The Volokh Conspiracy

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The President doesn't need Congress's help to fix unjust sentences


Attorney General Holder has an op-ed elsewhere in the Washington Post calling for various Congressional action on criminal justice reform because "there is a limit to what the Justice Department can accomplish on its own."

Such as? Well first on the list is this:

First, although Obama signed the Fair Sentencing Act to eliminate a discriminatory 100-to-1 sentencing disparity between crack and powder cocaine, thousands of individuals who committed crimes before 2010 are still serving sentences based on the old ratio. This is unfair. Congress should pass legislation to apply that statute retroactively so that no one is sitting in prison serving a sentence that Congress, the president and the attorney general have all declared unjust.

I find this extraordinarily puzzling. The Constitution gives the President "Power to grant Reprieves and Pardons for Offences against the United States." If the President indeed shares the Attorney General's views, he can eliminate the thousands of unfair sentences at a few strokes of a pen.

And indeed, the President has announced a substantial clemency effort along these lines, although it is not nearly as categorical as the one that Holder calls for.

The only explanations I can guess are: (1) That Attorney General Holder is calling for something broader than the President actually wants. This seems unlikely, since Holder explicitly invokes the President's views and presumably the President would still have to sign the bill Holder wants Congress to pass. Or (2) the President is unwilling to exercise his constitutional pardon power because he wants political cover if somebody who is pardoned later goes on to do something wrong. The latter explanation seems more likely to me, but I don't think it's a very good justification.

In any event, the solution to this problem lies in the President's own hands.