New Clemency Policy Could Free 'Hundreds, Perhaps Thousands' of Drug War Prisoners (and Yes, That Would Be Constitutional)

Senate Judiciary CommitteeSenate Judiciary CommitteeToday Deputy Attorney General James Cole announced new criteria for expedited consideration of clemency applications by President Obama, focusing on prisoners serving sentences longer than the ones currently imposed for similar offenses.  "Older, stringent punishments that are out of line with sentences imposed under today's laws erode people's confidence in our criminal justice system," Cole said. "I am confident that this initiative will go far to promote the most fundamental of American ideals—equal justice under law."

Cole says the Office of the Pardon Attorney, under a newly appointed head, Deborah Leff, and with the assistance of lawyers from other divisions of the Justice Department, will give special attention to "non-violent, low-level offenders" who have served at least 10 years of a sentence that 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." An unnamed "senior administration official" told Yahoo News the new guidelines could result in clemency for "hundreds, perhaps thousands" of federal prisoners by the end of Obama's second term. That would be a dramatic turnaround for a president who so far has commuted just 10 sentences and during his first term racked up one of the stingiest clemency records in U.S. history.

It seems plausible that thousands of federal prisoners could meet Cole's criteria. According to Families Against Mandatory Minimums (FAMM), more than 23,000 federal prisoners have served at least 10 years. Drug offenders, who account for half of federal prisoners, will be the main beneficiaries of the new policy. FAMM estimates, for example, that 8,800 federal prisoners could benefit from retroactive application of shorter crack sentences enacted by Congress in 2010.

How many drug offenders who have served at least 10 years would meet the other criteria? A 2013 calculation by Paul Hofer, a policy analyst with Federal Public and Community Defenders, suggests the number might be in the thousands. Hofer was estimating the potential impact of Attorney General Eric Holder's new charging guidelines for drug cases, which use criteria similar to the ones announced today (including no violence, minimal criminal record, and no significant ties to criminal organizations). Hofer estimated that the charging guidelines, if followed by U.S. attorneys, could help about 500 drug offenders escape mandatory minimum sentences each year, which suggests that thousands of people who meet the new commutation criteria may be serving time now.

Even if the number of prisoners freed under the new policy is only in the hundreds, Obama will look much better than any of his recent predecessors. No president has broken the double digits with commutations since Lyndon Johnson, who issued 226 over 62 months. Since then total commutations have ranged from a low of three under George H.W. Bush to a high of 61 under Bill Clinton (followed closely by Richard Nixon with 60). George W. Bush issued just 11. "The doors of the Office of the Pardon Attorney have been closed to petitioners for too long," says FAMM General Counsel Mary Price. "This announcement signals a truly welcome change; the culture of 'no' that has dominated that office is being transformed." If Obama follows through on his promises to ameliorate some of the appalling injustices committed in the name of the war on drugs, it will be one of his most admirable legacies.

According to PJ Media columnist Andrew McCarthy, it will also be unconstitutional. McCarthy, a former federal prosecutor, argues that Obama's clemency plans usurp the legislative branch's authority to determine appropriate penalties for actions it decides to treat as crimes:

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....

The Obama administration is philosophically opposed to mandatory minimums in the federal penal law, especially in the narcotics area....

President Obama is using the pardon power to rewrite the statute unilaterally. The time drug offenders spend in jail will be based on his subjective notion of fairness, not the policy embodied in our drug statutes. This is not faithful execution of the law, which is the president’s core constitutional duty. It is the execution of Obama’s whims....

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.

McCarthy—who usually takes a broad view of presidential power, especially in the area of national security—perceives limits on the pardon power that appear nowhere in the Constitution. As the Heritage Foundation notes, "The power to pardon is one of the least limited powers granted to the President in the Constitution. The only limits mentioned in the Constitution are that pardons are limited to offenses against the United States (i.e., not civil or state cases), and that they cannot affect an impeachment process."

But let's say McCarthy is right that clemency (which includes "reprieves," a.k.a. commutations, as well as pardons) is properly used only to "correct excesses and injustices." That is precisely what Obama proposes to do. After all, what does it mean to say that Obama "is philosophically opposed to mandatory minimums" if it does not mean that he believes they are unjust? McCarthy may dismiss the basis for that judgment as a "subjective notion of fairness," but any act of clemency aimed at correcting "excesses and injustices" would be open to the same objection.

