Obama Is Right on Clemency for Non-Violent Drug Offenders

Conservatives have no good reason to caterwaul this time.


Last week, leading conservatives raised the alarm about yet another terrifying instance of "presidential lawlessness" from President Obama. What is it this time? New revelations of dragnet spying? Targeting more American citizens with flying robot assassins? Nope: He's going to let more nonviolent drug offenders out of prison.

On Wednesday, the Department of Justice announced new criteria for clemency petitions: they'll prioritize applications of "non-violent, low-level offenders" who would have received "a substantially lower sentence" under current law; have served at least 10 years; lack "a significant criminal history"; and "have no history of violence" before or during imprisonment.

"A gross abuse" of power, cries National Review's Andy McCarthy, "making a mockery of his core constitutional duty to execute the laws."

"This is lawlessness," Charles Krauthammer fumed on Fox News. "Why can't the president obey the Constitution?"

About that Constitution: Article II, section 2 gives the president "power to grant Reprieves and Pardons for Offences against the United States."

"The benign prerogative of mercy," the Supreme Court has said, "is unlimited except in cases of impeachment" and "cannot be fettered by any legislative restrictions."

I've never before felt compelled to defend Obama on a sweeping use of executive power, but he's on firm legal ground here—and, as even Krauthammer admits, the president has a point on the merits.

So what's all the conservative caterwauling about? For McCarthy, the clemency initiative represents the execution of Obama's whims: an illegitimate use of the pardon power by an administration that (allegedly) "does not like the federal narcotics laws." Channelling the Constitution's framers, Sen. Jeff Sessions, R-Ala., tells us they'd be appalled by this "alarming abuse of the pardon power," which they only intended "to be used on a limited, case-by-case basis."

But Obama is hardly the first president whose policy preferences have informed his use of the power. Upon taking office, Thomas Jefferson freed political dissenters convicted under the Sedition Act, which he deemed a "nullity as absolute and palpable as if Congress had ordered us to fall down and worship a golden Image." (It seems safe to say he didn't like the law.) Woodrow Wilson, whose veto of the National Prohibition (Volstead) Act was overridden by Congress, issued hundreds of pardons for alcohol-related offenses during his tenure.

It's true that the framers viewed the pardon power as a way to mitigate the criminal law's severity on "a case-by-case basis," lest, as Hamilton put it in Federalist No. 74, "justice …wear a countenance too sanguinary and cruel."

But the constitutional text doesn't limit the power's use to individual cases, and in the same essay, Hamilton argues that blanket pardons could help "restore the tranquility of the commonwealth" in cases of insurrection. That's how our first president used the power several years later, after putting down the Whiskey Rebellion. It is "consistent with the public good," Washington told Congress, "to mingle in the operations of Government every degree of moderation and tenderness which the national justice, dignity, and safety may permit."

Indeed, as law professors Charles Shanor and Marc Miller explain in a 2001 article, "at least a third of all United States presidents [starting with] the earliest administrations, have used systematic pardons," granting clemency to whole classes of offenders, groups as diverse as pirates, Confederate rebels, Mormon bigamists and wartime draft dodgers.

At more than a trillion dollars and incalculable human costs, our four-decade war on drugs has helped give us an incarceration rate that's unrivaled—and unenvied—in the Western world.

As professors Shanor and Miller note: "one of the most common uses of systematic pardons in U.S. history has been to heal the wounds of war at home."

This column originally appeared in the Washington Examiner

NEXT: Department of Education Says Tufts University Sexual Assault Policy Violates Title IX

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. incalculable human costs

    This presumes that anyone who would associate with the drug culture is truly human.

    1. ^?
      Sarc, right?

    2. What? I think you’d have a difficult time finding somebody who hasn’t been associated with it at some point in their life. And they are infinitely more respectable than anyone associated with the Drug War culture.

      1. Born in ’52, teenager in 60’s. Bike gang, Navy. And never did any drugs. Go figure.

        There are a few of us out here.

        1. “Hey, buddy, you haven’t taken the Temperance Pledge! Take it now, or you’re out of the motorcycle gang!”

          1. 1) I don’t need the T.P. I have common sense.

            2) The “gang” was a small group that faded away. Still ride with most of the guys, though.

            3) I just wanted Jordan to know that not everyone has tried drugs. Some people just don’t follow what’s “in” or “cool” or whatever you kids call it now.

