Tag: Criminal procedure

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.