Yesterday, as Lauren Galik noted, President Obama granted 46 commutations, three more than he issued in the first 2,364 days of his administration combined. His new total, 89, exceeds that of every president since Lyndon Johnson, who shortened 226 sentences during his 62 months in office. That's quite an improvement for a president who issued just one commutation during his first term and was in danger of being remembered as one of America's least merciful presidents.
All the prisoners whose sentences were commuted yesterday are nonviolent drug offenders, 14 of whom nevertheless received life sentences. In two cases marijuana was the only drug involved; those prisoners received sentences of 20 years and 22 years, respectively, for cultivation and distribution. Seven cases involved cocaine powder, with sentences ranging from 20 years to life. One case, where the defendant received a 20-year sentence, involved methamphetamine as well as cocaine. Two involved unspecified "controlled substances." But the vast majority of the prisoners—34 out of 46, three-quarters of the total—committed offenses involving crack cocaine, as did most of the prisoners who received commutations from Obama prior to yesterday. That makes sense, because Congress shortened crack sentences in 2010 but did not make the changes retroactive. The upshot is that thousands of crack offenders are continuing to serve sentences that nearly everyone now agrees are too long.
Commutation candidates who received penalties more severe than they would get under current law are supposed to receive special consideration under Justice Department guidelines announced last year, provided they are "non-violent, low-level offenders" who have served at least 10 years, "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." As I said last week, those additional criteria seem superfluous to me. If someone got 10 years in prison for an offense that would be punishable by a substantially shorter sentence today, it hardly makes sense that he has to complete his term before he is eligible for commutation. Assuming the point is to correct punishments that do not fit the crime, which is how Obama put it yesterday, anyone serving a term that is now considered excessive should be eligible.
"While I expect the President will issue additional commutations and pardons before the end of his term," White House Counsel Neil Eggleston said yesterday, "it is important to recognize that clemency alone will not fix decades of overly punitive sentencing policies." Similarly, White House spokesman Josh Earnest said Obama will use "executive authority to try to correct as many injustices as possible," but he also wants Congress to "enact the kind of reforms that the president can't by acting on his own." In the video announcing yesterday's commutations, Obama noted bipartisan support for sentencing reform, and he is expected to expand on that subject in a speech to the NAACP today and during a visit to a federal prison in Oklahoma on Thursday.
Possible vehicles for reform include the Smarter Sentencing Act, which was introduced in the Senate and the House last February. The bill would make the shorter crack sentences enacted in 2010 retroactive, cut mandatory minimums for various drug offenses in half, eliminate the mandatory life sentence for a third drug offense, and expand the "safety valve" for low-level, nonviolent offenders.
The SAFE Justice Act, which was introduced last month in the House, also would expand the safety valve and allow crack offenders sentenced under the old rules to seek shorter terms. In addition, it would eliminate federal penalties for simple possession of drugs in jurisdictions subject to state law, reserve mandatory minimum sentences for high-level drug traffickers, clarify that gun-related mandatory minimums can run consecutively only "when the offender is a true recidivist," give judges more discretion in sentencing people based on their responses to "reverse stings," encourage more use of diversion and probation, and offer prisoners time reductions in exchange for their participation in job training and other programs aimed at reducing recidivism.
Obama and his underlings are certainly right that sentencing reform, which could help thousands of current prisoners as well as future defendants, is preferable to clemency. But they underestimate the potential impact of commutations, which so far has been limited mainly by the administration's initial lethargy, its unnecessarily restrictive criteria, and its insistence on detailed, case-by-case evaluation. A general policy of freeing people whose sentences are plainly unjust—in particular, people who have already served as much time as they would get under current law—could help thousands of prisoners. That option will be especially attractive if Congress fails to pass significant sentencing reforms.