Why no use of pardon power in Obama administration’s war-on-drugs shift?

posted at 12:41 pm on August 16, 2013 by Ed Morrissey

The Obama administration’s efforts to work around mandatory-minimum sentencing in non-violent drug cases through prosecutorial discretion has won Attorney General Eric Holder some plaudits.  But why should that stop with Eric Holder and the Department of Justice?  Jacob Sullum points out that Barack Obama himself can do much more directly through the power of the pardon, but seems unwilling to act:

This week Eric Holder said something that critics of our criminal justice system have been saying for decades but no other U.S. attorney general has managed to say while still in office. “Too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason,” he declared in a speech to the American Bar Association. “Widespread incarceration at the federal, state, and local levels is both ineffective and unsustainable.”

Holder called upon Congress to reform mandatory minimum sentences and outlined steps the Justice Department will take in the meantime to avoid imposing “draconian” penalties on nonviolent, low-level drug offenders. He said his boss, President Barack Obama, shares his concern about mass incarceration and harsh sentences. But Holder neglected to mention that Obama has the power to free people who do not belong in prison—a power he has exercised just once during almost five years in office.

Article 2, Section 2 of the U.S. Constitution gives the president the unilateral, unreviewable authority to “grant reprieves and pardons for offenses against the United States.” So far Obama, who has not otherwise been shy about pushing executive power to the limit (and beyond), has granted 39 pardons, clearing the records of people who completed their sentences years ago, and one commutation, shortening the sentence of Eugenia Jennings, an Illinois woman who was convicted in 2001 of selling 13.9 grams of crack to a police informant. Obama cut her prison term from 22 years to 10, and she was released in December 2011.

That is an amazingly stingy clemency record for a supposedly enlightened and progressive man who before he was elected repeatedly described our justice system as excessively punitive. While running for president in 2008, Obama promised to “review drug sentences to see where we can be smarter on crime and reduce the blind and counterproductive sentencing of nonviolent offenders.” Yet he has granted commutations at a rate that makes Richard Nixon, who declared war on drugs and campaigned as a law-and-order candidate, look like a softie. Nixon granted 60 commutations, 7 percent of the 892 applications he received, during his 67 months in office, while Obama has granted one out of 8,126, or 0.01 percent, over 55 months.

One reason for this, on which Holder could elaborate at length, is the political risk inherent in pardons and commutations.  Holder gave his approval to the Bill Clinton pardon of Marc Rich, the financier who fled the US rather than face charges of fraud, and it blew up in Clinton’s face as he exited the presidency.  Rich’s ex-wife was a big Democratic contributor, and Rich’s attorney Jack Quinn was a friend of Holder’s.  Former Arkansas governor Mike Huckabee received an avalanche of criticism for pardoning a felon who went on to commit murders.

There are plenty of other examples, but those spell out the political risk well enough.  What’s the upside to pardons?  Well, um … writers like Jacob Sullum will occasionally write about your merciful nature if you’re fortunate enough for them to notice, and it will provide some personal satisfaction to exercise mercy.  That’s about it.  Thanks in part to the enduring disgust over rising crime rates in the past that pushed Congress and many states to adopt mandatory-minimum sentencing laws, voters are much more likely to reward toughness rather than mercy.  Politicians will respond accordingly, including Obama.

However, Sullum correctly points out that Obama wants to have it both ways — at least at the moment.  He wants credit for using prosecutorial discretion through Holder’s condemnation of “draconian” sentencing, while ignoring the fact that he had plenty of opportunity over the last 55 months to correct those injustices, if that’s how Obama truly sees those cases.  Now that Obama has won re-election, I would bet that we’ll see an uptick in presidential pardons, but at least so far in Obama’s second term we’re not seeing anything of the sort.


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Obama G. Krebbs: “Oh, man, that’s too much like work… WOrK?@>#!!?”

The Rogue Tomato on August 16, 2013 at 12:45 PM

obama is the USA’s Mugabe.

He won like Mugabe did too, just one year sooner, 2012.

They are both as legitimate too.

Schadenfreude on August 16, 2013 at 12:48 PM

Cuz Obama is a hypocrite?

coldwarrior on August 16, 2013 at 12:49 PM

Welcome to the Zimbabwean USA, a banana republic.

That’s caudillo talk. That’s banana republic stuff. In this country, the president is required to win the consent of Congress first.

