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Obama Reportedly Planning Clemency For Hundreds Of Drug Offenders

Obama State Of The Union 2013

Yahoo is reporting that President Obama is planning to exercise his pardon power to grant clemency to hundreds, if not thousands, of Federal drug offenders:

Thirty years after skyrocketing urban violence and drug use sparked politicians to impose longer and longer sentences for drug crimes, America now incarcerates a higher rate of its population than any other country in the world. This dubious record has finally provoked a bipartisan backlash against such stiff penalties. The old laws are slowly being repealed.

Now, in his final years in office, Obama has trained his sights on prisoners like Scrivner, and wants to use his previously dormant pardon power as part of a larger strategy to restore fairness to the criminal-justice system. A senior administration official tells Yahoo News the president could grant clemency to “hundreds, perhaps thousands” of people locked up for nonviolent drug crimes by the time he leaves office — a stunning number that hasn’t been seen since Gerald Ford extended amnesty to Vietnam draft dodgers in the 1970s.

The scope of the new clemency initiative is so large that administration officials are preparing a series of personnel and process changes to help them manage the influx of petitions they expect Obama to approve.  Among the changes is reforming the recently censured office within the Justice Department responsible for processing pardon petitions. Yahoo News has learned that the pardon attorney, Ronald Rodgers, who was criticized in a 2012 Internal watchdog report for mishandling a high-profile clemency petition, is likely to step down as part of that overhaul. Additional procedures for handling large numbers of clemency petitions could be announced as soon as this week, a senior administration official said, though it could take longer.

As has been the case with many recent Presidents, Barack Obama has been rather parsimonious with the use of his pardon power. As he neared the end of his second year in office, I noted that he had pardoned more turkeys than people, and at the end of year he finally issued his first pardons of less than a dozen people. As of December 31, 2013, President Obama had pardoned a total of 61 people, an average of 12 pardons per year over the five years he’d been in office. That put him on a pace to issue the fewest pardons and/or grants of clemency of any American President going back to the administration of Franklin Delano Roosevelt. If the Administration actually does go through with this plan, it would more than make up for Obama’s stinginess with the pardon power up until now, and could potentially put up him there with FDR himself, who granted nearly 3,400 pardons or grants of clemency during the 12 years he was in the White House.

While the article doesn’t make clear exactly what criteria the Obama Administration is looking at in making these grants of clemency, it appears that they will be targeted at people who have been convicted of non-violent drug related crimes under Federal Law, which essentially means possession and related charges. Presumably, they will not be granted to people who were arrested with large quantities of marijuana, cocaine, heroin, or other illegal drugs to the point where it was obvious that they were engaged in drug trafficking. These non-violent offenders have been among the worst victims of the Federal Government’s War On Drugs because they have seen their lives ruined thanks to overly zealous law enforcement officers and sentencing guidelines that even Federal Judges complain about. If there is another class of Federal offenders who are more worthy of consideration for a pardon or clemency I’d be hard pressed to find it. As always, the devil will be in the details, and we will have to wait to see what the Administration actually proposes here. So far, though, this sounds like an excellent idea that is long, long overdue.

Of course, not everyone is happy about the reported clemency decisions. Here’s Andrew McCarthy over at PJ Media:

Attorney General Eric Holder announced today that dozens of lawyers will be reassigned to the Justice Department’s pardon office in anticipation of a surge of applications from drug offenders for reductions in their sentences—applications the Obama administration has signaled it would look upon favorably. This exercise is another transparent usurpation of legislative power by the president. The pardon power is just the camouflage for it.

The pardon power exists so that the president can act in individual cases to correct excesses and injustices. It is not supposed to be a vehicle by which presidents rewrite congressional statutes that they disagree with philosophically (just as “prosecutorial discretion,” another doctrine the Obama administration has abused, is not supposed to be a vehicle by which the president substitutes his policies for duly enacted federal law).

The Obama administration is philosophically opposed to mandatory minimums in the federal penal law, especially in the narcotics area. The Justice Department is filled with racialist ideologues and pro-criminal rights ideologues (they tend to be the same people) who have long contended that the drug laws are racist. This is another of those absurd arguments that finds racism based on unintended consequences rather than racist designs.

The mandatory minimums for crack (“cocaine base”) crimes are more severe than for powder cocaine (which was called “cocaine hydrochloride” back when I was a federal prosecutor). Many crack distributors are black and Hispanic, while many powder cocaine distributors are white—although there are plenty of whites in the former category and minority dealers in the latter. Thus, it is contended, the mandatory minimums are racist in effect.

It has been argued for decades that this is unjust. As a matter of racism, this claim is frivolous. As a matter of logic, it is not: crack is rightly punished more severely because it is more addictive and ruinous. For a long time, though, crack was punished at a 100:1 ratio to powder coke (e.g., the 10-year mandatory minimum kicked in at 5,000 grams, or 5 kilos, of powder coke but only 50 grams of crack. It is perfectly constitutional for Congress to do this, but it is not sensible—crack may be worse than powder coke, but not a hundred times worse.

The way our system deals with bad laws is to change them by legislative repeal or amendment, not for the president to decree new laws unilaterally. And, in fact, the drug laws have been changed: Crack is still treated more harshly, but the crack floor for the 10-year minimum was raised (by a factor of more than 5) from 50 to 280 grams. Similarly, for the 5-year mandatory minimum, the ratio is no longer 100:1—while it is still triggered by 500 grams of powder cocaine, it now takes 28 grams of crack, not 5 grams.

To many people, this is still too wide a disparity, but note that the difference is based on the severe addictive tendencies and street-level violence associated with crack, not race. And in any event, if the law is to be changed, our system requires that it be changed by passing laws in Congress.

President Obama is using the pardon power to rewrite the statute unilaterally. The time drug offenders spend in jail will be based on his subjective notion of fairness, not the policy embodied in our drug statutes. This is not faithful execution of the law, which is the president’s core constitutional duty. It is the execution of Obama’s whims.

There is, of course, nothing that limits the Presidential power to grant pardons and clemency to individual cases as McCarthy suggests. Indeed, this is one of the few areas in which the President’s power is unchecked by any branch of government. Once a President issues a pardon or grants clemency, there is absolutely nothing that the Courts or Congress can do about the matter. Granted, there have been plenty of situations in which individual pardon decisions have carried a political cost, which is one of the reasons why the number of pardons that Presidents have issued has dropped steadily since the Nixon Administration. However, that is an entirely different issue from the question of whether or not the President has acted within his authority when granting pardon or clemency requests. In the end, that is an irrelevant question largely because there are no limits on the power at all.

As for the rest of McCarthy’s argument, you can expect that this will be the standard conservative response to this announcement. Rather than recognizing the fact that the President is right about the terrible impact that things like disparate sentencing for crack cocaine and mandatory minimums have had on the lives of real people, they will make the false argument that President is “making an end run” around Congress. In reality, what’s happening here is that the President is authorizing the power that the Constitution has granted him to right a terrible wrong and to bring this issue to the forefront of public attention. Maybe when that happens, the Republicans in Congress will finally act on this issue rather than using it as another weapon in the never ending partisan attacks on the President.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. CB says:

    I’m sure this news will be handled with the weight, nuance, and rationality it deserves.

    Or not. Duck and cover, folks.

    Highly-rated. Helpful or Unhelpful: Thumb up 16 Thumb down 0

  2. C. Clavin says:

    Oooooh….all the talking heads on Fox News are going to esssplode!!!!!
    Well played Mr. Obama, well played.

    Like or Dislike: Thumb up 12 Thumb down 2

  3. C. Clavin says:

    if you are going to start calling out Republicans for their

    false argument(s)

    then I applaud you. But you are going to be a busy, busy, boy!!!

    Like or Dislike: Thumb up 7 Thumb down 1

  4. Tyrell says:

    This certainly has merit for the reason that there are better ways to deal with non-violent crimes. Some concerns are how many are we talking about and what effect it will have of turning millions of people loose if it is that large of a number. What are these people going to do? Jobs are hard to get and I don’t know of any job that doesn’t require a drug test now a days, and that includes dog catchers, clothes line installers, chewing gum removers, and tricycle mechanics. They need to get into some sort of support groups and therapy, especially if they have an addiction. Many churches have excellent programs. The worst thing would be for them to wind up out on the streets.
    Again, non-violent offenses need to have consequences and locking them up with gang members, bank robbers, predophiles, serial killers, kidnappers, car thieves, lunatics, terrorists, and counterfeiters is not a good idea. It would probably make them violent. This will also save the taxpayers some money.
    I may have missed it; I probably did, but does this just affect federal convictions?
    Hopefully New York City has not started locking people up for buying those super size soft drinks.
    “I ain’t seen the sunshine in I don’t know when …and time keeps draggin’ on …I hear that train a comin'” (Cash, “Folsom Prison”)
    s.