McCarthy seems to be arguing that using commutations to shorten sentences prescribed by law, which is exactly what commutations are supposed to do, amounts to rewriting the law when it is based on a judgment that the law is unjust. That claim is especially dubious in this case, since Obama is not issuing a blanket commutation for, say, every drug offender serving a mandatory minimum. (If only.) He is instead "mitigating injustice in individual cases," based on criteria that only some people serving mandatory minimums will meet.

Furthermore, those criteria focus on sentences that Congress decided to change because they were unjust—in particular, the crack cocaine sentences that Congress shortened in 2010. McCarthy discusses those changes, which Congress approved almost unanimously, and he seems to agree that the old sentencing rules were unreasonably harsh. But Congress did not make the changes retroactive. So unless Congress corrects that omission, McCarthy says, crack offenders sentenced under the old rules are out of luck, even though pretty much everyone now agrees their prison terms are too long. If Obama commutes some of those sentences, McCarthy claims, he is exceeding an unwritten limit on his powers. To the contrary: It is hard to think of a clearer example of using clemency to "correct excesses and injustices."

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  • Andrew S.||

    While I appreciate this will potentially help people, it's crap. Going to have to have already spent a decade of their lives in prison for something that shouldn't be illegal in the first place, with enough vague carveouts to give wardens and corrections officers a whole shitload of power in deciding who gets released and who doesn't.

  • Root Boy||

    Agree, their lives are pretty ruined and it will be tough for them to put it back together.

    Most of those people are fuck ups anyway, but I'm sure a good percent could have had good lives and it was stupid of the state to pursue them (all of them, even fuck ups deserve to be left alone).

  • Tonio||

    Most of those people are fuck ups anyway...

    Maybe. These were the people that took risks, and sometimes they lost big time.

    I know one guy who did prison time for a WoD charge, then went on to a decent career. He was lucky enough to have family support post-release.

  • Root Boy||

    I'd still put the fuck ups in on drug charges at 60% or more. Most. They will be that way always. I'd still release them from prison.

    Glad you know someone who made good. My brother is almost in the same boat (only jail time, never prison, but is mostly straight now).

  • Root Boy||

    Where douchebag, bleeding heart leftists and redemtion oriented socons can agree -- supposedly.

    Sad to see McCarthy say this is unconstitutional, but he's a drug war douchebag, or law and order hammer thrower. At least he hates Christy.

  • Grand Moff Serious Man||

    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....

    If the Framers of the Constitution intended that they should have made the restrictions more apparent. As it is, the pardon power is pretty broad and cannot be interpreted otherwise.

  • ||

    the pardon power is pretty broad and cannot be interpreted otherwise

    Much like the Doomcock's hardon power is pretty broad and cannot be refused otherwise.

  • Tonio||

    Rewrite? No. Nullify? Yes. This was a foreseeable consequence of the pardon power.

  • Tonio||

    Plus, even without explicit pardon power, and executive can effectively nullify a law by refusing to enforce it, or by making it's enforcement lowest-priority.

  • The Last American Hero||

    Or delaying implementation via executive orders.

  • Scruffy Nerfherder||

    If the President has the power to arbitrarily kill American citizens, the President also has the power to arbitrarily pardon.

  • Swiss Servator, Käse, Käse!||

    Dronepardon.

  • Dances-with-Trolls||

    So for the lulz I went to the HotAir thread on this and read the comments. The consensus there seemed to be that this was all part of a plot (along with immigration reform) to create the Permanent Democrat Majority. Sigh.

  • Root Boy||

    You don't believe their is some of this going on? Holder, Obama and Cole have been in there since the beginning and have talked about these issues for years before they got into power.

    Holder has shown by his Rich pardon shenanigans he only gives a shit about helping Democrat buddies. It may not be about a Dem majority, but it is about increasing turnout in November since they worried about it and face lots of criticism from their side for not doing more progressive stuff (see KXL)

  • Hyperion||

    According to PJ columnist Andrew McCarthy, it will also be unconstitutional

    And throwing people in prison for possessing a plant is constitutional? Where in the constitution does it give the government the authority to tell you what you can or cannot put into your own body?

  • Fist of Etiquette||

    Of course it's constitutional. It's not like it's something you distill and drink. That would require a constitutional amendment.

  • ||

    Ding Ding Ding!

