Last 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.
In fact, according to numbers compiled by P.S. Ruckman Jr., a professor of political science at Rock Valley College in Rockford, Illinois, only three of Obama’s predecessors made less use of the clemency power (taking into account pardons as well as commutations) during their first terms: George Washington, who probably did not have many petitions to address during the first few years of the nation’s existence; William Henry Harrison, who died of pneumonia a month after taking office; and James Garfield, who was shot four months into his presidency and died that September.
Obama's remarkably weak record is especially striking because he has implicitly acknowledged that many federal prisoners are serving unjustifiably long sentences. In 2010 he signed the Fair Sentencing Act, which reduced the senseless disparity in penalties between snorted and smoked cocaine. That law, which Congress approved almost unanimously, represents a consensus that crack offenders sentenced under the old rules got longer prison terms than they deserved. Yet it did not apply retroactively, meaning that thousands of crack offenders are still serving sentences that Congress, the president, and the attorney general admit are unjust. In his ABA speech, Holder cited the Fair Sentencing Act as evidence that Obama "strongly" believes our penal system is too big, too harsh, and too indiscriminate. If so, why hasn't he used his clemency power more than once to shorten crack sentences that virtually everyone now agrees are too long?
More generally, Holder argued that federal prosecution, which usually results in longer sentences, should be reserved for "the most serious offenses" and "the most dangerous criminals." If minor drug offenders nevertheless end up in federal court, he said in a memo to U.S. attorneys, prosecutors should omit any mention of drug weight from the charges against them to avoid triggering mandatory minimums. According to the memo, a defendant is eligible for such forbearance if his offense did not involve the use or threat of violence, he was not "an organizer, leader, manager, or supervisor of others within a criminal organization," he "does not have significant ties to large-scale drug trafficking organizations, gangs, or cartels," and he "does not have a significant criminal history." If these criteria identify people who do not deserve mandatory minimums, they also identify people who deserve the president's mercy.
This article originally appeared at Forbes.