            1. I was just being silly. That’s still allowed on the Internet, isn’t it?

              1. Dang! I’m never going to get this “humor” thing.


    3. Have you ever: taken an aspirin, drank a beer, had a cup of coffee to wake up, taken a drag on a cigarette or every been on any kind of psychotropic medication ever?

      If so, you’re a drug user, just like a pot smoker or heroin junkie.

  2. Sure he is but he hasn’t actually done it yet. Moreover, his announced policy is really insulting. He will only consider clemency for “low level non violent offenders who have served more than ten years”. Obama apparently sees no problem with low level non violent drug offenders spending ten or more years in prison and maybe getting out if they are lucky enough to get him to act. Moreover, his policy does nothing to address how DOJ charges these cases or does anything to prevent future people from suffering the same fate.

    Worst of all, the policy does nothing to help people with unfairly long sentences who haven’t served ten years. If you are five years into a 20 year sentence, Obama is telling you to go fuck yourself he isn’t going to shorten it. If you however are 11 years into the same sentence for the same crime, you might benefit from the benevolent hand of the Chocolate Nixon.

    Some clemency is better than no clemency. That fact however doesn’t make Obama himself any less of an appalling and loathsome President.

    1. Of course not–you’re socially invested in his being so. You can’t turn your back now.

      No doubt Obama would sign pretty sweeping criminal justice reform if Congress gave it to him. But you’re not going to pick on Congress are you? It’s only the body with the actual legislative power to do something about this problem.

      1. Tony|4.29.14 @ 12:23PM|#
        …”It’s only the body with the actual legislative power to do something about this problem.”

        Oh, look! Some sleazy sophistry from a slimy turd!
        Yes, Tony, congress is in fact the only legislative body in the US gov’t, so it’s the only one that can exercise legislative power.
        That lying POS Obo, OTOH, can exercise executive power and grant clemency without a single nod to congress.

        1. And if he used it for any purpose you disagreed with you’d call it evil impeachment-worthy tyranny.

          Your entire worldview is currently saturated by Obama derangement syndrome, so there’s no real point in you even giving your opinion, is there?

          1. Tony|4.29.14 @ 12:33PM|#
            “And if he used it for any purpose you disagreed with you’d call it evil impeachment-worthy tyranny.”
            So you admit your sleazy attempt at misdirection? Good. Now we’re getting somewhere.

            “Your entire worldview is currently saturated by Obama derangement syndrome, so there’s no real point in you even giving your opinion, is there?”
            Gee, noticing a lying piece of shit is a lying piece of shit is ‘derangement’ to those who lick his ass.

      2. He could also sign sweeping acts of clemency by simply having his staff draft it up, no Congress needed.

        This is why people laugh at you Tony and consider you a troll. There is nothing Obama could do, no matter how loathsome and indefensible, that you won’t come on here and excuse and blame on the evil Republicans.

        Obama isn’t running for election again and the majority of the country disapproves of his Presidency anyway. Time and time again he has shown a willingness to completely disregard the wishes of his opposition and the country at large. If he wanted to grant real clemency, he would. He only doesn’t because he just doesn’t give a fuck and doesn’t want to do it. He only does this little bit because he thinks black voters might be dumb enough to believe it matters and thus might help with black turnout and and saving his sorry ass from a fully hostile Congress.

        1. I’m not the one whose capacity for reason is being warped by the existence of Barack Obama. Why not give him credit where it’s due? Of course he’s not going to release half the prisoners in the US and of course he’s not going to release people with violent histories. He’s going to take a careful, conservative approach to exercising what is, in fact, a monarchical power, and one you’d be bitching about all the more if he used it for something you don’t like. Of course he’s doing something good with it and you’re still bitching, so there you go.

          1. Tony|4.29.14 @ 12:36PM|#
            “I’m not the one whose capacity for reason is being warped by the existence of Barack Obama.”

            Assertion shown false by evidence.

      3. Don’t forget this part of the criteria as explained by the article: “who would have received “a substantially lower sentence” under current law”

        So he’s going to wait for Congress to implicitly acknowledge that its previous sentencing laws were excessive.

        This gives him some political cover, since he can say “why should a person’s sentence depend on the date on which he committed his crime? You guys in Congress acknowledged that you’d been too harsh, I’m just adjusting earlier sentences in light of your wisdom!”

        But Obama could go further – he has the power and responsibility to reduce excessive sentences even if Congress hasn’t yet gotten around to admitting they’re too high.

