In a recent electronic survey of federal prisoners, Liz Goodwin of Yahoo News reports, more than 18,000 expressed interest in seeking clemency now that President Obama has signaled a new openness to such applications. The Clemency Project, an alliance of federal public defenders, the American Civil Liberties Union, Families Against Mandatory Minimums, the American Bar Association, and the National Association of Criminal Defense Lawyers, plans to cull the list, looking for candidates who meet the administration's criteria. The Justice Department has said it will give special attention to "non-violent, low-level offenders" who have served at least 10 years of a sentence that probably 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." In April an unnamed "senior administration official" told Goodwin the new guidelines could result in commutations for "hundreds, perhaps thousands" of federal prisoners by the end of Obama's current term. That would be a huge change for Obama, whose clemency record so far is one of the weakest in U.S. history.
Evidently Republicans would like to keep it that way. Last week the House of Representatives, by a vote of 214 to 182, approved an amendment that would bar the Justice Department from using taxpayer money to "transfer or temporarily assign employees to the Office of the Pardon Attorney for the purpose of screening clemency applications." Deputy Attorney General James Cole has said lawyers from other divisions of the department will help the chronically understaffed office—which has thousands of unresolved clemency petititions in its files even without the influx expected as a result of the president's sudden receptiveness—deliver on the promise of more commutations, which Republicans implausibly describe as an unconstitutional end run around Congress.
Of the 214 legislators who voted to block expansion of the administration's capacity to review clemency applications, all but five were Republicans. Only seven Republicans voted against the amendment: Reps. Justin Amash (Mich.), Chris Gibson (N.Y.), Raul Labrador (Ohio), Thomas Massie (W.V.), Pat Meehan (Pa.), Tom Rooney (Fla.), and Mike Thompson (Calif.). What does the GOP have against clemency? Nothing, according to the amendment's sponsor, Rep. George Holding (R-N.C.), who before the vote implicitly criticized Obama for his stinginess so far. In the first five years of this president's administration," Holding said, "President Obama granted fewer pardons and commutations than any of his recent predecessors." But now that Obama has decided to be more generous, Holding does not like that either:
The Constitution gives the President the pardon power, but the fact that the President has finally chosen to use that power and to use it solely on behalf of drug offenders shows that this is little more than a political ploy by the administration to bypass Congress yet again. This is not as the Founders intended, an exercise of the power to provide for exceptions in favor of unfortunate guilt, but the use of the pardon power to benefit an entire class of offenders who were duly convicted in a court of law and [are] serving a sentence. It is also just the latest example of executive overreach by this administration.
I may have missed it, but I do not see anything in the administration's clemency criteria that limits eligible applicants to drug offenders. It is just that drug offenders, who account for half of all federal inmates, are the biggest group of prisoners with no record of violence. And far from bypassing Congress, the administration's criteria focus on prisoners serving sentences that Congress already has decided are too long. As for what the Founders intended, Holding's reference to "unfortunate guilt" alludes to a passage from the Federalist Papers in which Alexander Hamilton explains the need for the pardon power:
[The president] is also to be authorized to grant "reprieves and pardons for offenses against the United States, EXCEPT IN CASES OF IMPEACHMENT." Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.
Obama is talking about shortening prison terms that are no longer imposed precisely because the legislative branch deemed them excessively harsh. The only prisoners serving those terms are the ones who were unlucky enough to be sentenced before the reforms took effect. That seems like a pretty good example of what Hamilton had in mind. In any event, as Hamilton noted, the Constitution imposes just one limit on the president's clemency powers: They cannot be used to save officials (including the president himself) from impeachment by Congress. It is therefore hard to take seriously Republican arguments that Obama's plan to alleviate some of the injustices caused by draconian prison sentences is unconstitutional.
[Thanks to Brandon Payne for the roll call link.]