Unpardonable Power

The President of the United States of America has a lot of cool powers. Some are set forth in the Constitution. Others come from the bowels of the Office of Legal Counsel in the Department of Justice, where they decide that torture and drone strikes to kill Americans are legal. In another room at DoJ, one that I picture as windowless and austere, sits the Pardon Attorney.

While the Justice Department lawyers are busy explaining why torture and drone strikes are okay, the pardon attorney is busy playing spider solitaire on his computer. He doesn’t have much to do. The President is a busy guy, and while his attention is focused on drone strikes, he has precious little time for such politically unpalatable things as pardons.

Walter Olson explains:

In the same news cycle Russian President Vladimir Putin said he would free more than 20,000 inmates from his country’s prisons, President Barack Obama announced a rather less grand gesture of clemency. He commuted the sentences of eight people convicted of crack-cocaine offenses — all of whom have served at least 15 years — and used his pardon power to erase the criminal records of 13 miscellaneous ex-offenders.

Obviously, Putin hasn’t got nearly as much to do as President Obama. How else to explain why Putin can free 20,000 to Obama’s eight?  But it’s not like Obama has to do it all himself. No doubt Putin has people to handle such things as mercy and proportionality for him, and Obama has that pardon attorney. Surely he can carry some of the water.

That office has functioned less as a neutral referee than as a goalie that hardly ever lets a shot through. Since 2008, the office has been headed by a former drug prosecutor and military judge who was sharply criticized in an inspector general’s report last winter for inaccurately relaying the circumstances of Aaron’s case, reducing his chances for clemency.

Ouch. Nothing much to do, and still he screws up.  Not good.  The New York Times similarly lays bear the disgraceful neglect of presidential duties.

It is important to recognize that while Mr. Obama showed mercy to these eight people, his administration has been the least merciful in modern times. The power to mitigate an overly harsh sentence is squarely in his hands, and yet in nearly five years he has commuted just nine sentences and issued 52 pardons. (A commutation lessens the severity of a punishment, while a pardon forgives the offense itself and restores the rights people lose when they go to prison.)

But it’s not just the fact that President Obama has neglected a power given him by the Constitution, but done so at this point in history.

There is now fairly widespread agreement that federal drug laws are far too harsh and inflexible, and that their burden falls most heavily upon the poor and racial minorities. Given so many cases of injustice, why was Mr. Obama able to identify only a handful of people worthy of clemency? Part of the fault lies with the pardon office, which has been ineffective in doing its job in processing clemency requests. Last week’s commutations were the result of a request Mr. Obama made a year ago to have the Justice Department review pending clemency petitions. Clemency, however, is not the solution to all of the irrationality and harshness of America’s sentencing laws.

After generations of increasingly harsh sentences and policies sold in re-election campaigns to prove how “tough on crime” each candidate for office could be, it’s finally beginning to filter through to the American consciousness that life in prison without parole for jaywalking probably isn’t necessary to keep us safe at night.

Even so, there is much to suggest that the larger motivation toward ending the harshness spiral is money, not mercy.  The public and politician have finally come to realize that the cost of Incarceration Nation is huge, and it will eventually have to be paid.  As easy as it is for people to scream that every criminal deserves life plus cancer, they have come to the epiphany that they don’t really want to pay for it.

So will eight pardons do the trick?

According to the Washington Post, one of the administration’s motives was, oddly, its wish to help “eliminate overcrowding in federal prisons.”

If that’s the case, Obama is trying to bail out Lake Michigan with a paint can. The federal prison population has increased by more than 700 percent since 1980 and the number of inmates now exceeds the Bureau of Prisons bed capacity by 35 percent to 40 percent, requiring the use of contract prisons, halfway houses and other makeshifts.

I think Wally has overestimated the impact. It’s not bailing out Lake Michigan with a paint can, but a thimble.  But this is the nation we asked for.

Mr. Obama did not create the broken criminal justice system, but he can do much more to lessen its impact on those who have been most unfairly punished by it.

He can. He has the power. But it’s not nearly as much fun as playing the drones.




3 comments on “Unpardonable Power

  1. Pingback: President Obama and the pardon power - Overlawyered

  2. Lurker

    I agree with you that president Obama, as his predecessor Bush the Younger, have used the pardon power too little.

    However, I disagree with you on the principle. Pardon power is to be used a lot, but it should be used relatively randomly, on the personal whim of the pardoner. It is about mercy, not about justice. No one deserves a pardon. (With the exception of obvious miscarriages of justice.) Instead, the pardon should be granted just because the president feels like it, without any rational reason.

    On the other hand, the pardon should not be used to override legislation. Pardoning or commuting a specific class of people would override the legislature’s will. So, the crack sentence disparity problem should be solved with a public law, not by a wide-scale pardon. (I think that even in Russia, Putin’s pardon law is actually an Act of Duma, not a presidential ukazy, although I may be mistaken.)

    1. SHG Post author

      Excellent point. While I’m not certain mercy and using the pardon power in conflict with a law is necessarily inconsistent, the distinction you draw between mercy and “justice” (assuming it’s defined as adherence to duly enacted law) is an important one.

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