    Winner.

    McCarthy is like Hollandaise sauce. He is either really good, or completely awful. Here he is awful. The pardon power is constitutional, drug laws not so much.

    It seems everyone who is criticizing is because TEAM BLUE! They don't mind sending thousands of real human beings to hell, ruining their lives as long as those people die on TEAM RED's altar of victory.

    I despise TEAM BLUE, but I would be glad to see this even if it benefits them.

  • ||

    Fuckface doing something that isn't horrible? I'll believe it when I see it.

  • Hyperion||

    Let's just put it this way, even if he is doing something that's not horrible, he's doing it for all the wrong reasons, and not doing it of his own motivation to do so.

    And I think I know the main reason. His name is Rand Paul and he's a libertarian Republican. What more needs to be said?

  • John||

    Yup. I will take a good thing for the wrong reasons. It won't change my opinion of the crap weasel. It will however make me happy.

  • JW||

    The thing is, John, is it's designed to do the minimum amount of work to look legitimate. So, what is there to be happy about? That maybe a couple hundred guys get released, but 10s or 100s of thousands more stay locked up and rotting?

    Fuck him. I actually despise this fucker even more now.

  • John||

    Now that I think about it, I agree. The whole thing is a fucking sham.

  • ||

    You are right on the money Hyperion.

    Still, I would like to point out that our system was set up to have bad people do good things. The inverse of the left's idea of having the right people in charge.

    Occasionally it seems to work.

  • JW||

    This is how I imagine the signing will go.

    "Yes, sir, this form will authorize droning the surviv...pardon me...the remaining population in Yemen."

  • Tonio||

    Wartster, as right as you are to be cynical about this, since the administration announced this it will be hard for them to back down from it now.

    And I certainly agree with Andrew S. above that they will probably manipulate the system so as to only release a very small number of prisoners.

    But release will improve the lives of those released, and hopefully open the door for more comprehensive releases.

  • ||

    If he does anything, he'll do the least he can in order to make it look like he's doing the most he can. But it's a big if. What does he care about letting a few hundred thousand people continue to rot in prison? What are they gonna do, vote against him?

  • ||

    Sadly you are probably correct.

  • Tonio||

    But they do have family members who can vote. They also have people sympathetic to their circumstances. And, as always, a handful of crackpots who believe is some musty hundred year-old document.

  • John||

    IF he does this, good for Obama. It should have happened years ago and shame on the previous Presidents who didn't do this and shame on Obama for not doing it earlier.

    If this does happen, I think Libertarians and Rand Paul in particular deserve some of the credit. The Democrats can not afford to lose even 30% of the black vote. I firmly believe that the reason behind this the Democratic terror at the thought that some future Republican President would do it and Democrats would no longer be able to call Republicans racist. Once that became a possibility, and it is only a possibility because Paul would do it and is a serious GOP contender in 2016, the Democrats had to do something or risk no longer being competitive at the national level.

    It goes to show, you don't have to even win an election to change things. I will happily take a good result even if it is for the wrong reasons.

  • BardMetal||

    Wow it just dawned on me how easy it would be for the Republicans to break the Democrat stranglehold on the black vote, and how stupid the Republicans are for not bothering to try it.

    If only the Republicans could unchain themselves from some of the puritans in their own party then maybe this country would slowly start looking like America again.

  • John||

    They are and were unbelievably stupid. A week ago or so there was a thread where I and vaious other people ran the numbers on the last few elections if the Republican Candidate had gotten 30% of the black vote. Give the Republican 30% of the black vote and there would not have been a Democratic President since Johnson.

    The Democrats cannot win at the national level without a complete monopoly on the black vote. They would win it by 40 points 70 to 30 and still not win the general election.

    All the Republicans had to do was let some non violent offenders out of prison. Fucking morons.

  • Dances-with-Trolls||

    This and start pounding the teachers' unions over school choice in every city in the country.

  • John||

    That would require actually talking to black voters rather than just writing them off. Also, doing that would take time away from the important project of apologizing to white liberals and promising to try and be less racist.

  • ||

    I can't help but agree here.

    However, they would have to abandon their old law-and-order and zero tolerance stances, which help keep cops and drug warriors in their camp.

    The Republicans have run on the whole lock-em-up mentality for years.

  • ||

    "....how stupid the Republicans are for not bothering to try it."

