On Matter of Mercy, Obama Can’t Blame GOP for Gridlock

The president can act unilaterally today to bring long-awaited justice to drug offenders.

Mark Osler
Ron Fournier
Add to Briefcase
Ron Fournier
Dec. 8, 2015, 9:50 p.m.

Whenev­er Pres­id­ent Obama or his al­lies com­plain about GOP obstacles to his lib­er­al agenda, I think of the ra­cial dis­par­it­ies in pris­on sen­tences for drug of­fend­ers. Obama has ab­so­lute and un­dis­puted power to par­don or com­mute the sen­tences of people jailed un­der sen­tences that the Su­preme Court and Con­gress later deemed to be ex­cess­ive.

But he’s done little to help.

The sys­tem Obama es­tab­lished to fix a broken sys­tem is broken, a bur­eau­crat­ic clog of re­dund­an­cies, in­tern­al polit­ics, and talk­ing points. After read­ing Sari Hor­witz’s story on the clem­ency pro­cess in The Wash­ing­ton Post on Sunday, I emailed my old friend Mark Osler, a former fed­er­al pro­sec­utor who holds the Robert and Mari­on Short Dis­tin­guished Chair in Law at the Uni­versity of St. Thomas in Min­neapol­is. His writ­ings on nar­cot­ics and sen­ten­cing have ap­peared in The New York Times and The Wash­ing­ton Post, and in law re­views at Har­vard, Stan­ford, the Uni­versity of Chica­go, North­west­ern, and Rut­gers. In 2009, he won the case of Spears v. United States in the U.S. Su­preme Court, in which the Court held that a 100:1 ra­tio between crack co­caine and powder co­caine in the U.S. Sen­ten­cing Guidelines could be cat­egor­ic­ally re­jec­ted by sen­ten­cing judges.

Our lightly ed­ited email ex­change:

FOURNI­ER: OK. Let’s get the per­son­al dis­clos­ure out of the way. Have we ever met be­fore?

OSLER: Yup—we met back when we were scrawny run­ners, stu­dent journ­al­ists, and friends in high school. I like to pre­tend we look pretty much the same now. 

FOURNI­ER: We do. But that’s off the re­cord. So tell me why a former fed­er­al pro­sec­utor from De­troit cares so pas­sion­ately about clem­ency for con­victed drug deal­ers and users. Why should any­body care about them?

OSLER: I’m still a pro­sec­utor at heart. Some people are dan­ger­ous, and need to be locked up. But when I was pro­sec­ut­ing young black men for selling crack, I real­ized it did not make any dif­fer­ence. We were sweep­ing up low-wage labor, people who would be re­placed the next day by someone else selling crack. Their sen­tences were out of line, too. Low-level, non-vi­ol­ent drug deal­ers were get­ting longer sen­tences than bank rob­bers and those who com­mit­ted ma­jor frauds. We have changed the laws, but many of those people are still in pris­on even though they would be out if they had been sen­tenced un­der our cur­rent laws, sen­ten­cing guidelines, and policies. Keep­ing them in pris­on is a fail­ure of justice and mercy at the same time. It wastes money, tears up lives, and solves no prob­lem. As justice is­sues go, this should be an easy one, a lay­up. 

FOURNI­ER: Then why the air balls? Tell me what you want Pres­id­ent Obama to do and why you think he hasn’t got­ten it done. 

OSLER: It’s the same reas­on that GM can’t fix an ig­ni­tion switch that kills people: too much bur­eau­cracy and not enough ac­count­ab­il­ity (we De­troit guys can’t stay away from car ana­lo­gies). He sees the prob­lem. He knows the broad scope of the par­don power, too, since he taught con­sti­tu­tion­al law for all those years at the Uni­versity of Chica­go. He just re­fuses to fix a broken sys­tem, something he could do with the stroke of a pen on an ex­ec­ut­ive or­der.

FOURNI­ER: Why? Why does he re­fuse to do what he says is the right thing?

OSLER:  My sus­pi­cion—and it is only that—is that he de­fers to old heads at the De­part­ment of Justice who are loath to give up any power. That’s not a good reas­on, es­pe­cially when voices on the Right and Left (even a white pa­per from the Her­it­age Found­a­tion) re­cog­nize the con­flict in­her­ent in giv­ing the DOJ an ef­fect­ive veto over a power meant by the Framers to be wiel­ded by the pres­id­ent as a tool of bal­ance against le­gis­lat­ive and pro­sec­utori­al over­reach.

FOURNI­ER: OK. Let’s say you’re ad­vising him. What does he do today with the stroke of a pen to fix the sys­tem?

