Republicans Say Obama Has a Crappy Clemency Record—and They Want to Keep It That Way

In a recent electronic survey of federal
prisoners, Liz Goodwin of Yahoo News reports, more
than 18,000 expressed interest in seeking clemency now that
President Obama has
signaled a new openness to such applications. The Clemency
Project, an alliance of federal public defenders, the American
Civil Liberties Union, Families Against Mandatory Minimums, the
American Bar Association, and National Association of Criminal
Defense Lawyers, plans to cull the list, looking for candidates who
meet the administration’s criteria. The Justice Department has said
it will give special attention to “non-violent, low-level
offenders” who have served at least 10 years of a
sentence that probably would have been shorter under current law,
“do not have a significant criminal history,” have
“demonstrated good conduct in prison,” and have no
“significant ties to large-scale criminal organizations, gangs or
cartels.” In April an unnamed “senior administration
official” told
Goodwin the new guidelines could result in commutations for
“hundreds, perhaps thousands” of federal prisoners by the end of
Obama’s current term. That would be a huge change for Obama, whose
clemency
record so far is one of the weakest in U.S. history.

Evidently Republicans would like to keep it that way. Last week
the House of Representatives, by a vote of 214 to
182, approved an
amendment that bars the Justice Department from using taxpayer
money to “transfer or temporarily assign employees to
the Office of the Pardon Attorney for the purpose
of screening clemency applications.” Deputy
Attorney General James Cole has said lawyers from other
divisions of the department will help the chronically understaffed
office—which has thousands of
unresolved clemency petititions in its files even without the
influx expected as a result of the president’s sudden
receptiveness—deliver on the promise of more commutations, which
Republicans
implausibly describe as an unconstitutional end run around
Congress.

Of the 214 legislators who voted to block expansion of the
administration’s capacity to review clemency applications, all but
five were Republicans. Only seven Republicans voted against the
amendment: Reps. Justin Amash (Mich.), Chris Gibson (N.Y.), Raul
Labrador (Ohio), Thomas Massie (W.V.), Pat Meehan (Pa.), Tom Rooney
(Fla.), and Mike Thompson (Calif.). What does the GOP have against
clemency? Nothing, according to the amendment’s sponsor, Rep.
George Holding (R-N.C.), who before the vote implicitly criticized
Obama for his stinginess so far. In the first five
years of this president’s administration,” Holding  said,
“President Obama granted fewer pardons
and commutations than any of his recent
predecessors.” But now that Obama has decided to be more generous,
Holding does not like that either:

The Constitution gives the President the pardon power, but
the fact that the President has finally chosen to
use that power and to use it solely on behalf of
drug offenders shows that this is little more
than a political ploy by the administration to
bypass Congress yet again. This is not as the
Founders intended, an exercise of the power
to provide for exceptions in favor of unfortunate
guilt, but the use of the pardon power to benefit
an entire class of offenders who were
duly convicted in a court of law and [are]
serving a sentence. It is also just the latest
example of executive overreach by this administration.

I may have missed it, but I do not see anything in the
administration’s clemency criteria that limits eligible applicants
to drug offenders. It is just that drug offenders, who account for
half of all federal inmates, are the biggest group of prisoners
with no record of violence. And far from bypassing Congress, the
administration’s criteria focus on prisoners serving sentences that
Congress already has decided are too long. As for what the Founders
intended, Holding’s reference to “unfortunate guilt” alludes to
a passage from the Federalist Papers in which
Alexander Hamilton explains the
need for the pardon power:

[The president] is also to be authorized to grant
“reprieves and pardons for offenses against the United States,
EXCEPT IN CASES OF IMPEACHMENT.” Humanity and good policy conspire
to dictate, that the benign prerogative of pardoning should be as
little as possible fettered or embarrassed. The criminal code of
every country partakes so much of necessary severity, that without
an easy access to exceptions in favor of unfortunate guilt, justice
would wear a countenance too sanguinary and cruel.

Obama is talking about shortening prison terms that are no
longer imposed precisely because the legislative branch deemed them
excessively harsh. The only prisoners serving those terms are the
ones who were unlucky enough to be sentenced before the reforms
took effect. That seems like a pretty good example of what Hamilton
had in mind. In any event, as Hamilton noted, the Constitution
imposes just one limit on the president’s clemency powers: They
cannot be used to save officials (including the president himself)
from impeachment by Congress. It is therefore hard to take
seriously Republicans’ suggestions that Obama’s plans to alleviate
some of the injustice caused by draconian prison sentences is
unconstitutional.