Mercy in the Drug War

If the DOJ is to be believed, the President, who has so far granted the fewest Presidential pardons since John Adams, may grant clemency to hundreds, perhaps thousands of victims of the War on Drugs:

The Obama administration’s new clemency efforts became official today, as the Department of Justice announced the start of their revamp of the petition process that could end up commuting thousands of sentences. Deputy Attorney General James Cole promised “an extensive screening system” to identify only those who have served significant time in federal prison for their offenses, have kept their noses clean (figuratively and literally), and whose convictions did not involve violence. The DoJ will offer pro bono legal services to those who qualify to navigate the clemency petition process as well.

The criteria mentioned by Cole are published at DoJ as well:

  • They are currently serving a federal sentence in prison and, by operation of law, likely would have received a substantially lower sentence if convicted of the same offense(s) today;
  • They are non-violent, low-level offenders without significant ties to large scale criminal organizations, gangs or cartels;
  • They have served at least 10 years of their prison sentence;
  • They do not have a significant criminal history;
  • They have demonstrated good conduct in prison; and
  • They have no history of violence prior to or during their current term of imprisonment.
  • A few years ago, Congress reduced the huge discrepancy between cocaine and crack sentencing. The President appears to be mostly applying the Fair Sentencing Act to people who were swept up in the sentencing craze of the 90’s.

    This is part of a larger push, mostly at the state level, toward reducing mandatory sentencing and reducing non-violent prison populations. A lot of people are surprised that the push toward prison and sentencing reform is being largely driven by conservatives:

    In Texas, funneling money to special courts (like drug courts or prostitution courts), rehabilitation, and probation in an effort to make sure current offenders don’t reoffend, instead of continuing to make room for more prisoners, has resulted in billions saved and dramatically lower crime rates. In just the last three years, Texas has shut down three prisons.

    The conservative movement to reform prisons is not new. Republican governors in Georgia, Louisiana, Indiana, and Ohio have all made efforts in recent years to address growing incarceration rates. But it has largely remained on the periphery of the mainstream—the stuff of columns and local reports that do nothing to sway the general public.

    I, however, am not surprised. What conservative would oppose shrinking government, cutting spending and putting productive citizens to work? If someone is truly dangerous, they absolutely belong in prison. But there are thousands upon thousands of people in prison who are not dangerous. Hell, even some of those who committed violent crimes are not beyond redemption. Consider the case of Mike Anderson. Convicted of armed robbery, the State of Missouri mistakenly thought he was in prison for 13 years. The state suddenly realized their mistake and want to jail him. In the meantime, he’s become a carpenter, a business owner, a religious man and a law-abiding father of four. What’s the point in jailing him now? Does it make society safer? Prison is a means to an end; the end being a safer society. It is not an end in and of itself.

    For once, the Obama Administration is doing something that will reduce government power and result in an increase in freedom. I think that’s why the response I have seen in the conservative blogosphere has been, like Ed Morrissey above, cautiously supportive.

    One of the few dissenters is Andrew McCarthy, who claims the President is abusing his power. I find this argument dubious coming from a big-time supporter of the unitary executive who has argued that the President has the power to start wars and torture people. But I especially find it dubious because the pardon power is one of the few instances where the President has unlimited ability to check the power of the judiciary and legislative branches. Presidents have used this power extensively in the past — Ford and Carter for draft dodgers, for exmaple. The language is pretty straight-forward.

    The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

    This is constitutional and permitted. The pardon power can be abused, certainly. Bill Clinton’s final days in office come to mind. But the President isn’t abrogating a law. He is considering — on a case by case basis — the sentences of people who are serving harsher sentences than they would if they were convicted today.

    The more I look at this, the more it seems like a good idea. It’s a small step backward in the devastating War on Drugs our nation has been fighting for forty years. I don’t say this often but the President is doing the right thing.

    Comments are closed.

    1. richtaylor365

      A couple things;

      Mentioning that Obama has granted fewer pardons than anyone since John Adams is meaningless, they always do these in the dead of night as they are slinking out of the WH at end of term. I suspect he will up the ante considerably, probably during his last multi million dollar family vacation splurge.

