« Holiday pitch from NY Times editorial board for "Cutting Prison Sentences, and Costs" | Main | "Society must not forget those it incarcerates" »

December 25, 2016

Fulsome (and incomplete) criticisms of Prez Obama's fulsome (and incomplete) clemency efforts

Liliana Segura has this lengthy new Intercept commentary headlined "Obama's Clemency Problem – And Ours."  I recommend the full piece and here are some excerpts:

President Obama broke his own remarkable clemency record [last week], granting an unprecedented 231 commutations and pardons in a single day. Headlines and tweets broadcast the historic tally; on the White House website, a bar graph tracks Obama’s record to date, which has dramatically outpaced that of his predecessors. With a total of 1,176 recipients, the White House boasted, Obama has granted clemency “more than the last 11 presidents combined.”

The president certainly deserves credit for making clemency a priority before leaving office....  Those who make the cut are, as the White House put it this week, “individuals deserving of a second chance.”  Many have been serving long mandatory minimum sentences for nonviolent drug offenses, crimes for which they have shown remorse.  Applications list courses completed, prison jobs maintained, records untarnished by disciplinary write-ups. Last spring, Obama highlighted a handful of men and women who “have made the most of their second chances,” describing their ability to leave prison, get a job, and piece their lives back together as “extraordinary.”

With his legacy and the politics of crime in mind, it makes sense that Obama would be cautious with his commutations, while amplifying the success stories. Yet there’s something disingenuous in the now-familiar rhetoric peddled by the White House with every clemency announcement, which repeatedly tells us we are a “nation of second chances.” Even within the narrow scope of Obama’s clemency initiative — and putting aside his treatment of immigrants and whistleblowers — this is wishful thinking at best.  As Obama himself has written in his congratulatory letters to clemency recipients, “thousands of individuals have applied for commutation, and only a fraction of these applications are approved.” Before the latest round of pardons and commutations, Obama had rejected nearly 14,000 clemency applications....

[W]hen it comes to the president’s pardon power — the one place where Obama could directly address the problem — there are few signs of a transformation.

Instead, the White House has promoted a story about exceptionalism: The president has proven exceptionally merciful and the clemency recipients are uniquely deserving — even extraordinary.  If the former is true, it is only because we have set the bar so low. As for the latter, it is certainly no small thing to survive — even thrive — while serving some of the harshest prison sentences in the world. But praising such men and women as exceptional diminishes the vast human potential that exists behind bars.  As one clemency recipient told me last month, recalling an exchange with the former White House pardon attorney, “I have a list of names of people I would like to see come home. But there are even more people who I’ve never met.  To give a list of names would exclude too many people.”...

On the same day activists published their letter exhorting Obama to expand his clemency efforts, the American Civil Liberties Union released a report titled “False Hope: How Parole Systems Fail Youth Serving Extreme Sentences.” Documenting how states routinely deny release to those eligible for parole, the ACLU offers numerous profiles of men and women sent to grow up (and in many cases, to die) in prison, whose efforts to prove their value as adults have been repeatedly rebuffed.  The stories are all too familiar.  They show how poverty, neglect, trauma, and mental illness factor into the lives of young people arrested for violent crimes.  They also show how harshly we continue to punish such youth, first with decades in prison, and then with repeated refusals to grant parole, no matter how much they change in the years that follow — or how much evidence shows that older people “age out” of crime.  People of color are seen as even less amenable to rehabilitation. Today, despite the wide rejection of the “superpredator” myth, state parole boards show very little mercy to people serving sentences that grew out of such racist hysteria.

As with Obama’s clemency initiative, the problem is largely political: Nobody wants to be the person to free an individual who might go out and commit another crime, even if it has been decades since the original offense — and even if the sentence was disproportionate to begin with.  What’s more, the ACLU notes, by focusing on the original crime, “parole board members may never know about the success stories: people convicted of serious crimes who, once released, have become successful community leaders supporting themselves and their families, who grew up and moved beyond the worst thing they ever did.”

One bright spot of Obama’s clemency initiative has been in these very kinds of success stories — publicized in the press and by the White House itself. But in the absence of a deeper rethinking of what we consider a second chance, such anecdotes are no match for generations of fear mongering that has entrenched fear of violent criminals into our very psyche, even at times when crime has hit historic lows....