Schadenfreude on August 16, 2013 at 12:49 PM

The REB’s presidential pardon quota is 100% reserved for members of his administration.

slickwillie2001 on August 16, 2013 at 12:49 PM

The REB’s presidential pardon quota is 100% reserved for members of his administration.

slickwillie2001 on August 16, 2013 at 12:49 PM

Those are the exact words I was searching for.

antipc on August 16, 2013 at 12:53 PM

The only thing Bark is going to pardon at this time is his golf ball, he pardons them from the deep rough to the middle of the fairway.

Bishop on August 16, 2013 at 12:56 PM

Uh, no.

Prosecutorial discretion is long overdue. If you’re a conservative but cannot reason well enough to see how stupid mandatory minimums are for non-violent offenses you probably own prison stock. The judicial system requires judges to remain happy. That’s why so many crackpots are tolerated.

You ever seen a judge issue a mandatory sentence that everybody in the courtroom knew was too harsh or even cruel? Every time, there is an unmistakable look on his/her face. I’m not an attorney but would love to hear attorneys feedback on that point.

Obaama, first black POTUS, is not going to legalize weed on a federal level or do anything that contributes to the racial scapegoating that would likely ensue following such flagrant liberal-agenda takedowns. It took about 3 years but Obamacare is now cast as a racial wedge. He fears his legacy being stained by the lasting effect of media campaigns like the Birthers orchestrated.

Also, obviously, going to far in the other direction also removes power from judges hands in their own courtrooms. If Obama reduced sentences across the board he would open massive tunnels for defense teams and defendants to drive through and further increase court backlogs. Many court systems are backed up perilously.

By releasing the pressure on prosecutors the entire system gets a breather.

Capitalist Hog on August 16, 2013 at 1:00 PM

Article 2, Section 2 of the U.S. Constitution gives the president the unilateral, unreviewable authority to “grant reprieves and pardons for offenses against the United States.”

The power of Kings.

meci on August 16, 2013 at 1:17 PM

Article 2, Section 2 of the U.S. Constitution gives the president the unilateral, unreviewable authority to “grant reprieves and pardons for offenses against the United States.”

Can this same power to grant reprieves be used to undo the 3 legged stool of the democrat party and Obamacare?

meci on August 16, 2013 at 1:21 PM

Its going to be interesteing,when Hopey leaves office,
and the Pardons he hands out,when that day comes!

canopfor on August 16, 2013 at 1:22 PM

You ever seen a judge issue a mandatory sentence that everybody in the courtroom knew was too harsh or even cruel? Every time, there is an unmistakable look on his/her face. I’m not an attorney but would love to hear attorneys feedback on that point.

What is it that you do that puts you in the courtroom so frequently as to be able to speak authoritatively on what the judge was thinking ‘every time’, what ‘everyone in the courtroom knew’, etc?

Oh wait, that’s right – you’re full of shit. Never mind. Go f*ck yourself, nitwit.

Midas on August 16, 2013 at 1:26 PM

Drugs never kicks down your door in the middle of the night. Drugs never locks up sick and dying people, does not suppress medical research, does not peek in bedroom windows. Even if one takes every allegation of the prohibitionists at face value, Drug prohibition has done far more harm to far more people than drugs ever could.

roflmmfao

donabernathy on August 16, 2013 at 1:27 PM

I guess Gitmo doesn’t count?

DDay on August 16, 2013 at 1:29 PM

Drugs never kicks down your door in the middle of the night. Drugs never locks up sick and dying people, does not suppress medical research, does not peek in bedroom windows. Even if one takes every allegation of the prohibitionists at face value, Drug prohibition has done far more harm to far more people than drugs ever could.

roflmmfao

donabernathy on August 16, 2013 at 1:27 PM

Trying to win the ‘most strawmen I a single post’ award today?

Midas on August 16, 2013 at 1:33 PM

“Obama the Unmerciful”?

.
Add to that the “Øbama the Drone Card Decider” and “Øbama the In Your Face Lecture Bull” and that’s a mighty high bar for any president to follow… are there other titles I’ve missed?

ExpressoBold on August 16, 2013 at 1:40 PM

Your very own Mugabe, er obama.

Schadenfreude on August 16, 2013 at 1:44 PM

C’mon, I know it’s Friday and a slow news day, but really. Ed, why would you mention a “political risk inherent in pardons and commutations”? What blew up in Clinton’s face and did the multi, multi, multi-millionaire and womanizer extraordinaire suffer in any manner? In fact, has any politician really suffered in any manner after pardons and commutations were exercised?

