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November 25, 2009

The true sentencing turkeys on this Thanksgiving eve

Turkey_monster_397x224 As detailed in this FOXnews piece, President Obama showed his sense of humor when he issued his first turkey pardon this morning:

President Obama hammed it up on Wednesday, pardoning two turkeys Wednesday in a traditional White House ceremony that he joked didn't always end on a positive note. Accompanied by daughters Sasha and Malia, Obama honored a White House holiday tradition that dates to Harry Truman's time as president.

Looking at the turkeys -- Courage and Carolina presented by the National Turkey Federation -- Obama joked that he couldn't fault past presidents from eating turkeys. "That's a good looking bird," he said to laughter. Obama said the turkeys had the interventions of daughters to thank for this year's pardon "because I was planning to eat this sucker."...

Obama also noted that two other turkeys were donated to a D.C. charity. "So today, all told, I believe it's fair to say that we have saved or created four turkeys," he joked, alluding to his $787 billion economic stimulus package that has drawn criticism for the number of jobs the White House has claimed it has created.

Relatedly, as this NPR feature shows, the White House found the time to put together a funny video called "One Lone Turkey" that explains how a single turkey is going to get a second chance.  Though I am disinclined to be grumpy about this quaint new Presidential traditional, this AP article headline highlights why I cannot find this event too much of a laughing matter: "Obama's first pardon: A turkey named 'Courage'." 

I was hoping that President Obama and others in the White House would try to find a few real persons to make thankful this week with real-world clemency decisions.  As I have noted, in many prior posts President Obama is already historically slow in using his clemency power as he approaches the end of a full year in office without one single clemency grant.  Moreover, as this official webpage reveals, it appears that President Obama has over 3,000 requests for pardons and commutations sitting unresolved on his Oval Office desk.

So, one true sentencing turkey on this Thanksgiving eve is President Obama and criminal justice members of his White House team, none of whom seem to concerned with the fact that the President has now shown more concern about justice for terrorists and mercy for turkeys than for any others impacted by harshness of the modern the federal criminal system.

But I also think that the media, public policy groups and the left side of the blogosphere also merit some turkey awards this Thanksgiving eve.  Save for an effective commentary noted here yesterday, I have seem precious little recent media discussion of the failure of President Obama to bring any hope or change to federal clemency stinginess.  And lots of criminal justice groups and bloggers, who I think should be making a big stink about Obama's first pardon being a turkey, all seem to be conspicuously silent on this matter so far.

Some related posts on federal clemency realities:

November 25, 2009 at 12:40 PM | Permalink


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Doug --

Be patient. And give the guy a break. I'm no friend of this Administration, but you have to look at it from Obama's point of view. We are at the tipping point in the Afghanistan "war of necessity" (as he correctly said during the campaign), we have a catastrophic increase in the national debt, a jobless recovery (if a recovery at all), the mullahs in Iran about to build The Big One, a resurgent Russia trying to bully Europe (again), and on and on.

Don't worry. The time will come when he'll issue plenty of pardons. Whether it will include scandalous ones like those that marked Slick Willy's midnight pardon bonanza, I don't know. But I'll wager a goodly sum that, although I know you're uncomfortable with the wait, you'll be plenty pleased with the final product.

Posted by: Bill Otis | Nov 25, 2009 1:38:36 PM

Perhaps the reason for the lack of criticism is that clemency has become small-time, quirky, and mostly symbolic compared to the vast numbers sentenced to prison or probation. If there were a move afoot to commute sentences for some large class - say, folks caught up in the crack/powder disparity - maybe folks on the left would get more animated about it. As it stands, in recent years it appears you pretty much had to know somebody to get Presidential clemency attention.

Posted by: Gritsforbreakfast | Nov 25, 2009 1:42:15 PM

Gritsforbreakfast --

Why is there a need for blanket executive branch action when, by statute, previously sentenced crack defendants are already free to seek, and in fact in hundreds of cases are seeking, re-sentencing? To grant a class-wide pardon would affront Congress's decision to allow review on a case-by-case basis. Doesn't a scalpel achieve better justice than a bludgeon?

Posted by: Bill Otis | Nov 25, 2009 2:33:48 PM

No, a scalpel won't do it. Some things like the Berlin wall need to be bludgeoned.

Posted by: beth | Nov 25, 2009 2:53:34 PM

Why should this be a surprise? Friedman recounts the story: "Ysabel Rennie of Columbus reported that the state's prisons 'corrupt, pervert, and dehumanize' their inmates. One story she told was of guards at Chillicothe Correctional Institute who dashed out the brains of prisoners' pet cats, in full view of the prisoners themselves. According the Rennie, cat lovers all over the country rose up in righteous wrath of this horrible deed; the 'murders and beatings of prisoners,' on the other hand, caused scarcely a murmur." *

The People love their turkeys.

