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January 21, 2013

Will Prez Obama's clemency record ever match his inaugural rhetoric?

Blogging four years ago during the last day in which a US President took the oath of office, I commented in this post about the tendency of chief executives to invoke great rhetoric and wax poetic about freedom and liberty in America despite our country's recent record of locking up a record number of persons in jails and prisons.  I also asked in this follow-up post on the same day whether it was too early to start demanding President Obama use his clemency power to live up to our country's traditional commitment to personal freedom and liberty. 

Sadly, as P.S. Ruckman effectively documents and highlights in this new post, President Obama's first-term record on the clemency front is at once disgraceful and disgusting:

Barack Obama's first term has come to an end and we are now ready to report that his four-years as president represent the least merciful term for any modern president (Democrat or Republican) and, quite possibly, the least merciful in the entire history of the United States (see footnote below).

This is, of course, an incredible distinction for a president who repeatedly notes that America is a place where people get "second chances," from a president who complained bitterly about overly-harsh sentences given to criminal defendants simply because they were African-American, and from a president who promised us "hope and change."

Not surprisingly, this ugly clemency record did not prevent President Obama from kicking off his secord term with more empty inaugural rhetoric about freedom and liberty, and I found these particular phrases from Obama's speech today especially notable:

We do not believe that in this country, freedom is reserved for the lucky, or happiness for the few....

[O]ur interests and our conscience compel us to act on behalf of those who long for freedom.   And we must be a source of hope to the poor, the sick, the marginalized, the victims of prejudice — not out of mere charity, but because peace in our time requires the constant advance of those principles that our common creed describes: tolerance and opportunity; human dignity and justice.

We, the people, declare today that the most evident of truths — that all of us are created equal — is the star that guides us still; just as it guided our forebears through Seneca Falls, and Selma, and Stonewall; just as it guided all those men and women, sung and unsung, who left footprints along this great Mall, to hear a preacher say that we cannot walk alone; to hear a King proclaim that our individual freedom is inextricably bound to the freedom of every soul on Earth.

As all students of mass incarceration know too well, a large number of persons locked in the cages of our nation's jails and prisons are "the poor, the sick, the marginalized, the victims of prejudice"; and the fact that they have committed crimes does not mean they do not "long for freedom," nor does it mean our nation and its peoples should no longer be compelled by our conscience to be a "source of hope" to them.  Indeed, as MLK said decades ago and as Prez Obama reminds us today, each and everyone one of us has "our individual freedom .. inextricably bound to the freedom of every soul on Earth" including those souls who have violated our criminal laws and now have their liberty curtailed.

Given his track record to date, I do not expect much change from President Obama on this important (but not politically popular) front.   But I will continue to have hope, not so much because I have much faith in this President's merciful heart, but because I do have great faith in this nation's merciful soul.

January 21, 2013 at 02:55 PM | Permalink


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Doug, President Obama is a profoundly contemptible human being. Why on earth would you expect him to keep his word?

Posted by: federalist | Jan 21, 2013 4:52:12 PM

Interesting hypothetical:

If Martin Luther King, Jr. were alive today, would Obama have him indefinitely detained as a terorist?

I thin the answer is that, yes, Obama would most definitely do so if he thought he could get away with it. And if the last twelve years have taught us anything, it is that there is almost nothing that these guys can't get away with.

Posted by: Janice | Jan 21, 2013 10:10:22 PM

Obama has perfected Orwellian double-speak and the ability to lie to the public with a straight face with and without a teleprompter because he half-believes his lies. The MSM cannot ask him a straightforward question without offending his highness and thus chooses to not do so. Incarceration for truly victimless crimes for long periods of time is a worse offense against humanity than what was orignially charged.

Government at the hands of the self-interested absolutely deserves no respect and will receive none from me.

Posted by: albeed | Jan 22, 2013 12:02:48 AM

There's no denying President Obama's clemency record is more than disappointing. I wonder, though, has anyone done a comparison of the number of defendants who received clemency from prior presidents (and the reduction in prison time they received, if any) with the number of federal prisoners who have received reductions in their sentences as a result of the Fair Sentencing Act of 2010 and the amount of reduction in their prison terms?