Considering all the ongoing investigations over alleged scandals and Holder’s obvious and blatant perjury, do you honestly think Holder or Obama give a rat’s a## about political risk? Considering the fact that Obama has now resorted to writing legislation of his own on certain issues, do you honestly think Holder or Obama give a rat’s a## about political risk?

I almost get the impression that Hot Air would like to see mass pardons and commutations for drug offenders. But please be more specific if that is what Hot Air is pushing for in the long run. I would almost endorse mass pardons for simple possession and private use within one’s home, but I would never want pardons for any drug offenders who committed crimes while using or selling drugs. These criminals need to finish their sentences.

If Hot Air is endorsing some pardons and commutations in general because Hot Air contributors believe marijuana and other drugs should be legalized, be careful what you wish for.

metroryder on August 16, 2013 at 1:44 PM

“Obama the Unmerciful”?

.
OH! I forgot “Obama the Judgemental” and “Obama the Sullen” and “Obama the One with Thin Skin.”

ExpressoBold on August 16, 2013 at 1:48 PM

Obama is incredibly stingy with the pardon relative to other presidents. Bush the Elder was kind of stingy as well, but he looks like Santa Claus compared to Obama. According to Wiki Bush the Elder issued 77 pardons, the fewest since Garfield who issued none. And that was because he was assassinated early in his term. Obama? 16. 16! Two presidents did not issue pardons, but they don’t really count because of very early exits. Of those who have issued pardons Obama is currently tied for having given out the fewest. We have to go back all the way to Washington to see few pardons given out. Not only that, Obama’s pardons seem to be the most cautious pardons in history.

James Bernard Banks, of Liberty, Utah, sentenced to two years of probation in 1972 for illegal possession of government property.

Russell James Dixon, of Clayton, Ga., sentenced to two years of probation in 1960 for a liquor law violation.

Laurens Dorsey, of Syracuse, N.Y., sentenced in 1998 to five years of probation and $71,000 in restitution for conspiracy to defraud by making false statements to the Food and Drug Administration.

Ronald Lee Foster, of Beaver Falls, Pa., sentenced in 1963 to a year of probation and a $20 fine for mutilating coins.

Timothy James Gallagher, of Navasota, Texas, sentenced in 1982 to three years of probation for cocaine possession and conspiracy to distribute.

Roxane Kay Hettinger, Powder Springs, Ga., sentenced in 1986 to 30 days in jail and three years of probation for conspiracy to distribute cocaine.

Edgar Leopold Kranz Jr., of Minot, N.D., who received 24 months of confinement and a pay reduction for cocaine use, adultery and bouncing checks.

Floretta Leavy, of Rockford, Ill., sentenced in 1984 to 366 days in prison and three years of parole for drug offenses.

Scoey Lathaniel Morris, of Crosby, Texas, sentenced in 1991 to three years of probation and $1,200 restitution for counterfeiting offenses.

NotCoach on August 16, 2013 at 1:49 PM

Everytime I see this any type of smug pic of the evil punk kenyan
I urge to hit the range and blast a hundred rounds.

Texyank on August 16, 2013 at 1:51 PM

How many criminals are sitting in prison on drug charges because of plea deals or because a drug charge was the only crime the prosecutor could get a conviction on.

antipc on August 16, 2013 at 1:58 PM

I wouldn’t expect anyone, who voted present as much as Obama has, to do anything less than circumvent the law. He has no respect for the law. At least, if he used his pardon power, it would be legitimate. Of course he would then have his fingerprints on something and God forbid that should happen.

bflat879 on August 16, 2013 at 2:01 PM

when he and holder find a way to pardon based on race w/o raising peoples ire the prisons will empty.

dmacleo on August 16, 2013 at 2:07 PM

Obaama, first black POTUS

Low-IQ Bleu State Jerked Porky on August 16, 2013 at 1:00 PM

Wasn’t aware O’bama’s mom was black. Do tell!

PS, can I steal your new spelling of his name? I like it!

$100,000

Del Dolemonte on August 16, 2013 at 2:17 PM

(SOCIALIST PIG)-’You ever seen a judge issue a mandatory sentence that everybody in the courtroom knew was too harsh or even cruel? Every time, there is an unmistakable look on his/her face. I’m not an attorney but would love to hear attorneys feedback on that point.’

What is it that you do that puts you in the courtroom so frequently as to be able to speak authoritatively on what the judge was thinking ‘every time’, what ‘everyone in the courtroom knew’, etc?

Oh wait, that’s right – you’re full of shit. Never mind. Go f*ck yourself, nitwit.