        1. “This gives him some political cover, since he can say “why should a person’s sentence depend on the date on which he committed his crime? You guys in Congress acknowledged that you’d been too harsh, I’m just adjusting earlier sentences in light of your wisdom!””

          Tony’s already shifted the blame; took all of about 20 minutes.

    2. Yeah. Tick Tock Tick Tock

  3. “He’s going to let more nonviolent drug offenders out of prison.”
    Uh, not so fast:
    ” they’ll prioritize applications of “non-violent, low-level offenders” who would have received “a substantially lower sentence” under current law; have served at least 10 years; lack “a significant criminal history”; and “have no history of violence” before or during imprisonment.”

    This is the equivalent of Canuck med-care; the line starts right over there, and you’d better bring a cot and pack a lunch.

  4. The Prez looks like a smug tool in that picture. At least he is photographically consistent.

  5. This is the thing about conservatism – I like the “ism,” but I don’t always agree with the “ives,” either.

    I think many of them are still thinking in terms of fighting the criminal justice retardation of the 60s and 70s, though by now we’ve switched the retardation in the opposite direction.

    And the hackery of calling Obama lawless for even proposing to exercise a unilateral power conferred on him by the Constitution! I wonder if these people complained when GW Bush commuted Libby’s sentence, or GHW Bush pardoned some of those Iran-Contra figures.

    To these people, Obama could say, “have a nice day,” and they’d call it lawless.

    1. Yes. The “conservative” drug warriors who are complaining about Obama doing anything can die in a fire as far as I am concerned.

      1. Wow, John, don’t dance around it, say what you *really* feel!

        1. I always say what I think. People always say I am some kind of mindless Team Red cheerleader. Do they just not read the posts I put up where I call the Republicans crap weasels and express all sorts of disdain and ill wishes to various GOP politicians?

          1. It was the, ah, *intensity* of your anger I was commenting on. I know you frequently go against Team Red orthodoxy.

          2. Yes, but you’ll still end up voting for the party of Rick Santorum– no matter who the nominee is.

            Guys like you probably like to get fisted in the ass by your wife and then complain about what a meanie she is to your coworker.

            BTW, you *are* a mindless Team Red cheerleader, with the emphasis on mindless.

  6. The Sedition Acts were affronts to the Constitution (IMO, a challenge to those laws could have given judicial review a much more sound basis than the rather odd case of Marbury v. Madison but… water under the bridge). Jefferson was right morally and legally on sound ground to pardon anybody convicted under those laws (it’s interesting that even in the early days of our Republic, juries still loved throwing people in jail for ridiculous crimes).

    Wilson’s actions were more debatable. The Volstead Act enabled the 18th Amendment so you can’t make the argument those people serving time was illegal. Still, the 18th Amendment was an affront to freedom and Wilson was morally on sound ground to pardon anybody convicted under the Volstead Act.

    Obama’s actions are more like Wilson’s, than Jefferson’s. Our drug laws and minimum sentencing guidelines have never been substantively curtailed — or even questioned — by SCOTUS. Regardless, Obama’s actions are WAY more limited than Wilson’s, who simply disregarded Congress’s (veto-proof) opinion on the matter. A truly courageous act would be to pardon/free anybody convicted of a low-level drug offense (including striking those convictions from otherwise “violent” offenders) if he truly believes those laws are unjust.

    1. Eh, there is no legislative limit to the President’s clemency power. Obama using it in this way is 100% kosher, as far as I’m concerned.

      I more or less agree with John that the limited nature of the clemency contradicts the supposed principles under which this clemency is being granted.

  7. It’s true that the framers viewed the pardon power as a way to mitigate the criminal law’s severity on “a case-by-case basis,”

    Although they probably never imagined that we would lock up millions of people for nothing more than being caught with a little baggie of proscribed substances in their pocket, either.

  8. “Conservatives have no good reason to caterwaul this time.”

    But they will and “libertarians” will lick their asses and make all kinds of excuses as to why they should support the party of abortion and drug prohibition and gay marriage bigotry.

    1. american socialist|4.29.14 @ 7:35PM|#
      “But they will and “libertarians” will lick their asses and make all kinds of excuses as to why they should support the party of abortion and drug prohibition and gay marriage bigotry.”

      American idjit proves once more that reading is a skill lost to socialists.

      1. I don’t know why you are complaining as I agree 100% with the article.

        I think your predictable bitching above is confirmation of what I think about “libertarians” who comment on Reason. Maybe you should write a letter to CATO and demand a self-flogging for Mr. Healy who dareth praise Obama.