      And I think you totally misread McCarthey. Pardons this sweeping (not individual acts of injustices but massive class action pardons targeting specific laws) are an abuse of power akin to the stuff he pulled with the ACA;

      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 any event, if the law is to be changed, our system requires that it be changed by passing laws in Congress.

      No where does he criticize the pardons, only the method as which they are delivered. He also gives a well aimed and needed shot at Justice, where was this zeal in acting on Fast and Furious or the IRS scandal? Going after underlings like James Rosen is more their style.

      Prison is a means to an end; the end being a safer society. It is not an end in and of itself.

      Prison is also the teeth in the application of justice.. If we are a nation of laws, a nation that requires its citizens (all its citizens) to live by and adhere to these laws, then justice must prevail when they are violated. No, I would not send him to prison, but any reasonable man (including Anderson himself) would understand that some recompense was required, either in the form of restitution or a fine.

      For once, the Obama Administration is doing something that will reduce government power and result in an increase in freedom.

      You don’t really think that was his true motivation, do you? The government reduction/increase of freedom is an acceptable level of collateral damage to achieve the greater good, that being to mitigate clearly racial (in his mind) laws. It’s all about race, always has been.

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    2. Hal_10000 *

      Mentioning that Obama has granted fewer pardons than anyone since John Adams is meaningless, they always do these in the dead of night as they are slinking out of the WH at end of term. I suspect he will up the ante considerably, probably during his last multi million dollar family vacation splurge.

      Not true. At this stage, Bush 43 had issued 60 pardons. By this point, FDR had pardoned over 1400 people. Clinton pardoned over 300 before the last minute rush. Carter pardoned the draft dodgers on his first day in office. Wilson pardoned over 500 people as a protest against Prohibition.

      I did read McCarthy’s piece and he’s still full of it. Congress has already recognized that the disparities in sentencing laws were ridiculous and changed the law. All Obama is doing is applying this retroactively to people who Congress has basically admitted shouldn’t have gotten such hefty sentences in the first place. It’s not a sweeping pardon. McCarthy didn’t even bother to wait until the DOJ announced their procedure. It will be looked at on a case-by-case basis.

      No, I would not send him to prison, but any reasonable man (including Anderson himself) would understand that some recompense was required, either in the form of restitution or a fine.

      I don’t disagree with this. Fines or probation. I would especially love to see him given some community service consisting of talking to young punks and telling them how he turned his life around and encouraging them to.

      You don’t really think that was his true motivation, do you? The government reduction/increase of freedom is an acceptable level of collateral damage to achieve the greater good, that being to mitigate clearly racial (in his mind) laws. It’s all about race, always has been.

      1) if it decreases government power, I’m not that worried about motivations; 2) while I think the disparities in powder-crack sentencing had more to do with a moral panic over crack, I can also see why black people would think the laws were racially motivated and that this is correcting an injustice.

      As Rand Paul has been arguing, there is a massive racial disparity in the enforcement of our drug laws. Black people are about as likely to use drugs as white people but are far more likely to get busted for it and far more likely to go to jail for it (stop and frisk, for example, resulted in more searches of black men in New York than there were black men and most of the busts were for possession). There are reasons for that disparity besides race, of course (likelihood of gang involvement, etc.). But I don’t think that factor can just be waved off as the imagination of “racialist” elements in Obama’s Admin (as McCarthy so charmingly puts it).

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    3. richtaylor365

      Bush 43 had issued 60 pardons.

      But not the one that he should have, for Scooter. For someone who has issued less pardons then anyone since John Adams, when all is said and done , his total might dwarf all others combined, kinda like what he did with the debt, he’s the man.

      All Obama is doing is applying this retroactively to people who Congress has basically admitted shouldn’t have gotten such hefty sentences in the first place.

      All Obama was doing is applying some common sense approaches/tweaks and changes to the ACA to make it more palatable to the American people, you really want to go with that?

      It is not his job to rewrite the law. For someone with as much Constitutional law experience, he just can’t figure out that whole separation of powers thingee.

      I can also see why black people would think the laws were racially motivated and that this is correcting an injustice.

      The injustice (as you put it) is still there, crack convictions illicit a much stiffer prison penalty than cocaine.

