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March 30, 2010

"Justice Kennedy prods Obama to commute sentences"

The title of this post is the headline of this notable partial report on one of today's oral arguments from by Josh Gerstein over at Politico.  Here is how it starts:

During arguments at the Supreme Court today, Justice Anthony Kennedy lamented the paucity of commutations presidents have granted in recent years. Kennedy also seemed to prod President Barack Obama, who has yet to issue a single pardon or commutation, to wield the clemency power granted to chief executives.

The case before the court, brought by convicted cocaine dealer Percy Dillon, was about how much discretion judges have when resentencing convicts who are eligible for sentence reductions due to efforts to remedy differences between crack and powdered cocaine. Kennedy apparently surprised Justice Department attorney Leondra Kruger by asking whether prisoners like Dillon, who was sentenced to more than 26 years, might get any relief from the White House.

"Does the Justice Department ever make recommendations that prisoners like this have their sentence commuted?" Kennedy asked. "I am not aware of the answer to that, Justice Kennedy," Kruger said.

"Isn't the population of prisoners in the federal prisons about 185,000 now? I think it is. And how many commutations last year? None. How many commutations the year before? Five. Does this show that something is not working in the system? 185,000 prisoners? I think that is the number," Kennedy declared. "I'm not prepared to speak to that question today," Kruger replied.

In fact, according to this BOP webpage, the current federal prison population is 210,384 as of March 25, 2010.

March 30, 2010 at 11:01 PM | Permalink


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I do think Kennedy has a point. Namely, why should the court or Congress need to fix every injustice when the Executive has the power to do it too. Not every wrong should require a fix from a SC case or a Congressional law.

Posted by: Daniel | Mar 31, 2010 1:10:19 AM


Sadly, the answer to your question is that while it may be good justice for a Governor or President to exercise clemency, it is bad politics.


Posted by: bruce cunningham | Mar 31, 2010 5:24:47 AM

I wonder, Bruce, whether this is outdated DNC thinking that leaves Democrats often coming off as "Bush-lite." While Bush's "decisiveness" may have been misguided, he was (at least at one time) respected for taking stands rather than playing nine-dimensional chess with his finger constantly in the political winds. What an opportunity for Obama to take a stand that disparities are wrong and that long terms for non-violent offenders are no longer affordable no longer properly viewed as just.

Posted by: David | Mar 31, 2010 4:24:28 PM

Justice Kennedy's needling President Obama about pardons (exclusively an executive branch prerogative under the Constitution) has about the same appeal as President Obama's needling the Justices in the SOTU about their interpretation of the First Amendment (exclusively a judicial branch prerogative under the Constitution).

Posted by: Bill Otis | Mar 31, 2010 10:53:28 PM

Someone -- perhaps you Doug -- should tell Justice Kennedy that there are 209,000 inmates in the federal prisons, 27% of whom are foreign nationals (!)....

Posted by: Moshe Avram | Apr 1, 2010 4:05:54 PM

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