* Lawrence M. Friedman, American Law in the 20th Century, p 214.

Posted by: George | Nov 25, 2009 3:20:52 PM

Bless your heart. Say it again Beth, I don't think that they heard you.

Posted by: HadEnough | Nov 25, 2009 3:45:53 PM

beth --

"No, a scalpel won't do it. Some things like the Berlin wall need to be bludgeoned."

Indeed. Too bad Barack couldn't make it to the 20th anniversary of the end of the Wall. I guess celebrating the victory of freedom over the Soviet Empire wasn't all that important.

That goodness it was that important to Ronald Reagan.

P.S. While we're granting clemency to all the crack dealers, let's go whole hog and grant it to all the meth dealers too. Wouldn't want to discriminate against "the most vulnerable dealers in society"!!!

Posted by: Bill Otis | Nov 25, 2009 4:56:48 PM

The Meth-Mouth Myth
Our latest moral panic.

The government always need an evil to prove the People need the protection of the government.

That is not to say meth is a safe drug, but it is still a moral panic that is working well. We might soon have a 100:1 meth ratio if we don't already.

Posted by: George | Nov 25, 2009 5:07:05 PM

Bill, I only gave an example of the kind of clemency proposal that might generate more excitement among the political left. It was an off-hand suggestion I'd never considered before writing it here. That said, I wouldn't mind a wide-scale pardon for petty drug offenders - crack, meth, or otherwise, perhaps starting with those who've completed their sentences and been out for a while without incident - with an aim toward reducing collateral consequences. Worse things could happen.

Posted by: Gritsforbreakfast | Nov 25, 2009 6:24:25 PM

George --

"That is not to say meth is a safe drug..."

Oh, c'mon George. Meth, crack, LSD, dada, dada, whatever. It's all just a bunch of fascists trying to terrorize us by pretending that drugs pose some sort of danger. What baloney! Indeed, you should hustle right out and start your kid on heroin, which is, after all, just another government boogeyman -- or, as you aptly put it, "a moral panic that is working well."

So by all means start him off this very night. After his rehab, if he makes it to rehab, he'll thank you for it.

Won't he?

Posted by: Bill Otis | Nov 25, 2009 6:46:10 PM

Grits --

Your suggestion would amount, in practice, to such a substantial change in the law that it would effectively shift to the executive branch Congress's constitutional authority to legislate. Put another way, it would amount to a retroactive veto of those aspects of the Controlled Substances Act that bar, to use your term, "petty" uses of crack, meth and other drugs.

Had Congress wanted to make the use or distribution of "petty" amounts of these drugs legal, it easily could have done so. It could have done so at the time the CSA was adopted, or in any of the 30 years since. But it didn't and hasn't. Indeed, in those 30 years, Congress has made the CSA more stringent, not more lenient. And it has done this under both Democratic and Republican control.

Of course the present Congress, if it chooses, could ALSO change the CSA, and/or the penalty structure associated with it. Thus far it has not. To have the President, this or any other, do by pardon what Congress has refused to do for more than a generation would be a breathtaking usurpation.

To understand this, consider what the reaction of the left would have been if George W. Bush had granted a class pardon to those convicted of what he determined to be "petty" business-related or environmental offenses.

Of course the left would have been outraged, and properly so. Indeed there would have been calls for impeachment. If Congress wanted to create such an enormous change in the law, it has the power to do so -- and it has taken a step in that direction, in the area of drugs, by allowing a case-by-case revisiting of crack sentences. For the President to simply brush that aside by fiat would go a long way toward creatng what was known in Nixon's time as "the imperial presidency."

It was not up to George Bush, by an extravagant use of his pardon power, to displace Congress's view of the proper range of punishments for business and environmental offenses. It is similarly not up to Barack Obama, by an extravagant use of that same power, to displace Congress's view of the proper range of punishments for drug offenes.

Posted by: Bill Otis | Nov 25, 2009 7:24:20 PM

Bill Otis,

The federal pardon power is so firmly lodged with the President that I don't buy your objection. In fact I could see such a "retroactive veto" being entirely appropriate if the president felt strongly enough about an issue. I in fact don't see any power issue if the president decided to give every federal offender an unconditional pardon, only political ramifications. There is in fact precedent for blanket amnesty, although I'm not certain they were accomplished without legislation.