      Just to be clear, you have no problem with a president who believes his own individual moral relativism trumps codified law, that some issues are so important that they cannot left to the caprices of democracy or the antiquated decrees of a stogy old document that is over 200 years old, and that it is the duty of the president to right moral wrongs by wielding that power the people gave to him in the way of votes, a modern day Noblesse Oblige, to correct social injustices, by whatever means at his disposal?

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    4. richtaylor365

      I can just see a new president coming in, talking a page out of the Obama playbook with ,” You know, I’m a big Second Amendment guy, our fore fathers placed the ability and freedom to pack right up there with free speech and free to worship, all these gun laws are wrong and inhibit the freedoms men died to protect. I know Congress should do this but screw it, this is too important to me to leave it to someone else, I am issuing an executive order allowing any citizen to carry any firearm with any round capacity in any form he wants. You want freedom, you want the power of government limited, here ya go.

      Of course, for my money, I would prefer an executive order on taxation. If a president gets to decide willy nilly what laws are enforced and what ones get 86’ed, the current tax code should get bumped to the head of the line.

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    5. Seattle Outcast

      Carter pardoned the draft dodgers on his first day in office

      When I was a kid and this happened I thought it was a horrible thing he’d done. Draft dodgers, in my mind, were scum of the earth and should be banned from ever re-entering the country. But that was pretty much my parents talking.

      Add 40 years to that and I have come to several conclusions that directly contradict my childhood opinions. I’ve come to abhor the very concept of a draft or any version of mandatory government enslavement service. No government should be able to compel its citizens to “serve” in any manner at all – it’s a mark of tyranny and illustrates that the government in question considers you to be property.

      Carter did manage to get a few things right – deregulation of the airlines being a prime example. You may hate flying cattle class and being treated like a 5th class citizen, but air travel is actually affordable to most people any more. And letting all the smelly hippies come back from Canada turned out to be the right thing to do as well.

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    6. Seattle Outcast

      So, what’s going to happen to all those people in prison on drug possession charges when it all get legalized?

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    7. Ed Kline

      “All Obama is doing is applying this retroactively to people who Congress has basically admitted shouldn’t have gotten such hefty sentences in the first place.

      All Obama was doing is applying some common sense approaches/tweaks and changes to the ACA to make it more palatable to the American people, you really want to go with that?

      It is not his job to rewrite the law. For someone with as much Constitutional law experience, he just can’t figure out that whole separation of powers thingee.”

      Rich, the difference is that he is not legally allowed to rewrite the ACA, but he is allowed to pardon whoever the fuck he wants, and his criteria of why and who he pardons is irrelevant in the eyes of the law.

      I dont know how to show that I am quoting from above since we changed over to this place.

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    8. Ed Kline

      I can just see a new president coming in, talking a page out of the Obama playbook with ,” You know, I’m a big Second Amendment guy, our fore fathers placed the ability and freedom to pack right up there with free speech and free to worship, all these gun laws are wrong and inhibit the freedoms men died to protect. I know Congress should do this but screw it, this is too important to me to leave it to someone else, I am issuing an executive order allowing any citizen to carry any firearm with any round capacity in any form he wants. You want freedom, you want the power of government limited, here ya go.

      Still comparing apples and oranges. Pardons are his domain. It would actually be more akin to a future president pardoning people with long term prison sentences ( think Chicago, and D.C.) for simply owning handguns before District of Columbia v Heller.
      You’re kind of contorting yourself a bit to object to this on the grounds you’re choosing.

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    9. Hal_10000 *

      It is not his job to rewrite the law. For someone with as much Constitutional law experience, he just can’t figure out that whole separation of powers thingee.

      It is his job to apply the principles of justice that Congress has laid out. Congress has recognized that the law was too harsh. But under our system, people already convicted are grandfathered in. It’s you who don’t understand separation of powers. This is one arena where executive has pretty has a enormous amount of authority. I know of only one instance — when a Tennessee governor was basically selling pardons by the stack — where the legislature intervened.

      No, I don’t have a problem with the President, in the wake of Congress recognizing that the mandatory prison sentences were too harsh, applying those to people already sentenced. None at all.