    The Republicans...you know, TEAM RED or....uh...what other name are they commonly known as? I forget.

  • Ivan Pike||

    The pardon power exists so that the president can act in individual cases to correct excesses and injustices.

    No

    The End of the Whiskey Rebellion

    In late October 1794, the Federalized militia entered the western counties of Pennsylvania and sought out the whiskey rebels. By mid-November, the militia had arrested 150 rebels, including 20 prominent leaders of the insurrection. Under the President's authority, General Lee issued a general pardon on November 29th for all those who taken part "in the wicked and unhappy tumults and disturbances lately existing"
  • John||

    See also the end of the civil war where the Union pardoned every Confederate Soldier who agreed to surrender and sign a loyalty oath.

    The pardon power is just what it says. The President can pardon as many or as few people as he likes for whatever reason he likes. If the country doesn't like it, that is what we have elections and the impeachment power for.

  • John Thacker||

    Or the commission set up by Gerald Ford for draft evaders, followed by Carter's actions there.

    McCarthy is very dumb here.

  • John||

    Another good example. Really when you think about it, the pardon power was created to be used in mass and to cover entire classes of people. Its real purpose is not to pardon the odd bad guy gone good or idiot son of some crony. Its purpose is to let the President act as sort of a national reconciliation authority when there is a really nasty conflict within society like the civil war or the draft resistance.

    McArthy is a moron on this.

  • ||

    Doesn't go far enough IMO.

    What about all the people serving sentances LESS than 10 years that are longer than what they would be under current law?

    What about all the people serving 20 year sentances that havn't hit the 10 year mark? Why should you spend 10 years in prison if your crime now only gets 3 years?

    Frankly, I don't know what the fuck is wrong with Obama. Who do you think most of the drug offenders in prison are? African Americans!
    And yet, Obama has done so little about tihs massive problem in the African American community.

    For the nations first black president, Obama has done shockingly little to help African Americans, other than increase their welfare benefits.

  • John||

    I will tell you what the fuck is wrong with Obama, there is more to being black in this country than having black skin. Obama is not really in any meaningful way culturally black. He is culturally a white gentry Progressive. White gentry progressives don't give a fuck about black people and are not bothered by our enormous prison population.

  • John Thacker||

    What's wrong with him is that he's not interested in rocking the boat, ever. Not in his entire political career.

  • John||

    But hope change. What about that?

  • The Last American Hero||

    He rocked it pretty good with the ACA and the shameful way that was passed.

  • Zeb||

    I like to call Obama our first half-white president. Even my liberal friends tend to think that's funny.

    Fuck that one drop shit, he's just as white as he is black.

  • ||

    Obama has done shockingly little to help African Americans

    Why would he have done that? Black people with a little bit of money and some reason for optimism might vote Republican every once in a while.

  • ||

    African Americans also consistently for democrats. Doing this doesn't get him any more votes, but it would get the drug warriors riled up. Since he doesn't give a damn about right and wrong, there's no upside from Obama's perspective unless he thinks a republican is likely to do it instead.

  • John||

    Doing this doesn't get him any more votes,

    Yes it does. Just because black vote D when they do vote doesn't mean they will turn out to vote. The Democrats desperately need a big black turnout this fall.

  • Dances-with-Trolls||

    Obama has done shockingly little to help African Americans, other than increase their welfare benefits.

    Not even that if you consider what his economic policies have done to poor peoples' purchasing power.

  • ||

    Obama's first priority is Obama. If you think he gives a fuck about anyone other than himself and his cronies, you're out of your mind. If you think he'd help people just because they had a similar skin color to him (which would be stupidly collectivist), you're out of your mind. The only thing skin color means to Obama is that he can probably get a lot of people to vote for him based on it.

  • John||

    You are just being cynical Episiarch. The fact that the Democrats are going to be toast this fall if there is not some kind of miraculously large black turnout has nothing to do with this. Obama cares. Didn't you know that?

  • JW||

    No, he's not being cynical. Democrats have basically created a caste of welfare dependents, almost wholly made up of inner-city blacks, and they keep voting D with a clockwork consistency.

    I'm actually at a loss to think of a situation where blacks would stop automatically pulling the lever for democrats.

  • JW||

    Oh, and locked up 2 generations worth of young black men on drug charges. And yet, they keep voting for the guy with the D after his name.

