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April 21, 2014

Helping President Obama use his constitutional clemency powers

In our last few classes, I want to wrap up our discussions of modern federal drug sentencing by turning attention to the work of the most powerful of sentencing "whos": the President of the United States.  There are lots of ways the President can and does make sentencing decisions, but the most historic means is through the exercise of his (constitutionally enshrined) power to grant clemency.  

There are lots of stories to discuss and debate relating to the President's clemency power and its use throughout American history, but I will want us to focus on how it might still be used (and/or should be used) by President Obama as he heads into his final few years in office.  This new Reason.com piece by Jacob Sullum provides some useful background and context for our discussions:

President Obama made appropriate use of his clemency powers this week, shortening the prison term of a drug offender who received a sentence that everyone agreed was too long but for which there was no other legal remedy. In 2006 Ceasar Huerta Cantu was sentenced to 17.5 years in federal prison after he pleaded guilty to conspiracy and money laundering charges related to shipping marijuana from Mexico to Virginia. That term was three-and-a-half years longer than it should have been under federal sentencing guidelines because of a mistake in Cantu's presentence report, which erroneously listed his "base offense level" as 36 instead of 34. Cantu's lawyer never noticed the mistake, which Cantu himself discovered in 2012 after his family mailed him a copy of the report. By then he had missed the deadline for asking the courts to shorten his sentence....

"It's hard to imagine that someone in the federal criminal justice system could serve an extra three-plus years in prison because of a typographical error," said White House Counsel Kathryn Ruemmler in a speech at NYU Law School on Tuesday....

Obama should [not] be so stingy with commutations, which he so far has issued at a slower rate than all but three other modern presidents: George W. Bush (11 commutations in 96 months), George H.W. Bush (three in 48 months), and Ronald Reagan (13 in 96 months). Obama has now issued 10 commutations in 64 months, which by that measure makes him about 26 percent more merciful than Bush II, 46 percent more merciful than Bush I, and 14 percent more merciful than Reagan. (Obama still lags all three on pardons, which clear people's records, typically after they have completed their sentences.) But surely a man who has repeatedly criticized excessively long prison sentences should aspire to do more than surpass these truly awful commutation records. Obama is still a long way from Nixonian levels of mercy, since Tricky Dick shortened 60 sentences...

A few months ago, Deputy Attorney General James Cole indicated that Obama planned to pick up the pace, which was encouraging. Not so encouraging: Cole, whose department had at that point received about 9,000 commutation petitions since Obama took office, asked for help in finding worthy applicants, which suggested the government's lawyers are either lazy or extremely picky. Cantu's case seems to fit the latter theory....

By the president's own account, there are thousands of other clear injustices that he has the power to remedy. He could start with all of the crack offenders sentenced under pre-2010 rules that almost everyone now agrees were unreasonably harsh. The Smarter Sentencing Act would make the shorter crack sentences enacted in 2010 retroactive. But if Congress fails to approve that bill, Obama still has the authority to act on his own, which would be consistent with the statements he and his underlings have made regarding our excessively punitive criminal justice system.

"The president believes that one important purpose [of clemency] can be to help correct the effects of outdated and overly harsh sentences that Congress and the American people have since recognized are no longer in the best interests of justice," Ruemmler said in her NYU speech. "This effort also reflects the reality that our overburdened federal prison population includes many low-level, nonviolent offenders without significant criminal histories." Probably more than 10. The president's pitiful performance so far falls far short of these aspirations.

UPDATE: This brand new post at my main blog provides more explanation for how timely our discussion on clemency now is as a result this notable new and lengthy Yahoo News article headlined "Obama plans clemency for hundreds of drug offenders: Barbara Scrivner's long quest for mercy tests a president's will — and her own faith."  I highly recommend reading the full Yahoo piece.

April 21, 2014 in Clemency, Who decides | Permalink


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IT would seem to me that Obama not waiting for the passage of The Smarter Sentencing Act would fall in line with his overly-politicized policy of side-stepping Congress. I would question, however, the prudence of a large-scale clemency if his true desire is to bring to light those prisoner's who, in his opinion, have received unduly harsh prison sentences. It seems to me that while he would certainly put the issue in the national spotlight, he would rob the issue of the potential of a bi-partisan groundswell of support. Rather, it would polarize the issue potentially stalling it far beyond the reach of his presidency.

Posted by: Joe Gallagher | Apr 21, 2014 10:35:45 PM

I'm concerned about this Cantu situation. This New York Times article (that quotes Berman!) explains a bit more about a judge's role in Cantu's sentence: http://www.nytimes.com/2014/04/16/us/politics/obama-commutes-a-sentence-lengthened-by-a-typing-error.html?_r=0.

After Cantu noticed the clerical error giving rise to his 3.5-years-too-long sentence, he filed a pro se motion for sentencing reconsideration. The federal prosecutor opposed his motion. In March, 2013, Judge Kiser admitted that Cantu's sentence was improper due to a typo. Judge Kiser nonetheless denied the motion.