Just a few days after the ACLU report on parole, the Washington Post unveiled a front-page, four-part investigative series called Second Chance City, which examined a D.C. law called the Youth Rehabilitation Act.  Passed in 1985, the law aimed to give judges discretion in handling juvenile cases — including by circumventing mandatory minimums — to allow deserving young people to avoid harsh punishment and, ultimately, expunge their record.  The Post series raised alarm, finding dozens of cases where beneficiaries of the law had gone on to commit new, often violent offenses, and describing the crimes in dramatic detail....

Most counterproductive was the framing of the series, placed squarely as a counterpoint to efforts at prison reform on Capitol Hill. “At a time when the Obama administration and Congress are working to ease ‘mandatory minimum’ sentencing guidelines for non-violent offenses, in part because of concerns that such laws have unjustly imprisoned large numbers of African-Americans,” the authors write, “D.C. law enforcement officials are increasingly concerned about the number of repeat violent offenders on the streets.”

The media should certainly scrutinize attempts at reform, pointing out where they fail. But the Post series was a reminder of how quickly we revert back to old narratives about crime, to convince ourselves that more imprisonment will keep us safe. With the real fights over prison reform happening at the state and local level — over things like the Youth Act — any efforts by the president were always going to be limited.  But if the pendulum is to swing back toward a more punitive era, as many fear it will under Trump, Obama must do as much as he can now to preserve the legacy he has carved out.

But beyond Obama — and if we are to make a dent in mass incarceration — Americans must also begin to think much bigger than his administration ever did. We should refuse to let the same government that gave us mandatory minimums define what counts as a “second chance.” We must stop letting our leaders — whether the president or a parole board — divest their responsibility to remedy draconian punishments by placing the burden on people who never should have received them in the first place. Ending mass incarceration will require mercy, but fundamentally it is about justice.  And the state has not even begun to account for its own mistakes.

I credit Segura for noting and lamenting that what's most remarkable about Prez Obama's clemency efforts are how non-transformative they are. Despite lots of advocacy from lots of advocates for the development of a new structure for clemency decision-making, Prez Obama has barely tweaked the status quo in order to better discover a few thousand prisoners with extreme prison sentences that could be shortened. Prez Obama merits praise and credit for doing something, but that something is largely a last-minute tweak rather than a timeless transformation.

The story of clemency here is a variation on the broader drug war reality throughout the Obama years. As of 2013, then-AG Eric Holder started talking up a new "Smart on Crime" initiative. But, despite this useful talk and some tweaked approaches to federal prosecutions, Prez Obama's Department of Justice for all eight years of his presidency continued to prosecute, on average, 20,000 new federal drug cases each year even though there is still little evidence that severe federal drug sentences for nonviolent drug offenders help reduce drug crime or violent crimes. (Of course, the prior decade saw on average 25,000 federal drug prosecutions, so the Obama DOJ can claim credit for being a lesser evil.) Running these numbers, if Prez Obama commuted 2000 federal drug sentences each and every year he was in the Oval Office, through the work of his DOJ, he still would be responsible for a net addition of 18,000 federal drug sentences each and every year.

Put simply, at the margins, Prez Obama left federal criminal justice matters somewhat better than he found them. But the federal criminal justice system continues to need a wide array of reforms that go, in my mind, far beyond the margins.

December 25, 2016 at 06:38 PM | Permalink

Comments

"Put simply, at the margins, Prez Obama left federal criminal justice matters somewhat better than he found them."

Yes, including helping those more likely in the system to have health care, rights if they were GLTBT etc. I am all for criticism but the cynical sorts here might somewhat note that a politician comes in and makes things SOMEWHAT BETTER. Meanwhile, he had to deal with military, economic, political and other matters, that these days are lot more in the forefront and more likely realistically to be the focus of a President's concern.

I guess a critic is less likely to give credit, more concerned with pushing though. Especially one who tries to find optimistic chance of change where a more cynical (realistic?) person would not.

Posted by: Joe | Dec 26, 2016 11:01:33 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB