If Obama Were Serious About Judicial Reform This Is What He’d Do

The Constitution gives him power to bring justice to a broken system. It’s called clemency.

National Journal
May 5, 2015, 5:50 a.m.

President Obama is trying to help Americans understand why their cities are erupting in protests and violence. With eloquence and empathy, he speaks of grievances over race and a toxic stew of social failure: bad policies, bad politics, bad policing, and bad parenting. “We as a country have to do some soul-searching,” Obama said in the aftermath of rioting in Baltimore. “If our society really wanted to solve the problem, we could.”

Which is why I can’t figure out why he hasn’t done his part. For all of the causes and solutions outside a president’s control, Obama has virtually ignored his singular power to send a message that judicial reform is now a priority in Washington: executive clemency.

On granting pardons and commuting sentences, Obama may be the stingiest president in U.S. history. His record is inexcusable, as illustrated by this USA Today story last week:

Under the Constitution, the president “shall have Power to grant Reprieves and Pardons for Offences against the United States.” And for much of the nation’s history, presidents have used that power frequently in order to forgive past crimes, restore civil rights, show mercy, and correct injustices.

But that power has withered over the last 40 years. President Nixon pardoned 51 percent of applications received, according to statistics compiled by political scientist P.S. Ruckman Jr.

For Bush, the rate was 7.6 percent. And for Obama, it’s half of that.

USA Today reporter Gregory Korte revealed a 2010 memo in which the White House said Obama would “very rarely, if ever” grant pardons for major offenses and gun crimes.

After privately approving a policy that virtually ensured he would not be asked to grant clemency for serious crimes, particularly drug sentences that disproportionately punished minorities, Obama claimed to be surprised by the outcome. “I noticed that what I was getting was mostly small-time crimes from very long ago,” Obama said.

How could he be surprised? The 2010 White House memo might as well have been titled, “Pardoning Only Small-Time Crimes from Very Long Ago.”

“It’s a memo that comes out 18 months after you take the oath and that essentially tweaks a prior memo form a prior administration that no one thinks was doing a great job in this respect,” Douglas Berman, a law professor at Ohio State University and leading clemency advocate, told Korte. “And then it takes you four more years to figure out that you’re not getting the cases you want to get? Well, you’re not really looking.”

Obama’s solution was to create more levels of bureaucracy. What he called a “revamping” of the clemency system has only managed to shorten the sentences of 22 federal narcotics prisoners in March. That’s a step in the right direction—a baby step.

The issue is freighted with politics—and the landscape is rapidly shifting in ways that could damage not only Obama’s legacy but the presidential prospects of his former secretary of State, Hillary Rodham Clinton.

Responding to (and stoking) voters’ fears, a generation of politicians have engaged in what political columnist Carl M. Cannon called “an orgy of incarceration” that included mandatory minimum sentences for drug crimes. In 1992, Bill Clinton campaigned for president promising to “put more police on the street and more criminals behind bars.” Incumbent George H.W. Bush pledged to double spending on federal-prison construction.

In 2010, Congress finally addressed a crack/powder-cocaine disparity that unfairly weighted sentences against minorities, but it didn’t make the law retroactive. Thousands of inmates are still locked away for decades under the old law.

It’s wrong. So wrong that a bipartisan consensus is forming around judicial reform. For instance, Republican Sen. Mike Lee of Utah and Republican presidential candidate Rand Paul of Kentucky are seeking limits on mandatory-minimum sentences. Paul teamed up with Democratic Sen. Cory Booker of New Jersey to produce a criminal-justice-reform package they say would cut government spending and make it easier for nonviolent criminals to get jobs.

Hillary Clinton promised to “end the era of mass incarceration” if elected president, but she has not said what laws she would seek to change or how she would fix the clemency process. She also must address forthrightly the fact that her husband’s policies enabled “the era of mass incarceration.”

As for Obama, a president has no formal role in the congressional process, and this president has proved himself to be inept at the informal nuances of power. But the Constitution couldn’t be clearer: He could give mercy to hundreds, even thousands, of American prisoners. He could send a signal to the streets of Baltimore, Ferguson, and beyond that the federal government hears their calls for justice and peace.

He could consider a proposal by my friend Mark Osler, a former federal prosecutor who is now a judicial-reform advocate. First, remove the clemency process from the Justice Department—which has an inherent conflict of interest—and put it in the hands of a small independent agency.

Second, appoint a bipartisan commission with expertise in criminal law to review and track data on recidivism and related issues. President Gerald Ford created a temporary board in 1974 to quickly process about 21,000 Vietnam-era draft-evasion and deserter cases.

What better way to declare an end to the failed policies of the so-called war on drugs?

He could work with Congress to get something like this done. Or he could act alone: There is nothing stopping the president from ordering his legion of lawyers to put hundreds of petitions on his desk each month.

All it takes to bring some justice is a stroke of his pen.

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