So before President Obama ever heard Cantu's dilemma, a federal prosecutor and a federal judge took affirmative steps to ensure the incorrect sentence stood in place. How are the judge and prosecutor not getting more grief for their actions?

Posted by: Kris Missall | Apr 21, 2014 10:47:36 PM

Once again, I feel that the clemency issue brings up the question of individual versus equal justice. Obama's limited use of his clemency power seems to focus on individual justice as opposed to equal justice. In my opinion, it is appropriate for the president to use his clemency power sparingly and to generally grant deference to the judicial and legislative branches, where deferences is due. This article, on the other hand, seems to call for a more expansive use of the clemency power that looks more like an attempt at equal justice. ("...our overburdened federal prison population includes many low-level, nonviolent offenders..."; "...there are thousands of other clear injustices that he has the power to remedy.")

However, to me, relying on the President's clemency power to eliminate injustices seems like putting a Band-aid on a much deeper problem. Allowing the President to act as a remedy for injustice is not the same as examining and working on the causes of the injustices themselves -- I worry that, by encouraging the President to use commutations to promote equal justice, we're really saying that it's okay for the criminal justice system to remain "excessively punitive" as long as there's a remedy at the end. It should not be the sole responsibility of the President to fix the criminal justice system by going back and correcting every single excessively harsh drug sentence. We need to rely on the judicial and legislative systems to work on the cause of these injustices; fair and equal justice will never be achieved if we rely on after-the-fact corrections to harsh sentences.

With that being said, I completely understand the concern for individual justice that could inspire the author to say that the President should be doing more to help those who have already been convicted under harsh and unfair laws. Every time the President uses his clemency power to pardon an individual who does not deserve to be in prison, then individual justice is served. However, I'm not sure how far the author expects the President to go with his clemency power. As the author notes, there are "probably more than 10" low-level, nonviolent drug offenders who may not deserve to be incarcerated. Is the President expected to go through every case and pardon every low-level drug offender? Given the fact that there were less than 50 commutations between the last four presidents, this seems unlikely.

Overall, I guess what I'm trying to say is that the clemency power has historically been used sparingly, to serve purposes of individual justice, and this seems like the only way that the power can really work. Of course, it is a good thing every time that individual justice is served, and I don't argue the author's point that the President could be using his clemency power more often. However, calling on the President to use pardons to correct our harsh penal system seems unrealistic and ineffective.

Posted by: Jen D | Apr 22, 2014 12:19:12 AM

I have been very disappointed in President Obama's use of commutations and pardons during his presidency. 10 commutations in 64 months is a remarkably small number. Pardons are a bit of a different story, but I am convinced that there are many worthy people out there deserving of a commutation or a pardon from President Obama.

As the ultimate sentencing "who" with basically ultimate and unlimited power to commute or pardon anyone's sentence, President Obama needs to use these presidential powers more. Rather than using commutations and pardons less than any of his modern Presidential predecessors, President Obama has every right to use commutations and pardons more because he has been saddled with a do nothing Congress and a historically obstructionist Republican party.

If President Obama waits for another sentencing "who" in Congress to pay the Smarter Sentencing Act, he's going to be waiting in vain because I do not think it is going to get passed while he is in office. The odds of it getting passed will likely fall after the midterms this year. President Obama deferring to Congress on this Smarter Sentencing Act issue will result in the federal government unnecessarily spending millions of dollars keeping crack cocaine offenders in prison who pose little threat and deserve their freedom.

Posted by: Max Reisinger | Apr 22, 2014 8:48:39 AM

I find it very interesting that as a Democrat, President Obama is lumped into the same category as Bush I, Bush II, and Reagan. One would think that a more democratic White House would be in favor of lighter sentences, especially when it comes to the harsh sentences for crack cocaine. It seems that Jacob Sullum is right- the Obama administration is either extremely picky or just lazy. As we discussed earlier in the semester, Obama commuted 8 sentences relating to crack cocaine charges. (http://www.nytimes.com/2013/12/20/us/obama-commuting-sentences-in-crack-cocaine-cases.html?_r=0). But is seems highly unlikely that there were only 8 cases deserving of commutation. The facts of these cases are not extremely unique as to make one think they are not more common in the criminal justice system. The article also mentions that there are approximately 8,800 federal inmates serving time for crack cocaine convictions who were sentenced before the lowering of the mandatory minimum. Furthermore, Obama recognized these individuals' time in prison was "unjust" as their sentence under the current law would be much shorter. So why are these 8 people so special? If sentencing under the old mandatory minimums was "unjust" for these individuals why not the other 8,792? The buck stops with President Obama in terms of sentencing as he has the power to commute sentences after these prisoners' cases have moved out of the criminal justice system. If President Obama is unwilling (or too lazy or too picky) to commute sentences that necessarily should be commuted, then society is left unjustly imprisoned individuals. President Obama should not take his power of commutation so lightly, and should avoid picking and choosing cases with no meaningful distinctions.

Posted by: Sarah H. | Apr 24, 2014 12:28:37 PM

I think he used way too much of his executive powers. He's seems to be legally suicidal.

Posted by: Mario Madrid | Aug 3, 2014 3:27:18 PM

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