    Talk to your average black guy and mention the possibility of voting for a republican. They'll get a good laugh from that.

  • John||

    A Republican President deciding to stop locking them up would change it some. It wouldn't change it all but it would change it enough to give the Democrats a world of hurt.

  • JW||

    I seriously doubt it would change much, at all.

    from my own personal experience, in the black community, Republicans are racist, rich white guys. That's all you need to know and nothing short of a another white Republican pulling a Lincoln will change that.

  • Zeb||

    another white Republican pulling a Lincoln

    Well, it would be pretty easy to free the slaves now. Or do you mean trying to send them back to Africa?

  • ||

    Wouldn't ending the war on drugs or mass pardoning all those in jail on drug charges basically be like pulling a Lincoln?

  • Dances-with-Trolls||

    I'm actually at a loss to think of a situation where blacks would stop automatically pulling the lever for democrats.

    As I mentioned above, School Choice. People get fired up about their kids, no matter what political affiliations they present. It the stupid party came up with a solid, sustained campaign to massively increase the ability of parents to get their kids out of failing schools and into private ones that afford them a chance at a real education, particularly in large cities where the need is the greatest, it could take the the most reliable D voting block and pit it against the most important D funding block.

  • John||

    I used to think that school choice would work. Then I saw the black voters of Washington DC vote out the mayor because he had the nerve to hire an Asian women who actually tried to fix the schools. In Washington DC at least, the black community by a pretty large majority choose making the schools a jobs program over making them give their kids a chance at a decent education.

  • ||

    "Frankly, I don't know what the fuck is wrong with Obama."

    You don't? Perhaps sometime when we have a few hours to kill I will explain.

  • John Thacker||

    It has taken long enough, but I will be happy if this happens. The retiring Pardon Attorney is a scumbag that the Inspector General rightly bashed.

  • JW||

    Cole says the Office of the Pardon Attorney, under a newly appointed head, Deborah Leff, and with the assistance of lawyers from other divisions of the Justice Department, will give special attention to "non-violent, low-level offenders" who have served at least 10 years of a sentence that would have been shorter under current law, "do not have have a significant criminal history," have "demonstrated good conduct in prison," and have no "significant ties to large scale criminal organizations, gangs or cartels."

    That's a whole shitload of 'ifs' for fuckface to hide behind. Color me gobsmacked that he just can't go and do the decent thing and pardon people busted for smoking pot, no matter how many years served. He has to fuck it up with a Venn diagram pardon designed by a committee of Ivy League idiot savants.

    "Sorry, but you showed up late for one kitchen shift and talked to a known drug gang member in the yard, 7 years ago. Pardon denied."

  • ||

    Like I said:

    Warty|4.23.14 @ 2:50PM|#|–|filternamelinkcustom

    If he does anything, he'll do the least he can in order to make it look like he's doing the most he can.
  • John||

    If there are a bunch of "low level offenders" who are being sentenced to more than ten years, isn't that a really big problem?

    When you break down the actual statement, it is fucking nonsense. If any "low level" offenders are doing more than ten years, it is because some scum bag US Attorney convinced a court that they were a high level one. Maybe we should do something about that. And what the hell is so magical about ten years. Does Obama actually think low level non violent offenses warrant ten or more years in federal prison? Apparently so. Be nice if one of the boot licking scum that pass for journalists in this country would ask him about that.

    The more I think about this and look at what they are actually are saying, the more angry it makes me.

  • JW||

    It's purposefully designed to release as few as people possible, but to make it appear like they actually did something reasonable.

    There's John's cynicism.

  • John||

    Yup. That is exactly what it does. But it gives his court media talking points and his low information voters won't know any better.

  • Tonio||

    Barfworthy, meaningless BS from the DOJ webpage linked to in the article: "The common law is the will of mankind issuing from the life of the people." The words I bolded are in a silly font reminiscent of eighteenth century handwriting.

  • ||

    What the fuck is that?

  • ||

    Holy shit.

    And this, what is this shit? "In December 2013, President Obama commuted the sentences of eight individuals who were sentenced under an outdated regime..."

  • sam the man||

    Now if only they do something about the unreasonably expensive fines I have to pay for having less than half a gram of weed and an unused bowl.

  • Bubba Jones||

    Black president and black AG implement policy that disproportionately benefits blacks? Maybe this will appease sotomayor for a week.

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