Congress could then respond with impeachment proceedings if they too felt strongly enough. I don't see the courts being willing to question such a presidential order however. The power is simply lodged elsewhere in government. Congress doesn't even have all that much power to force enforcement of laws, so a President could decide not to enforce the CSA if it was believed that was a wise political move.

I suppose the cabinet could try the incapacitated president route, although again Congress would have to act as well.

Posted by: Soronel Haetir | Nov 26, 2009 1:32:36 AM

Bill, you're excellent at straw man.

Posted by: George | Nov 26, 2009 1:53:51 AM

For those of you interested in the actual history of the pardon power, past Presidents have used it to express their views on policy matters, even in the face of congressional opposition. For example, when Jefferson took office, he pardoned all persons remaining in prison for convictions under the Alien and Sedition Acts. This was not a large number of people, to be sure, but the symbolic significance of the act was not lost.

Similarly, Andrew Johnson's aggressive use of the pardon power significantly undermined the Radical Republicans plans for the post-Civil War reconstruction of Southern society. He did so by restoring the political and civil rights, as well as the property holdings, of the elite Southern "slaveocracy," who for a time had been almost completely disenfranchised as a result of their participation in the Rebellion. Among other things, this essentially shut down the land program administered by the Freedman's Bureau on behalf of emancipated slaves. If Johnson had not done so, the history of Reconstruction would almost certainly have been quite different. (And to address Soronel's question, the Sup. Ct. subsequently held that the President's authority to grant a general amnesty is free from congressional control or interference. See United States v. Klein, 80 U.S. (13 Wall.) 128, 141 (1871)("[T]the President’s power of pardon is not subject to legislation . . . Congress can neither limit the effect of [a] pardon, nor exclude from its exercise any class of offenders.").

Finally, and perhaps most relevant to contemporary concerns, when Kennedy took office, his brother, the AG, instructed the director of BOP to survey the wardens of federal prisons and report back on those prisoners serving mandatory minimum drug sentences who were good candidates for commutation. By today's standards, these sentences don't seem especially draconian, but for their day, they were quite severe. As the Pardon Attorney expressly acknowledged at the time, this was a deliberate, systematic attempt to use the pardon power to promote the President's views about sentencing policy. Between Kennedy and Johnson, about 200 such commuations were granted, arguably paving the way for the eventual repeal in 1970 of most mandatory minimum drug laws.

Posted by: Sam | Nov 26, 2009 10:20:49 AM

George --

"Bill, you're excellent at straw man."

Not really. If you think drugs are so wonderfully benign that we should water down criminal penalties for them, then you should encourage your kids to take them. After all, as we constantly hear from the pro-drug side, they open up your consciouness. Indeed they're medicinal! At worst, even if they have a few harmful effects here and there, those are vastly overblown, as you yourself took pains to point out by linking the article about the "myth" of meth mouth.

It's not a strawman to quote your own words. Here they are: Meth, which even most of the pro-druggies have qualms about, is, to you, merely a tool for "a moral panic that is working well."

Translation: There's no significant danger, it's just a "panic" campaign by Republicans/Puritans/fascists/little-old-ladies-in-tennis-shoes to (again quoting you) "prove the People need the protection of the government."

How is it a strawman to quote you verbatim?

What we have here is not a strawman by me, but an attempt by you to minimize the dangers of drugs. But few people are buying it -- including, I strongly suspect, you. Which is the real reason that, thank goodness, you aren't ABOUT to start your kids on drugs. All I'm asking is that we maintain the legal regimen that will help other people keep their kids as safe as you, quite correctly, want to keep yours.

Posted by: Bill Otis | Nov 26, 2009 10:23:14 AM

Soronel --

"I could see such a 'retroactive veto' being entirely appropriate if the president felt strongly enough about an issue."

The Constitution does not provide for a retroactive veto, so whether it's "appropriate" is something of a moot point. In any event, it is not appropriate. It would completely destablize the law. The citizenry would not know from one administration to the next what the law either required or forbade, as the law could turn on a dime. A retroactive veto would forfeit one of the principal advantages of law itself, namely, the creation of a stable set of rules by which people could guide there present and future affairs.

"I in fact don't see any power issue if the president decided to give every federal offender an unconditional pardon, only political ramifications."

As an abstract matter, you may well be correct that there is no legal barrier to the President's pardoning everyone. But I think you understate things in saying, mildly, that there would be "political ramifications." What would actually happen is that the President would be removed form office within 48 hours as being disconnected from reality, and impeached and permenantly removed shortly thereafter.

While it is true that in very rare instances over the 200+ year history of the Republic, the President has granted blanket amnesty to narrowly defined categories of offenders, at no point of which I am aware has a President considered pardoning everybody.