    Like or Dislike: Thumb up 1 Thumb down 9

  5. Jim R says:

    How about pardoning every person currently locked up for a non-violent drug crime….I’d call that a decent first step.

    Like or Dislike: Thumb up 7 Thumb down 1

  6. Greg says:

    the Republicans in Congress will finally act on this issue rather than using it as another weapon in the never ending partisan attacks on the President

    Not gonna happen as long as a Democrat holds the office.

    Like or Dislike: Thumb up 3 Thumb down 2

  7. mantis says:

    And, in fact, the drug laws have been changed: Crack is still treated more harshly, but the crack floor for the 10-year minimum was raised (by a factor of more than 5) from 50 to 280 grams. Similarly, for the 5-year mandatory minimum, the ratio is no longer 100:1—while it is still triggered by 500 grams of powder cocaine, it now takes 28 grams of crack, not 5 grams.

    Someone should explain to McCarthy that a lot of people convicted under the draconian laws that have since been changed by the legislature are still rotting in prison, in some cases for longer than violent offenders. Oh wait, he already knows that. He’s just an asshole.

    Highly-rated. Helpful or Unhelpful: Thumb up 26 Thumb down 4

  8. C. Clavin says:

    @Tyrell:
    But every life is precious right?
    You wouldn’t let people just end up on the street…would you?

    Like or Dislike: Thumb up 6 Thumb down 1

  9. OzarkHillbilly says:

    Maybe when that happens, the Republicans in Congress will finally act on this issue rather than using it as another weapon in the never ending partisan attacks on the President.

    BWAAHAHAHAAHAAHAHAHAAHAHAAHAHAHAHAHAHAAHAHAHAHAH…. gasp….. wheeze….. What a card…. Doug? Sometimes you just crack me up.

    TeeehhheheeheeheheheehawhawhahawhawhawHAAHAAHAHAHAHAHAA… AACK URP… SOMEBODY CALL ME A DOCTOR!!!

    Like or Dislike: Thumb up 9 Thumb down 1

  10. Hal_10000 says:

    I expect cries of outrage from the usual quarters but … there has recently been a big surge in Republicans at the state level pushing for criminal justice reform. Texas, of all places, has been leading the charge. I would hate to see this promising move stymied because some asshole have to oppose anything and everything Obama does.

    As for the constitutional issues, Carter pardoned the draft dodgers, Ford pardoned Nixon, Bush pardoned numerous Iran-Contra figures. This has a long precedent. McCarthy is just talking out of his backside.

    Like or Dislike: Thumb up 11 Thumb down 1

  11. bill says:

    good for him, too many slackers in the pen for nickle & dime stuff already. this won’t help his image though, even the nyt is smelling it!

    http://www.huffingtonpost.com/2014/04/20/david-brooks-obama-manhood-problem_n_5182525.html?ir=Media

    it ain’t just in the mid-east either, stop denying it.

    Like or Dislike: Thumb up 1 Thumb down 8

  12. walt moffett says:

    Before breaking out the rolling papers, lets wait and see what exactily happens.

    BTW, in a way, McCarthy is right but wrong. The pardon power is a handy check on the Congress’s power to pass laws to lock people up.

    Like or Dislike: Thumb up 5 Thumb down 0

  13. wr says:

    @bill: Oh, look, Bill is one of the righties obsessed with Obama’s penis. What a shock.

    Like or Dislike: Thumb up 8 Thumb down 1

  14. anjin-san says:

    Right bill, Obama has a manhood problem.

    Just ask Bin Laden. You can find his ass at the bottom of the ocean.

    Like or Dislike: Thumb up 9 Thumb down 1

  15. OzarkHillbilly says:

    @bill: David Brooks wouldn’t know manhood if he looked between his legs. Now I wonder about you.

    Like or Dislike: Thumb up 5 Thumb down 1

  16. OzarkHillbilly says:

    @mantis: Wow, things are just sooooooo much better now. We don’t treat our ni**ers half as bad as we used to. (end of sarcasm)

    Like or Dislike: Thumb up 3 Thumb down 2

  17. Just Me says:

    I think a huge problem is mandatory minimums for crimes period.

    I prefer more discretion in sentencing.

    I don’t see anything wrong with this, but Obama’s pardon team better do their homework and make sure those released don’t have violence in their histories because those opposed to the pardons will use these releases to hit Obama. As long as the only convictions involve small levels of drugs and no guns or violence it’s hard to argue against the pardons.