      I can just see a new president coming in, talking a page out of the Obama playbook with ,” You know, I’m a big Second Amendment guy, our fore fathers placed the ability and freedom to pack right up there with free speech and free to worship, all these gun laws are wrong and inhibit the freedoms men died to protect. I know Congress should do this but screw it, this is too important to me to leave it to someone else, I am issuing an executive order allowing any citizen to carry any firearm with any round capacity in any form he wants. You want freedom, you want the power of government limited, here ya go.

      If Congress had repealed those laws and he was going to grant pardons to those who had previously violated them and were still in prison? No.

      Keep in mind, your theoretical isn’t theoretical. Wilson pardoned people convicted of breaking alcohol laws. So did FDR.

      All Obama was doing is applying some common sense approaches/tweaks and changes to the ACA to make it more palatable to the American people, you really want to go with that?

      Rewriting a law and pardoning prisoners are not the same thing. The latter is unquestionably in the President’s authority; the former is not.

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    10. richtaylor365

      No one that I know of (not me or McCarthy) is criticizing these pardons or saying he does not have the power to pardon, obviously he does. And this power grab isn’t nearly as bothersome as his ACA manipulating since he has consensus and Congress (in the form of the Fair Sentencing Act) on his side, but he is still manipulating the law, which is not his job nor authorized by the Constitution. The FSA attempted to get mandatory sentences more in line with what they deem reasonable, but crack offenses are still considered more serious than cocaine offenses and are still sentencing more harshly. What Obama is doing is invalidating even these sentence guidelines and declaring that regardless of what the law says, if you meet these arbitrary guidelines that he just thought up, you get a presidential pardon, ipso facto. Is it his worse congressional end run? Hardly, almost not even news worthy considering his other abuses. His conditions for the pardons seem reasonable to me so I support the move, I think McCarthy does as well.

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    11. Xetrov

      Pardons are his domain. It would actually be more akin to a future president pardoning people with long term prison sentences ( think Chicago, and D.C.) for simply owning handguns before District of Columbia v Heller.

      The analogy doesn’t apply. There are still federal laws against drug possession/use. The Court ruled on the gun laws, nullifying them, so anyone in prison for doing what is (and should have been all along) legal in DC/Chicago should be pardoned. Unless/until they do the same to drug laws or the drug laws are actually repealed, your analogy is wrong.

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    12. InsipiD

      This is the flip side of Obama justice. Rather than change the law, pick and choose who is exempted and leave some to face the full sentence. If the laws are bad laws, work hard through the process and change them. Using selective enforcement and pardons to remedy a problem is absolutely unacceptable to me. No matter how hard anyone tries, there will be some deserving person left to rot and somebody else let out who will probably murder someone within weeks. I’m blown away that so few people are trying to keep this kind of thing from happening.

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    13. hist_ed

      How about if a newly elected President Paul loses a fight with Congress about eliminating the income tax. He then announces that every year he is in office, he will pardon anyone who doesn’t pay their taxes.

      McCarthy also wrote on this more recently for National Review. http://www.nationalreview.com/article/376607/obama-subverts-law-name-clemency-andrew-c-mccarthy

      He makes a few more points:
      During the debate about the Fair Sentencing Act, assurances were given that it would not be applies retroactively but only going forward. It likely would not have passed without those assurances. As with the ACA, this shows that compromising with the President and his party legislatively is a fool’s errand because he will get what he can legislatively and then use or invent whatever power he needs to get more.

      These are also, apparently, not low level offenders or users-these are all traffickers caught with significant amounts of drugs

      Using the pardon power this way is profoundly anti-democratic. The people of the United States, through their elected representatives, enacted laws that are going to be swept away.

      I am not a fan of the war on drugs. This is not, however, a good way to short circuit it.

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    14. Ed Kline

      During the debate about the Fair Sentencing Act, assurances were given that it would not be applies retroactively but only going forward

      Who the hell agrees to lower sentencing guidelines in the future ( an agreement that admits that previously sentencing was too draconian, basically a mistake) but insists it cannot be applied retroactively?

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    15. hist_ed

      Lots of people in Congress. Pretty much every time sentences are revised, the revisions are not retroactive. The principal applies generally to non-criminal law as well. It’s that pesky rule of law thing again.

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    16. mrblume

      Opposing any part of this literally ensures you will go to hell. Not purgatory, hell. That is how clearly the moral lines are drawn.

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