Whether the Supreme Court would act in such a case is hard to predict. Under the literal terms of the Constituion, pardons are within the exclusive power of the executive branch, as you and Sam point out. However, it would not be the first time the Court had decided it was not bound by the text of the Constitution.

In the real world, it would, as I say, be a moot question. Before the Supreme Court could act, or decide not to act, the President would be carted off to Belleview.

Posted by: Bill Otis | Nov 26, 2009 11:03:33 AM


I think you are entirely correct that it would be crazy for Obama to deliver a general jail break and pardon everyone. You are also right that it would undoubtedly get him impeached in short order, which is the constitutional remedy in such an event. After all, Andrew Johnson nearly got impeached for his use of the pardon power. So, Obama's not going to do anything of the sort. I only want to point out that my three examples above are merely illustrative; it is not an exaustive list. The eclipse of the pardon power as a meaningful part of the criminal justice system is a late 20th century phenomenon.

As for a more realistic possibility, given the apparent consensus that the crack/powder disparity is not justified, I think a carefully crafted proclamation commuting the sentences of crack defendants who don't benefit from any prospective legislative change, and excluding those with, say, a violent record, would be politically feasible. More generally, the alleged political risk of exercising the pardon power is, in my opinion, greatly exaggerated. If it's done responsibly, I think the American public can accept forgiveness in appropriate circumstances.

Posted by: Sam | Nov 26, 2009 1:26:45 PM

Sam --

While a pardon of the sort you describe might be politically feasible, it would not be broadly popular. There was a reason Bill Clinton waited until there was no political accountability left to issue his batch of pardons.

I agree that the electorate can accept forgiveness. It is more likely to do so when there is some convincing demonstration that the persons seeking it have done something to earn it.

I am not among those who think crack sentences should be lowered to equal powder sentences, nor do I think there is a "consensus" for that view. There is, however, a majority of those currently in power who hold it, so that's the way it is. Unlike some here, I do not believe, via "jury nullification" or any other means, that individuals are entitled to decide the law for themselves. So if I don't like it, that's too bad for me. The next big election is only 12 months away.

The method better designed to achieve justice (if this sentence-lowering business is looked upon as justice) is to allow a re-visiting of sentences on a case-by-case basis. Automatic, across-the-board decisions in sentencing are more likely to be addressed to political realities (such as Obama's need to assuage his base, given its upcoming consternation at increasing troop levels in Afghanistan) than to public safety realities (such as what crack dealers are likely to do once back on the street).

Posted by: Bill Otis | Nov 26, 2009 4:49:52 PM

Bill, nobody suggested "pardoning everybody"; you really are at this point having some weird, schizophrenic conversation with yourself, not anyone here. Sam's point was that wider scale pardons are entirely legal and that there's plenty of precedent for them. Calling the idea a "retroactive veto" and claiming it's not allowed was nonsense. You're projecting your own policy desires onto the debate and pretending things you don't like aren't legal with no basis at all. There may be political ramifications to issuing class pardons of the type I suggested, but it's entirely within the President's power.

Posted by: Gritsforbreakfast | Nov 27, 2009 8:02:47 AM

Grits --

1. Can you write a post without the ad hominem stuff?

2. You might want to save your psychiatric diagnoses for when you become a psychiatrist.

3. "Bill, nobody suggested 'pardoning everybody'; you really are at this point having some weird, schizophrenic conversation with yourself, not anyone here. Sam's point was that wider scale pardons are entirely legal..."

Grits, nobody suggested that "wider scale pardons" were illegal. Are you having a weird, schizophrenic conversation with yourself?

4. "Calling the idea a 'retroactive veto' and claiming it's not allowed was nonsense."

I don't know whether you ever wrote a brief for submission to a court, but if you did, you should know that statements like that are merely conclusory and do not advance the argument.

BTW, a blanket pardon for persons convicted of crack offenses would amount to a de facto, although not a de jure, retroactive veto of that part of the CSA covering such offenses.

5. At some point I suppose you might reveal why you're so enthusiastic for crack and so convinced of its harmlessness. Until then, applauding the signal we would send by leniency for crack dealers remains puzzling. Puzzling, that is, unless it's part of an overall ideological outlook hostile to a drug-free life and indulgent of the alternative.

Posted by: Bill Otis | Nov 27, 2009 10:04:55 AM

No pardon for the victims of the lawyer client this holiday, including a little girl.


Posted by: Supremacy Claus | Nov 27, 2009 9:33:34 PM

All criminal lovers must pay for the catastrophic results of clemency.


Posted by: Supremacy Claus | Nov 29, 2009 9:37:25 PM

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