Obama’s spare use of his power to grant clemency through both pardons, which revoke an existing conviction, and commutations, which grant an early end to criminal sentences, has been documented in an extensive series by investigative outlet ProPublica. Starting after President George W. Bush’s decision early in his first term to rely on the recommendations of career pardon lawyers, the report found that whites were four times more likely than minorities to receive a presidential pardon.
As law professor Mark Osler explains in a column, the framers intended a much more robust presidential use of the pardon power:
The founding fathers did not intend for the pardon power to fall into such disuse. … Alexander Hamilton, in Federalist 74, argued that “the criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.”
Our federal system of criminal law has, of late, been “too sanguinary and cruel.” For example, thousands of federal prisoners still languish under long sentences doled out under the now-amended 100-to-1 ratio between powder and crack cocaine that was built into the federal statutes and sentencing guidelines. … At the individual level, there are strikingly strong petitions for clemency currently before the president. … One was from Weldon Angelos, who was sentenced to 55 years in prison for three small marijuana infractions and the possession of firearms that were neither used nor brandished. He had only one prior conviction, stemming from a juvenile court charge for gun possession. […]
The result was so unfair that the sentencing judge, George W. Bush appointee Paul Cassell, pled for a presidential commutation of the sentence on the very pages of the sentencing opinion, saying that the 55-year term of imprisonment he was forced by statute to issue was “unjust, cruel, and even irrational.” Cassell substantiated this by pointing out the types of crimes that would have received a much shorter sentence: hijacking planes, raping children and murder. […]
For too long, we have filled our prisons with similar minor-league players in the drug game. It might make sense if this had solved a problem, but it hasn’t. The billions spent have not bought success at reducing drug use in this country.
As the author of the ProPublica series, Dafna Linzer, pointed out on Twitter, it was one year ago today that President Obama last issued any pardons, so it is possible another round will come soon. It can’t come soon enough. President Obama’s abysmally low clemency rate is arguably not a sign that there are less deserving applicants, but rather that the process has changed — for the worse.