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


Senate Judiciary Committee

Today 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."