasonably harsh. But Congress did not make the
changes retroactive. So unless Congress
corrects that omission, McCarthy says, crack offenders
sentenced under the old rules are out of luck, even though pretty
much everyone now agrees their prison terms are excessively long.
If Obama commutes some of those sentences, McCarthy claims, he is
exceeding an unwritten limit on his powers. To the contrary: It is
hard to think of a clearer example of using clemency to “correct
excesses and injustices.”
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