I still marvel at the fact President Obama carried through on his initial campaign pledge to merely reconsider federal drug sentencing laws and actually achieved such a large step in correcting the unjustified 100:1 powder-to-crack ratio that was widely recognized as an obscene legacy of modern day racial disparity.
Tell me again what comparable efforts President Obama's predecessors sought and/or achieved?

Posted by: DCH | Jan 22, 2013 10:40:20 AM

Federalist, that you of all people call Obama contemptible is a riot. Get over it, he's the President--twice!! you LOST. I know it hurts, but suck it up. Albeed, you too need to follow the election results.

Posted by: dave from texas | Jan 22, 2013 11:37:32 AM

I'd love to see Obama issue some more pardons, but let's not pretend that we don't understand the political forces at work that make these decisions very difficult, particularly for a Democratic president in a politically polarized country. Even Republicans aren't immune to this - look at what happened to Haley Barbour and Mike Huckabee.

Posted by: Ryan from Las Vegas | Jan 22, 2013 2:11:54 PM

dave from texas --

May I assume that you were equally reverent toward GWB when he was President?

Posted by: Bill Otis | Jan 22, 2013 2:26:18 PM

DCH: President Obama could have instructed his subordinates in DOJ not to oppose motions for resentencing made by crack offenders sentenced under the old and discredited regime, at least in instances where there was no issue as to the defendant's statutory eligibility for resentencing under 3582(c)(2). He apparently didn't, and (at least in some instances) the line AUSA's are in fact opposing those motions and thus asking the courts to perpetuate sentences based on the old ratio and longer than what would be expected if the initial sentencing were occurring after passage of the Fair Sentencing Act. I haven't seen any national (or district-by-district) stats about how many motions they're opposing, and to what extent the courts are or are not ignoring the Government and resentencing over its opposition.

Posted by: JWB | Jan 22, 2013 4:16:38 PM

JWB: You identify correctly more that Obama should have done to retractively address the racial disparities perpetrated under the 100:1 ratio -- racial disparities that Former Presidents George W. Bush and Clinton made no effort to correct in the preceding 16 years.

My point remains that Blogsters like Profesor Berman who brand President Obama as having an "unmerciful heart" and as "disgraceful and disgusting" for not using the pardon power as freely as his predecessors, might first consider which of the last three presidents has had a greater impact on curbing the plague of mass incarceration.

The greater number of pardons (at least some of which were granted only after the recipients' served their full prison term) by George W. Bush (who impeded the right of habeas corpus in the wake of 9/11 and cheerfully bragged about his record of executing Texas prisoners) and Bill Clinton (whose enactment of AEDPA effectively precluded meaningful federal habeas review for many state prisoners and sharply limited federal habeas relief) may have achieved only a miniscule fraction of the impact in stemming the tide of mass incarceration that President Obama achieved by promoting and signing The Fair Sentencing Act. As my initial question reflects, I can't know that for sure without some comparative analysis of the number of persons George W. and Clinton pardoned and the amount of prison time the recipients of those pardons were spared compared to the number of people who were spared the pre-FSA mandatory minimums and received 18:1 guideline range sentences rather than 100:1 range sentences. I think that sort of analysis would shed more light than merely inviting partisan character assassination.

Posted by: DCH | Jan 23, 2013 10:32:27 AM

"Federalist, that you of all people call Obama contemptible is a riot. Get over it, he's the President--twice!! you LOST. I know it hurts, but suck it up. Albeed, you too need to follow the election results."

"Scoreboard!" doesn't usually settle an argument about morals. But bereft of the ability to argue logically, liberals usually resort to such idiocy.

I could cite numerous examples, but the exhortation of Latinos to "punish their enemies" is beneath contempt. QED.

Posted by: federalist | Jan 23, 2013 10:10:26 PM

You raise an interesting point, DCH, and I do think Prez Obama merits some credit for finally helping get crack reform over the hump. But, still disappointingly, Obama campaigned in 2008 saying crack/powder sentences should be equal, and yet he has not used his clemency power to this effect in any way for any defendants. In other settings, he has said he will --- and then has --- used his executive authority to act when Congress won't. Why not in this area, which has even more constitutional history and pedigree than other execution actions?

For me, saying he is not as bad as GWB and Clinton in this context provides very little comfort, especially given that the extent/costs of federal mass incarceration and prison overcrowding is much worse now than during prior administrations. And in the reality that Obama in 2008 campaigned and made various claims on the criminal justice fronts that were different in tone and character than GWB and Clinton, and I think the criticisms here are fair and justified.

