How a Poster Boy for Commutation Falls Through the Cracks

In my October Reason cover story about Barack Obama's drug policies, I noted Clarence Aaron as an example of drug offenders whose sentences the president should commute if he really believes what he used to say about excessively long prison terms. Aaron, now 43, was arrested when he was a student at Southern University in Baton Rouge for connecting a cocaine supplier who was the brother of a classmate to a dealer he knew from high school. Although it was his first offense and he never made, transported, bought, or sold any drugs, he was sentenced to three consecutive life terms. A new investigative article by ProPublica's Dafna Linzer, based on interviews and internal documents, suggests that Aaron, who has been a model prisoner for more than 18 years, probably would be a free man today if the Justice Department's pardon attorney, Ronald Rodgers, had not misrepresented important aspects of his petition.

During the final year of George W. Bush's second term, Linzer reports, "lawyers began searching through denial recommendations for promising cases and found Aaron." The White House asked the Office of the Pardon Attorney to take another look. At this point several new aspects of the case weighed in Aaron's favor, including favorable prison reports and a new affidavit in which he expressed remorse for his role in the cocaine deal. Most crucially, both the judge who sentenced him, Charles Butler Jr., and the U.S. attorney for the district in which was tried, Deborah J. Rhodes, now supported commuting Aaron's sentence. Butler said Aaron "should be granted relief immediately," while Rhodes recommended that he be released in 2014. Yet Rodgers simply resubmitted his office's 2004 denial recommendation. In an email message to Associate White House Counsel Kenneth Lee, Rodgers said only that Butler was not opposed to a commutation and claimed that Rhodes, while supporting commutation "at some point," believed Aaron's petition was "about 10 years premature." Linzer relates Lee's reaction upon hearing what Butler and Rhodes actually had said:

Kenneth Lee, the lawyer who shepherded Aaron's case on behalf of the White House, was aghast when ProPublica provided him with original statements from the judge and prosecutor to compare with Rodgers's summary. Had he read the statements at the time, Lee said, he would have urged Bush to commute Aaron's sentence.

"This case was such a close call," Lee said. "We had been asking the pardons office to reconsider it all year. We made clear we were interested in this case."

Both Rogers and the Justice Department declined Linzer's requests to comment on the case. Linzer, who previously has shown that black offenders such as Aaron are much less likely to receive pardons (which clear the records of people who have completed their sentences) than whites, presents the case as another example of dysfunction in the Office of the Pardon Attorney, on which Bush and Obama both have depended to review clemency petitions and recommend responses. Citing "a former pardon office lawyer," she suggests the office has responded to commutation petition backlogs, which are largely a product of increasingly draconian prison sentences, with cursory reviews and mass denial recommendations. In other words, at the very time when presidential mercy is most needed, it is less likely to be shown, and there is little rhyme or reason to which applicants are lucky enough to receive it.

But a president who relies on overwhelmed or lackadaisical underlings to make his clemency decisions for him can hardly blame them for his failure to use this power as a remedy for obvious injustices like Clarence Aaron's three life sentences for a nonviolent first offense. Gregory Craig, Obama's former counsel, recommends that petitions instead be reviewed by a bipartisan panel outside the Justice Department, a change Obama could make whenever he wants. While Bush's commutation record was pitiful (or maybe that should be "pitiless"), Obama's so far is worse, as Linzer notes:

Obama has rejected nearly 3,800 commutation requests from prisoners. He has approved one. Bush commuted the sentences of 11 people, turning down nearly 7,500 applicants [over two terms]….

Under Ronald Reagan and Bill Clinton, both two-term presidents, one applicant in 100 was successful. Under Bush, approvals fell to barely better than one in 1,000. So far, Obama has commuted the sentences of fewer than one in 5,000. The only person freed by Obama had support from one of the president's closest congressional allies, Illinois Democratic Sen. Dick Durbin. 

That applicant, Eugenia Jennings, was surely deserving, but so are Clarence Aaron and many, many others. Obama's reluctance to commute sentences is especially shameful in light of his repeated objections to senselessly harsh drug penalties.

Gary Johnson, the Libertarian candidate for president, has said he would "pardon nonviolent drug offenders." Ron Paul, the last remaining challenger to Mitt Romney for the Republican nomination, has made a similar commitment.

More on the pardon power here.