Midas on August 16, 2013 at 1:26 PM

Moby-troll is trolling.

ebrown2 on August 16, 2013 at 2:20 PM

bah! Consistency is the hobgoblin of small minds! Don’t question!

Deafdog on August 16, 2013 at 2:26 PM

Listen beyond the long pause.

Very sad and true.

Schadenfreude on August 16, 2013 at 2:32 PM

What is truly amazing is that Mandatory sentences came about to solve the inequity of minorities receiving far longer jail terms than their white suburban and well connected counterparts. People that commit similar crimes should receive similar sentences

Natebo on August 16, 2013 at 6:09 PM

Uh, no.

Prosecutorial discretion is long overdue. If you’re a conservative but cannot reason well enough to see how stupid mandatory minimums are for non-violent offenses you probably own prison stock. The judicial system requires judges to remain happy. That’s why so many crackpots are tolerated.

You ever seen a judge issue a mandatory sentence that everybody in the courtroom knew was too harsh or even cruel? Every time, there is an unmistakable look on his/her face. I’m not an attorney but would love to hear attorneys feedback on that point.

Obaama, first black POTUS, is not going to legalize weed on a federal level or do anything that contributes to the racial scapegoating that would likely ensue following such flagrant liberal-agenda takedowns. It took about 3 years but Obamacare is now cast as a racial wedge. He fears his legacy being stained by the lasting effect of media campaigns like the Birthers orchestrated.

Also, obviously, going to far in the other direction also removes power from judges hands in their own courtrooms. If Obama reduced sentences across the board he would open massive tunnels for defense teams and defendants to drive through and further increase court backlogs. Many court systems are backed up perilously.

By releasing the pressure on prosecutors the entire system gets a breather.

Capitalist Hog on August 16, 2013 at 1:00 PM

The far more likely explanation is Obama’s easily observed reluctance to take responsibility for anything. Pardoning is a power exclusive to the president, which automatically means it can lead to political criticism of Obama himself if the wrong person gets pardoned.

“Prosecutorial discretion,” on the other hand, can be neatly delegated to any number of subordinates. If a vicious criminal “gets away with murder,” because of prosecutorial discretion, Obama can plausibly claim it was not his fault.

And when I say, “gets away with murder,” I mean that in the Joe-Biden-literally sense. IOW, figuratively.

There Goes the Neighborhood on August 16, 2013 at 9:48 PM

Prosecutorial discretion is long overdue. If you’re a conservative but cannot reason well enough to see how stupid mandatory minimums are for non-violent offenses you probably own prison stock.

Capitalist Hog on August 16, 2013 at 1:00 PM

Mandatory minimum sentences didn’t just come out of nowhere, as if some grumpy conservatives decided “those people” needed to be kept down.

They came because too many judges abused their sweeping sentencing powers to coddle too many criminals. Originally, those judges had broad discretion to apply sentences as they saw fit. But too many of them seemed more concerned with “helping” the criminal instead of requiring justice.

Mandatory minimums were just one of several reforms forced on a broken criminal justice system by people who were fed up with watching soaring crime rates and recidivist criminals. Other reforms were victim statements and “three-strike” laws.

And say what you will about these laws, but they are a big part of the reason the crime rate finally started dropping, and has continued to fall.

Hence the irony in seeing people complain about how terrible mandatory minimum sentences are, when their attitude of refusing to punish crime was exactly the reason those laws were passed in the first place.

Now, there is some truth to making a distinction for non-violent crimes. But even non-violent crimes are still crimes. Someone who steals my property is not a better class of criminal just because they did it while I wasn’t looking rather than mugging me first.

But what the whining about “unfair” mandatory minimums misses is that the discretion was removed from judges because of their poor judgement. And laws, by their nature, are blunt instruments. You can’t write all the exceptions and mitigating factors into a law that a judge could apply. But when judges don’t do their job, then they force the legislature to step in and address the problem with more laws.

There Goes the Neighborhood on August 16, 2013 at 10:00 PM

Obama the Criminal!

Holder, the 1st Attorney General to ever be Censured for 3 Felony Counts of Perjury, just told police to LIE and HIDE the amount of drugs confiscated/found during an arrest…

As Obama continues to violate the Constitution by by-passing Congress to circumvent / re-write / ignore existing law…

And our representatives, who swore to protect & defend the Constitution, remain silent, worrying more about their poll numbers and being re-elected than stopping the criminal destruction of our Constitution & nation!

easyt65 on August 17, 2013 at 10:08 AM