That all said, you provide a useful reminder that a lot of crack defendants got out a bit earlier because of the FSA, and they should rightly be grateful for President Obama's work (and others) to this end. But this is of little benefit to the many thousands of other federal offenders for whom Obama has not presented any hope or any positive change when it comes to clemency decision-making.

Posted by: Doug B. | Jan 25, 2013 12:18:19 AM

The President, as his backers are wont to say, was re-elected on his record. That record, as Doug has pointed out, included NOT granting clemency to crack pushers despite his 2008 criticism of crack penalties. It also incuded presiding over (even if not causing) a continuing decrease in the crime rate, to the point that it is now as low at it's been in 50 or 60 years.

For this reason, crime was not even on the radar screen in the 2012 campaign, and even less was his failure to grant clemency. Since Obama, not without reason, views his re-election as an endorsement of his record, why would he change behavior that the voters have approved?

Sure, a tiny sliver of the electorate (the drug bar and legal academia) want it, because dummed-down punishment (or none at all) is their thing. So what? The question is not what the tiny sliver wants, it's what the overall electorate wants.

Posted by: Bill Otis | Jan 25, 2013 3:33:14 AM

Yeah, Doug B., you're right, Obama didn't get Congress to bring the powder:crack ratio to 1:1, and "merely" got it down to 18:1 from 100:1. And thousands more deserved still further relief. Yet, as far as I can trace your posts about George W's first term clemency record (a total of 31, according to your December 22, 2004 posting), this was never more than "stingy" in your view. It just seems that before you start hurling greater opprobrium against Obama that you make some effort to identify amd compare the real-time reduction in prison terms Obama actually brought into reality. I never dreamed I would see anyone get a modern day senate to vote -- let alone in near unanimity -- to reduce the ratio anywhere near that far. [Let me hasten to add, that I fully recognize the critical role you personally played in convincing the courts that the FSA was intended to apply retroactively to August 3, 2010, in light of the emergency guideline amendment provisions; your articulation of that circumstance literally turned the tide that led to Dorsey).]

As far as the delusional notion that this last election was a referendum on Obama's rate of clemency, I must have missed the convention/stump/rally speeches where he and his supporters championed this (quite a contrast to the headline debate on the role of government and spending on fixing the economy).

Posted by: DCH | Jan 25, 2013 11:05:26 AM

Given that the Fair Sentencing Act passed the House by something like 418-0 and the Senate by some overwhelming margin I can't be bothered to look up, I don't view it as a particularly impressive or heroic or risky expenditure of political capital by whoever happened to be in the Oval Office at the time. I mean, I suppose it was useful that the Administration didn't get in the way. But the politics of the whole thing (as happened earlier with reform of the old Rockefeller sentencing regime in New York state) involved getting such overwhelming support for reform from conservative Republicans that everyone else was immunized from the risk of being campaigned against as "soft on crime" at the next election. Getting that sort of consensus does not seem like the current Administration's strong suit, but like I said at least they didn't affirmatively screw it up (or politicize it in a counterproductive way that might have kept some Republicans from supporting it just to avoid beeing seen as giving the Administration a "win").

Posted by: JWB | Jan 25, 2013 11:45:42 AM

Both DCH and JWB raise valid points, which I am inclined to summarize by saying everyone is likely to agree that the Obama Administration his been (slightly? significantly?) better on criminal justice issues than its immediate predecessors, but that this fact is hardly itself a mark of considerable distinction.

The primary reason I am much more critical of Obama than I was of Bush is because Obama gave a big speech at Howard University in 2007 in which he specifically criticized GWB for talking the talk but not walking the walk on reducing punishments for low-level, nonviolent drug offenders.

Another reason is suggested by JWB's comments: I think if done wisely, a few pardons and commutations can be a bipartisan affair and a political opportunity --- e.g., I bet some GOP members of congress get letters from persons seeking clemency, and Obama could reach out for clemency suggestions from these GOP folks. Or he could reach out to former GOP govs like Erlich and Huckabee to run a clemency commission inside the White House.

Posted by: Doug B. | Jan 26, 2013 11:55:14 AM

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