Obama May Grant Clemency to Thousands of Drug Offenders. That’s Not Enough.

The law, lawyers, and the court.
April 25 2014 4:46 PM

Power of the Pardon

Obama may finally use his. But can mass clemency fix a broken criminal justice system?

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Linzer also highlighted a particularly glaring case in which Clarence Aaron, a black man serving three life sentences for cocaine distribution who had no prior record, was turned down for a pardon even though the prosecutor and the judge supported commuting his sentence. Ronald Rogers, the pardon attorney who just lost his job, left out their recommendations in advising the White House to turn Aaron down. After another investigation, the inspector general for the Justice Department found Rogers had misrepresented the case without input from anyone more senior at the DOJ.

Obama finally pardoned Aaron last December, but the fact that Rogers stayed in office until this week is one measure of how reluctant the president has been to take on the larger breakdown in the pardoning system. Perhaps the idea was that if Obama hardly pardoned anyone, he couldn’t be accused of pardoning unfairly. Reagan and Clinton granted 1 in 100 pardon applications. Under George W. Bush, the rate fell to 1 in 1,000. In May 2012, the rate for Obama was 1 in 5,000. That’s partly because the number of applicants has risen with the prison population. But it’s also because Obama has played it so safe. Even with increasing bipartisan consensus that federal drug sentences have become too draconian and costly, the sad fact is that there’s always a political case to be made against letting people out of prison.

But now that Rogers is gone, Cole is talking not just about making more pardons, but also about addressing “older, stringent punishments that are out of line with sentences imposed under today’s laws.” He described surveying all 215,000 federal inmates as a means to identify applicants, and he has written to the 93 U.S. attorneys for recommendations. Even more promising, reform-minded groups like the ACLU, the American Bar Association, and Families Against Mandatory Minimums would play a direct role, recruiting and training lawyers to use the completed surveys to screen for eligible applicants.

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Still, the pardon process is inevitably tricky and technical, and the devil is in the details. According to the Washington Post, here are the criteria for a pardon Cole laid out:

Offenders seeking clemency will have to have served at least 10 years of their sentence, have no significant criminal history, and no connection to gangs, cartels or organized crime. Applicants also must be inmates who probably would have received a “substantially lower sentence” if convicted of the same offense today. And to be eligible, they must have demonstrated good conduct in prison.

This sounds like the swing Holder took last summer at harsh sentencing, when he directed federal prosecutors to stop specifying the quantity of drugs for certain offenders so as to avoid triggering a mandatory minimum sentence. Then as now, it’s not clear how a grand pronouncement plays out on the ground. Traditionally, pardons have often turned on whether prisoners significantly cooperated with the prosecution, were seriously ill or elderly, or simply serving an unduly severe sentence. The key limiting factor on Cole’s new list of standards is the requirement that a prisoner would have done much less time if sentenced today. That could be a narrow category: drug offenders sentenced to long terms before the Fair Sentencing Act of 2010, which reduced the disparity between sentences for crack and powder cocaine.

If that’s all the proposed reform adds up to, it’s too minor a tweak to the system. It might not even address some of the most sympathetic cases—people who say they played unknowing or peripheral roles in a larger drug ring. People like Stephanie George, who said she didn’t know about the lockbox full of cocaine her boyfriend had hidden in her attic. The judge in her case 17 years ago said he had no choice but to sentence her to life, even though he saw her as “a girlfriend and bag holder and money holder but not actively involved in the drug dealing.”

In her excellent 2012 article, Love outlines a three-legged stool of comprehensive reform of the pardon power. First, the process needs clear standards, with reasoned explanations of why an application is granted. Second, whoever is in charge has to have independence from the Justice Department, real authority, and the confidence of the president. Third, the pardon process “must be accessible and responsive to people of all walks of life, and take into account the likelihood that many deserving pardon applicants will not have skilled counsel or well-connected supporters to advocate on their behalf.” In other words, the system for clemency has to be fair. For everyone—not just the prisoners sentenced under the single unduly harsh law Congress has so far seen fit to change.