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November 28, 2016

Will Prez Obama break out of his "clemency rut" and really go bold his last few weeks in the Oval Office?

Now that Prez Obama has granted commutations to more than 1000 federal prisoners (basics here), I suppose I should stop complaining that he has only "talked the talk" about significant sentencing reform.  Having granted now a record number of commutations to federal defendants sentenced to decades of imprisonment for mostly nonviolent drug offenses, Prez Obama can and should retire to the golf course with some justified satisfaction that he has created a new clemency legacy over his final few years as Prez.

That said, a few basic numbers about the reality of federal drug prosecutions in the Obama era should temper any profound praise for Prez Obama here.  Specifically, Prez Obama was in charge from Jan 2009 to Aug 2010 when the old 100-1 crack/powder ratio was still in place.  During that period, using this US Sentencing Commission data as a guide, well over 5000 federal defendants were sentenced under the old crack laws while Prez Obama and his appointees were leading the Justice Department.  So, during just Prez Obama's first 1.5 years in office, federal prosecutors sent five times as many drug offenders to federal prison under the old crack laws than Prez Obama has now commuted.  Moreover, given that the Fair Sentencing Act of 2010 only reduced the crack/powder unfairness, it is worth also noting that over another 20,000 federal defendants have been prosecuted and sentence under still-disparate/unfair crack sentencing laws from Aug 2010 to Nov 2016 (though crack prosecutions, as this USSC data shows, have declined considerably from 2010 to 2015). 

I bring all this up because I will not consider Prez Obama to be a bold and courageous executive leader in the clemency arena unless and until he grants relief to more folks than just over-sentenced nonviolent drug offenders.  Helpfully, this new Wall Street Journal commentary authored by Charles Renfrew and James Reynolds provides some distinct clemency fodder for Prez Obama to consider.  The piece is headlined "Obama Should Pardon This Iowa Kosher-Food Executive: Prosecutors overstepped, interfered with the process of bankruptcy and then solicited false testimony."  Because I have been an advocate for a reduced sentence for Sholom Rubashkin, whose 27-year federal prison sentence has long seemed grossly unfair and unjustified to me, I will not here make the clemency case for him in particular.  But this WSJ commentary serves as a useful reminder that there are certainly hundreds — and likely thousands and perhaps tens of thousands — of federal prisoners currently serving excessive federal prison sentences who were involved in criminal activity other than nonviolent drug offenses.

Candidly, I am not optimistic that Prez Obama will use his last seven weeks to get out of the notable "clemency rut" of his Administration's own creation.  I say this because I surmise that (1) (1) everyone involved in the Obama Administration's clemency push has been focused almost exclusively on low-level drug prisoners sentenced to a decade or longer, and (2) even the limited group of low-level drug offenders being actively considered still presents tens of thousands of clemency petitions to review.  Meanwhile, I suspect and fear, reasonable clemency requests from thousands of other potentially worthy applications are seemingly being rejected out-of-hand or being left for the next Prez to deal with.

I hope Prez Obama proves me wrong in the next seven weeks by granting clemency to some other types of folks seeing executive relief (both in the form of commutations and pardons).  But on most criminal justice reform issues, Prez Obama has left me deeply disappointed a lot more than he has pleasantly surprised me.

November 28, 2016 at 09:21 AM | Permalink


My friend Sholan Weiss still has a clemency petition pending before President Obama; he is serving the longest white collar (no drugs, non-violent) sentence in American history, 835 years! Also, take a look at Frank Plunk, who is serving a life sentence for flying cocaine around, with no violence. There are many worthy candidates still for pardons and commutations.

Posted by: Jim Gormley | Nov 28, 2016 9:27:18 AM

Stay safe Doug. Condolences to the entire OSU community.

Posted by: federalist | Nov 28, 2016 10:55:19 AM

Thanks, federalist. I am home safe and sound now, and harm to me has just been cancelled classes that I "need" to get through critical content for classes.

Posted by: Doug B. | Nov 28, 2016 11:54:48 AM

Concur with federalist

Posted by: Joe | Nov 28, 2016 12:52:07 PM

Is there any talk of flushing the prison system (starting in Al where the largest over crowding is)? Is there any reason why they can expedite our Vets and people who have already been cleared through the Two-Point-Reduction that have applied for the Clemency? The way this whole thing has gone on is just exasperating and full of false hope!

Posted by: Cherl Miller | Nov 28, 2016 6:42:05 PM

I do hope that President Obama will grant thousands more commutations but the process will have to be expedited in some way. What has not been discussed about the Obama clemency initiative is that over 20,000 clemency petitions have been denied or closed without action. This is an unprecedented number.

Posted by: beth | Nov 28, 2016 8:13:15 PM

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