On Tuesday, President Obama used the Constitution’s pardon power to shorten the sentences of 22 federal narcotics prisoners. All but one of them will be released on July 28, years ahead of their scheduled completion dates. This group came from every corner of the country, but had one thing in common: All had been sentenced to at least 235 months in prison, or nearly 20 years. Several were serving life terms.
In one day, Obama commuted almost as many sentences as Reagan and George W. Bush did in 16 years.
What we are glimpsing like a gorilla in the mist might be something so rare it has not been spotted in four decades: the principled use of the pardon power in a systemic way to address injustice. It could even be the reclaiming of a core Constitutional imperative that was squandered by President Clinton in his last days in office, and largely ignored by President Reagan and both Bushes. Or maybe not; it all depends on what comes next.
For principle to be served, 22 worthy, long-term narcotics prisoners granted release needs to become 2,200 or more.
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In the past few months, the president has begun to speak more frequently about the pardon power. At a town hall in South Carolina, he indicated he wasn’t getting enough good cases. In an interview with The Huffington Post, he elaborated a bit on that theme, setting it in a larger context: “I think what you’ll see is not only me exercising that pardon power and clemency power more aggressively for people who meet the criteria — nonviolent crimes, have served already a long period of time, have shown that they’re rehabilitated — but also we’re working with Democrats and Republicans around criminal justice reform issues,” Obama said.
He has been saying the right things. Now, we are seeing some action. To matter, there must be much more.
Three factors make this the right time. First, there is a remarkable bipartisan consensus that there are too many people in prison, particularly for narcotics crimes. Last week in Washington, an ideologically-diverse conference in Washington rallied around exactly that premise, led by Van Jones and Newt Gingrich. Koch Industries General Counsel Mark Holden urged them on.
These are odd times in criminal justice — and a perfect time for the kind of bold action that should follow Obama’s first timid steps on clemency.
Second, as that bipartisan group digs a hole in which to bury the so-called war on drugs, it creates an opportunity for the president to look to historical precedent. He could assert that after a war, we have seen presidents use the pardon power to relieve those who have been convicted of draft-dodging and desertion — crimes that must be harshly enforced during a war, but which look different once the war is over. Most recently, President Ford granted clemency to nearly 14,514 Americans in the wake of the Vietnam War, using a special bipartisan commission convened for that purpose.
Finally, Obama will have the help of hundreds of lawyers enlisted under a special program called Clemency Project 2014. They provide representation to inmates who typically would prepare petitions for release themselves. I am one of those lawyers.
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What could go wrong? A lot, of course. The president has most of the work ahead of him if he is really to reclaim the pardon power from its long period of disrepute. Tuesday’s 22 men and women are largely symbolic, representing the thousands like them who remain in prison.
Perhaps most importantly, the president should reform the pardon process so that it doesn’t need special initiatives like the Clemency Project 2014. Like Presidents Bush and Clinton before him, Obama complained of not getting good cases. The problem is the system that delivers those cases to his desk, which winds its way through the Department of Justice and the White House, navigating as many as seven levels of review.
This process differs from the way most states do it in at least two ways. First, no state houses the review of clemency in a bureau of prosecutors like the D.O.J. How could that not gum up the works? Second, many of the most efficient systems use a clemency board to make recommendations directly to the executive. Establishing such a board cuts the levels of review down to just a few and opens up other opportunities. For example, such a board could compile and analyze data on those released and their success, providing guidance for future cases.
The fact that 22 clemencies is historic says more about the state of federal clemency than it does about this toe-in-the-water action, given that there are over 200,000 people in federal prisons across the United States. At best, it is a symbolic gesture, and the coming reality will be good for the prisoners released, good for the communities they return to, and good for a living Constitution in need of balance.
Mark Osler, a former federal prosecutor, is a professor at the University of St. Thomas Law School in Minnesota.
Mark Osler