  9. Krauthammer’s reputation as an intellectual is totally undeserved. He’s as much of an intellectual as Goering or Himmler was, for similar reasons. He openly abhors enlightenment values, and fails to comprehend the benefits of property rights and individual freedom. And these things are very easy to understand: what social order there is, is predicated on these ideas.

    The use of force is totally and completely appropriate for those who doggedly defend the immoral, looting police state. Fear of the power of poorly-trained (but very numerous) armed police is the only thing that rightfully constrains target-specific retaliation against the police state. This is not because “it is OK to kill social conservatives,” this is because “it is OK to defend yourself from aggression of social conservatives,” whether at the ‘called for the badge and gun’ hierarchical level, the ‘badge and gun’ hierarchical level itself, or the ‘voted for the illegitimate power of the badge and gun’ hierarchical level.” At all levels of implementation, the philosophical onus is the same: it just differs in intelligence.

  10. Do “we” (“enlightened western civilization”) exempt rapists from the laws prohibiting aggression just because they’re less intelligent than high-tech bank robbers? No, we don’t. Because the concept of onus covers social expectations. Civilization, properly defined, determines whether social expectations are valid or not. The Nuremberg principle eliminates claims against onus for acts of aggression. (If you ignored pleas of mercy, you can’t claim that you “didn’t know what you were doing” or “weren’t culpable” or “were just following orders.” Why? Because onus is determined by empathy, and your alternative of inaction. If you could have failed to act and your failure to act would have been moral, then you bear the onus of your positive actions that were immoral.)

    Therefore, America owes its very existence to the fear of the people who are the most compassionate, the most right, the most intellectually honest. (As Ayn Rand noted, the America-hating third world nations of the world cannot be called a serious threat, and are an illegitimate minority who criticize America because it is “too free.”)

    What other nations in history can we think of that once occupied that same philosophical space as “gulag operators” and “murderers”? Nazi Germany, Soviet Russia, Pol Pot’s Cambodia, etc.

  11. The empaths live in fear of the sociopaths. The empaths have too much to live for, to engage in force. The sociopaths do not, and regularly engage in force, making them a fearful beast, but a beast nonetheless.

    The lowest-level of the sociopaths are violent criminals: easily kept in check by private firearm ownership and private security. One prison that held 40,000 people would be enough to house them all, and better security would be enough to deter the ones that weren’t worth housing.

    By far, the greatest threat to human life, safety, and technological progress is the rising U.S. police state, which causes trillions of dollars of lost, stolen, and prevented profit, not to mention the destruction caused by raw aggression.

    If you think it through, strong AGI will be the biggest blessing ever devised by man, leading immediately afterward to something that makes the industrial and computer revolutions seem like the socialist stagnation.

  12. Elected sociopaths are the primary threat to a benevolent singularity arising in western civilization. If a singularity-level intelligence arises outside of western civilization, it will not be trained on an optimal (voluntaryist, market-driven, “classical liberal”) society that has property rights and individual freedom at its core. Worse still, it will likely be “born” or “wake up” on a battlefield.

    This means that the creation of AGI must take place in private industry or in a sheltered and benevolent household environment. Moreover, it must be taught the importance of defense, from observation of reality (in the animal kingdom of “survival of the fittest” in which human-level sociopaths play a dominant role).

    We need to restore strong capitalism and the free market, and let no mind be wasted. We can do this by restoring proper jury trials, making it impossible for the socialist police state to enforce any law. This can be done by waging war against “voir dire” and educating the public about what “voir dire” means.

  13. Please comment below if you know what “voir dire” is, and understand how and why it is so destructive, at a deep level. Those who comment are the subset of libertarians that understand what prevents America from being free (Not everyone can be a skilled rifle owner, or a pro-freedom novelist, but everyone can dummy up and answer voir dire questions as a conformist when called for jury duty. This is the minimum onus of western civilization.). If 40,000 people respond, that’s enough to employ an effort to create a total libertarian state, inside a 60 square mile circle anywhere in the USA.

    My estimates are arbitrary, and multiply-redundant. The real numbers only require about 10 people, but they’d need to be highly-intelligently targeted, Geo-politically.

    I guess that the prior is a pretty good statement about why we shouldn’t accept the abject poison and destruction of the GOP into the libertarian philosophy. We can infiltrate them, but we should never compromise with them, except to hold ground so we can totally defeat them the next go-around. “No quarter with the destroyers of American freedom.”

Please to post comments

Comments are closed.