For all of the justified concern over abuse of executive authority by Barack Obama, especially as it relates to ObamaCare, this administration has proven as reluctant as its closest predecessors in using one truly unilateral power: clemency. In five-plus years, Obama has only issued 61 clemency actions — 52 pardons and 9 commutations — while denying over 8,000 petitions. His one-per-month rate comes to half the pace of George W. Bush, and far below the scale of the two 20th-century Presidents who flexed their muscles the most on clemency actions, FDR (3,687 in eleven-plus years) and LBJ (1,186 in sixty-two months, where Obama is at now).
Just last week, Reason’s Jacob Sullum noted that Obama still hadn’t reached Nixonian levels of mercy, at least on commutations:
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 awfulcommutation 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.
Sullum may get his wish. Yahoo’s Liz Goodwin reported yesterday that the White House plans a major revamp of their clemency process, focusing on non-violent drug offenders with inordinately harsh federal sentences for either pardons or commutations. She focuses on the case of Barbara Scrivner, serving a 30-year sentence for participating in a meth ring run by her then-husband, as an example:
Thousands and thousands of people like Scrivner are serving punishingly long sentences in federal prison based on draconian policies that were a relic of the “tough on crime” antidrug laws of the ’80s and ’90s. Thirty years after skyrocketing urban violence and drug use sparked politicians to impose longer and longer sentences for drug crimes, America now incarcerates a higher rate of its population than any other country in the world. This dubious record has finally provoked a bipartisan backlash against such stiff penalties. The old laws are slowly being repealed.
Now, in his final years in office, Obama has trained his sights on prisoners like Scrivner, and wants to use his previously dormant pardon power as part of a larger strategy to restore fairness to the criminal-justice system. A senior administration official tells Yahoo News the president could grant clemency to “hundreds, perhaps thousands” of people locked up for nonviolent drug crimes by the time he leaves office …
The scope of the new clemency initiative is so large that administration officials are preparing a series of personnel and process changes to help them manage the influx of petitions they expect Obama to approve. Among the changes is reforming the recently censured office within the Justice Department responsible for processing pardon petitions. Yahoo News has learned that the pardon attorney, Ronald Rodgers, who was criticized in a 2012 Internal watchdog report for mishandling a high-profile clemency petition, is likely to step down as part of that overhaul. Additional procedures for handling large numbers of clemency petitions could be announced as soon as this week, a senior administration official said, though it could take longer.
In my column for The Week, I argue that this is long overdue, and that politics have interfered with a necessary mechanism for correcting injustices in sentencing and excessive prosecution:
This is long overdue. Congress passed mandatory-minimum sentencing over justified dissatisfaction with the judiciary for being too lenient. The problem, though, is that even the good intentions of these laws lead to obvious cases of injustice. Goodwin highlights one such case, that of Barbara Scrivner, who got 30 years without parole for taking part in a meth ring. Despite playing a minor role — her husband masterminded the ring — the judge had no choice but to hand down the 30-year sentence. That specific mandatory-minimum requirement has since been repealed, and prosecutors tell Goodwin that Scrivner probably wouldn’t have gotten a 20-year sentence today — which is how long she’s already served.
The near-absolute power of the pardon was meant for cases like Scrivner, and others trapped by excessive prosecution or sentencing. People who commit serious crimes should expect serious consequences, but justice requires that the punishment fit the crime. No system of justice is perfect, of course. When the judicial process fails to deliver a just outcome, governors and presidents should exercise their authority to correct the excesses, while employing a competent screening process to assure that cases of true injustice receive clemency, rather than those that are mere favors for those with political connections.
Not everyone agrees, however. Our friend Andy McCarthy, a former federal prosecutor, believes that the reported scope of the effort amounts to an end run around Congress:
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 (just as “prosecutorial discretion,” another doctrine the Obama administration has abused, is not supposed to be a vehicle by which the president substitutes his policies for duly enacted federal law).
The Obama administration is philosophically opposed to mandatory minimums in the federal penal law, especially in the narcotics area. The Justice Department is filled with racialist ideologues and pro-criminal rights ideologues (they tend to be the same people) who have long contended that the drug laws are racist. This is another of those absurd arguments that finds racism based on unintended consequences rather than racist designs. …
Moreover, we should be under no illusion: 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.
Obviously, I disagree, although McCarthy makes good points too. The power of pardons or commutations also exist to correct oversentencing in cases where sentencing requirements were irrationally applied. Scrivner got 30 years despite not being convicted of a violent crime, which she must serve in full before release. Violent criminals get far less, and in Scrivner’s case the judge not only lamented the mandatory sentence, prosecutors today wouldn’t be able to get it — because Congress did repeal the mandatory sentence for the crime for which she got convicted. Did that punishment fit the crime?
For those of us concerned about excessive government power, especially in terms of oversentencing and overprosecution, the executive power of clemency provides a check on those abuses — and one that carries substantial political accountability to boot. As Doug Mataconis also notes, that accountability is why the practice has declined dramatically since LBJ:
There is, of course, nothing that limits the Presidential power to grant pardons and clemency to individual cases as McCarthy suggests. Indeed, this is one of the few areas in which the President’s power is unchecked by any branch of government. Once a President issues a pardon or grants clemency, there is absolutely nothing that the Courts or Congress can do about the matter. Granted, there have been plenty of situations in which individual pardon decisions have carried a political cost, which is one of the reasons why the number of pardons that Presidents have issued has dropped steadily since the Nixon Administration. However, that is an entirely different issue from the question of whether or not the President has acted within his authority when granting pardon or clemency requests. In the end, that is an irrelevant question largely because there are no limits on the power at all.
As for the rest of McCarthy’s argument, you can expect that this will be the standard conservative response to this announcement. Rather than recognizing the fact that the President is right about the terrible impact that things like disparate sentencing for crack cocaine and mandatory minimums have had on the lives of real people, they will make the false argument that President is “making an end run” around Congress. In reality, what’s happening here is that the President is authorizing the power that the Constitution has granted him to right a terrible wrong and to bring this issue to the forefront of public attention. Maybe when that happens, the Republicans in Congress will finally act on this issue rather than using it as another weapon in the never ending partisan attacks on the President.
The power of Congress mainly relates to checks on power going forward. To rectify injustices of the past — to the extent they exist — the executive branch not only has the authority to act but the duty to do so as well.