    Like or Dislike: Thumb up 6 Thumb down 0

  18. bill says:

    @wr: is that a freudian slip? was there a sword fight in the article?
    @OzarkHillbilly: nyt, duh! but when he’s worshiping obama he’s just fine i guess!
    @anjin-san: right, like he was supposed to cancel the hunt?!

    Like or Dislike: Thumb up 1 Thumb down 5

  19. As a matter of logic, it is not: crack is rightly punished more severely because it is more addictive and ruinous.

    Right, it makes total sense to punish people who traffic the precursor drug, cocaine, less than people who use cocaine to make crack.

    Joe Sixpack, who traffics 5 kilograms of cocaine from Miami to New York City every week, should receive the same punishment as the guy who use a portion of that cocaine to make 50 grams of crack every week? In what word does that make sense?

    Like or Dislike: Thumb up 5 Thumb down 0

  20. stonetools says:

    So a Pajamas Mediia pundit takes an anti Obama position that is evil and hypocritical. Must be a day that ends in y.
    I’m in 100 per cent agreement with Doug here.I do think the best solution would be sentencing reform legislation. The fact is though that the Republicans in Congress have no intention of doing anything but denying Obama success on any legislative proposal whatsover. For MrCarthy not to admit this means that either he is stupid, wilfully blind , or insane.
    In the absence of any possibility of legislative action, Obama is doing the right and decent thing by using his broad power to pardon to provide relief from what no one now doubts are terribly unjust sentences.The alternative is that the victims of these sentencing laws just keep serving their unjust sentences. McCarthy, of course, expreses no sympathy whatsover for these victims, nor advances any other possibility of relief.The guy is just a conservative aszhole- but I repeat myself…

    Like or Dislike: Thumb up 7 Thumb down 0

  21. Rafer Janders says:

    @Timothy Watson:

    Joe Sixpack, who traffics 5 kilograms of cocaine from Miami to New York City every week,

    Joe Sixpack? Should’t that have been Joe Blow…?

    Like or Dislike: Thumb up 12 Thumb down 0

  22. Franklin says:

    McCarthy’s argument is stupid on the face of it. “It is not supposed to be a vehicle by which presidents rewrite congressional statutes that they disagree with philosophically.” Show me again where he’s rewriting statutes? Sorry, but *every* pardon nullifies some congressional statute in the given case, but that doesn’t mean the statute has been rewritten.

    Like or Dislike: Thumb up 6 Thumb down 0

  23. anjin-san says:

    @ bill

    right, like he was supposed to cancel the hunt?!

    You are thinking about Bush now.

    https://www.youtube.com/watch?v=4PGmnz5Ow-o

    Like or Dislike: Thumb up 3 Thumb down 1

  24. James in Silverdale, WA says:

    The more releases the better. Send a message to Prison, Inc. that the glory days will soon be ending as far as weed is concerned.

    Like or Dislike: Thumb up 5 Thumb down 0

  25. anjin-san says:

    Send a message to Prison, Inc. that the glory days will soon be ending as far as weed is concerned

    Amen.

    The purpose of pot laws is not the well being of American citizens, it is to create criminalized bodies to feed the justice/prison machine. A lot of money is being made off of this.

    Like or Dislike: Thumb up 5 Thumb down 0

  26. Just Me says:

    I don’t really think the motivation here for republicans is to deny Obama something.

    I think a lot of republicans are very law and order, anti crime and they like mandatory sentencing.

    There is also a coming conflict between drug legalization, criminalization and decriminalization.

    It’s staring with pot right now but the debate will move to harder drugs.

    Like or Dislike: Thumb up 0 Thumb down 0

  27. anjin-san says:

    I think a lot of republicans are very law and order, anti crime

    You know what? A lot of Democrats are pro law and order, and anti-crime.

    The difference is, we are against stupid laws that harm society more than the “crime” does.

    WTF is it the government’s business if a citizen in “the land of the free” wants to grow and or use a relatively benign substance like pot?

    The pot laws are simply a continuation of Prohibition, a policy that failed disastrously 80 odd years ago. Period.

    Like or Dislike: Thumb up 4 Thumb down 0

  28. Al Rex says:

    Why only pardons for drug offenders? Why not for those with minor federal offenses like writing a bum check in interstate commerce or catching the wrong fish in Alaska (federally protected species) or underpaying of a few dollars federal taxes?
    Well, President Jimmy Carter granted unconditional pardons to thousands of Vietnam draft dodgers so President Obama could do the same but not only for drug dealers.

    Like or Dislike: Thumb up 0 Thumb down 0