OSLER: Right now there are four dif­fer­ent of­fi­cials and their staffs ana­lyz­ing each of these thou­sands of pe­ti­tions: the par­don at­tor­ney, the deputy at­tor­ney gen­er­al, the White House coun­sel, and the pres­id­ent. Phys­ic­al files are lit­er­ally shuttled between four dif­fer­ent fed­er­al build­ings. The deputy at­tor­ney gen­er­al has a ton of oth­er things to do, and works in a build­ing full of pro­sec­utors. That step should be cut out. Bring the par­don at­tor­ney over to the of­fice with the White House coun­sel, and have pe­ti­tions go dir­ectly to them. That way, a file goes to just two build­ings, the cases get prop­er vet­ting, and there is ef­fi­ciency. The Wash­ing­ton Post last Sunday had former Deputy At­tor­ney Gen­er­al James Cole de­scribe how he schlepped clem­ency files home on Sat­urday—the only time he had to con­sider them un­in­ter­rup­ted. That is the prob­lem in a single im­age. The fix needs no ap­pro­pri­ation, just polit­ic­al will and a pen. We know that Pres­id­ent Obama has the pen, at least.  

FOURNI­ER: Give me a sense of scope. How many over-sen­tenced people have been awar­ded clem­ency by the pres­id­ent? How many are in the pipeline? How many are people are reas­on­able, ob­vi­ous can­did­ates for clem­ency (and why)? 

OSLER: Ac­cord­ing to the par­don at­tor­ney, 18,698 com­mut­a­tion pe­ti­tions have been re­ceived since Pres­id­ent Obama took of­fice, and 9,980 have been denied or closed. That means there are over 8,000 pe­ti­tions pending. Over his en­tire nearly-sev­en years in of­fice, the pres­id­ent has com­muted only 89 sen­tences. Not all of those 8,000+ pe­ti­tions are strong, but if even a frac­tion are worth­while, the pres­id­ent has an aw­ful lot of work to do with a strik­ingly in­ef­fi­cient sys­tem. The most ob­vi­ous can­did­ates of all are those who were sen­tenced for crack un­der the old laws that are now changed. Their cases lie in the shad­ow of damning ra­cial dis­par­it­ies, failed policies, and deep tragedy, and prob­ably con­sti­tute at least sev­er­al hun­dred of the re­main­ing pe­ti­tion­ers.

FOURNI­ER: Tell me about Ron­ald Blount. I read about him in the fi­nal few para­graphs of this bra­cing Wash­ing­ton Post story and I sus­pect he’s a re­flec­tion of a broken sys­tem that the pres­id­ent has the power to fix.

OSLER: Ron­ald is a re­formed crack ad­dict. He has served 16 years of a life sen­tence for a low-level role in someone else’s crack ring. He was so poor, so ad­dicted, that he was liv­ing on his moth­er’s porch and beg­ging for change in a park at the time he was con­victed. This is the king­pin we have to in­ca­pa­cit­ate at a cost of over a mil­lion dol­lars? Keep­ing him in pris­on is im­mor­al, wrong, and tra­gic. In that art­icle, Eric Hold­er re­spon­ded to my plea for ur­gency by say­ing that Pres­id­ent Obama is “talk­ing” about this is­sue a lot. It’s true. He was talk­ing a lot about it while Ron­ald Blount sat in a cell. That is a stark con­trast to Pres­id­ent Kennedy and his broth­er Robert, who used clem­ency to quietly free hun­dreds of drug de­fend­ants serving harsh terms.

FOURNI­ER: I don’t think you doubt the pres­id­ent’s sin­cer­ity to act but I’ve got to ask: Is he a hy­po­crite or feck­less? Or is there an­oth­er op­tion?

OSLER: In the end, he might be either, both, or neither. There is one year left. If he chooses to noodle along with only a few hun­dred grants, it will be quickly for­got­ten, ex­cept by the thou­sands who were giv­en false hope. If he finds cour­age to be the boss of the DOJ and cre­ates an ef­fi­cient sys­tem that frees thou­sands, he will have ful­filled a prom­ise to the over-in­car­cer­ated and also would re­vive the par­don power as a prin­cipled tool of the pres­id­ent. He well knows the max­im of Micah 6:8 (be­cause he really is a Chris­ti­an): That we are to do justice and love mercy and walk humbly with our God. Justice and mercy are out of bal­ance. He can fix that.

FOURNI­ER: What did I fail to ask? What would you like to add?

OSLER: My col­lab­or­at­or in cre­at­ing the Clem­ency Re­source Cen­ter, [New York Uni­versity] law pro­fess­or Rachel Barkow, says that the dis­astrous clem­ency policies of the last three pres­id­ents have cre­ated a “gap­ing black hole of justice.” She’s right. This ad­min­is­tra­tion’s ef­forts to pass le­gis­la­tion and re­form char­ging policies are right and ad­mir­able, but lim­ited by the re­luct­ance of oth­er act­ors. Con­gress is a mess, and pro­sec­utors are re­cal­cit­rant, but clem­ency is a sharp knife in the pres­id­ent’s hand that can cut the ropes bind­ing up people like Ron­ald Blount. Use it.

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