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November 15, 2016

"Advocates Look To Obama For 'Unprecedented' Action On Federal Prison Sentences"

The title of this post is the headline of this astute new BuzzFeed News article that flags some issues and raises various questions that I have been thinking a lot about ever since last Wednesday around 2am. Here are highlights:

In recent months, President Obama has stepped up the pace of federal clemency — issuing three large batches of commutations in the month before the presidential election. The White House has regularly pushed those numbers as evidence that Obama has done more than his predecessors to address unfairness he has criticized in criminal sentencing.

But now that he is due to be replaced by Donald Trump, who ran in part by saying he would be a “law and order” president, leading advocates of the clemency process say it is the time for Obama to step up and do more. “[I]f President Obama believes these sentences are unjust, it is his constitutional responsibility to fix them,” Rachel Barkow, a member of the United States Sentencing Commission and NYU law professor, told BuzzFeed News this week....

To that end, the group, co-founded by Van Jones, will be in Washington this week, holding a series of events — including a vigil in front of the White House on Monday evening — urging Obama to take “unprecedented” action on clemency in the coming months.

Mark Osler, a law professor at the University of St. Thomas School of Law, acknowledged that time is short. “I think there will be — and should be — a sense of urgency,” he said on Friday. “I think the clearest thing is to find efficiencies — find ways to look at more people over these last weeks in a way that’s consistent and effective, in terms of evaluation. And that means, probably, looking at categories of people and identifying them specifically.”

Specifically, he pointed to “people who did not get the benefit of the Fair Sentencing Act in 2010” — which addressed cocaine-to-crack sentencing disparities in federal law, but was not retroactive. As such, Osler explained, many people “were stuck with a life sentence or the 10-year mandatory [minimum]” who could not receive that sentence today....

There has, though, been an election — one that likely will reflect at least somewhat different values on criminal justice issues, Osler acknowledged. “It’s fair to say that those people within this administration are very aware that the amount of care that they give to criminal law — and the excesses of criminal law — probably won’t be reflected in the next administration,” he said. Nonetheless, Osler said that Obama’s two elections more than suffice as a rationale for why Obama should continue pressing forward with the Clemency Project in his final months in office. “He’s the elected president until January 20, 2017,” he said. “I don’t think you sit back and don’t make full use of every day that you have.”

Barkow put it in similarly broad terms — but with a historical context. “Clemency is critical to an effective federal criminal justice system,” Barkow noted, pointing out that Alexander Hamilton wrote in The Federal Papers about the important role clemency plays in the American system. “The President has only a couple months to reach everyone. The fate of these people and their loved ones rests in his hands, and one of his lasting legacies can be to reaffirm Hamilton’s view that both ‘humanity and good policy’ require the broad use of the pardon power.”

In addition to my adoration for Rachel Barkow's always-timely Hamilton reference (and how it made me think of one of my favorite songs), I especially like Mark Osler's discussion of both the challenges and justifications for Prez Obama going bold on clemency over the next two months. For reasons I have explained in this Veterans Day post, I would especially love to see Prez Obama go bold in granting clemency for any and all veterans serving distinctly long federal sentences or still burdened by a federal conviction long after any public safety rationales for continued punishment have been extinguished.

Sing along with me Prez Obama and fellow clemency fans (with apologies to Lin-Manuel Miranda):

Prez Washington:

I wanna talk about [clemency righting]
I want to warn against partisan fighting
Pick up a pen, start writing
I wanna talk about what I have learned
The hard-won wisdom I have earned...
The people will hear from me
One last time
And if we get this right
We’re gonna teach ‘em how to say Goodbye
You and I—

Sec. Hamilton:

Mr. President, they will say you’re weak

Prez Washington:

No, they will see we’re strong

Sec. Hamilton:

Your position is so unique

Prez Washington:

So I’ll use it to move them along

Sec. Hamilton:

Why do you have to say goodbye?

Prez Washington:

If I say goodbye, the nation learns to move on
It outlives me when I’m gone
Like the scripture says:
“Everyone shall sit under their own vine and fig tree
And no one shall make them afraid.”
They’ll be safe in the nation we’ve made
I wanna sit under my own vine and fig tree
A moment alone in the shade
At home in this nation we’ve made
One last time

November 15, 2016 at 05:55 AM | Permalink


Especially now that "the unimaginable" has happened, the election of Trump, Obama definitely should not throw away his shot. Work!

Posted by: former AFPD | Nov 15, 2016 10:56:34 AM

It has become obvious that most of President Obama's efforts and legacy will be dismantled. Therefore, he doesn't have to worry about damaging down ballot races or Mrs Clinton's chances.. I know Clemency isn't the solution to the injustices, prejudices, financial and political incentives that make our justice system something to be ashamed of...I realize that major reforms were needed and hoped for....but since we will NOT get any of them....Please be bold and go over the delaying bureaucrats' heads and grant broad Clemencies to many more non violent drug offenders. It will not solve the terrible injustices but it may be the ONLY real impact he can have on real people and real families.

Posted by: Patricia williams | Nov 15, 2016 1:13:01 PM

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