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July 21, 2013

"Clemency Reform: We're Still Waiting"

The title of this post is the headline of this recent commentary by Julie Stewart, the President of Families Against Mandatory Minimums (FAMM), appearing at The Huffington Post.  Here are excerpts:

A year ago, The Washington Post and ProPublica reported that the Obama administration was set to reverse its poor record on clemency. At the time, President Obama was coming under growing pressure from sentencing law experts, sentencing reform groups, and civil rights organizations for granting fewer commutations and pardons than any president in modern history. Frustration was high because, in 2008, then-candidate Obama had railed against lengthy mandatory minimum sentences for nonviolent offenders, a growing population within the federal prison system.

In an apparent attempt to address this frustration as Election Day 2012 approached, an unnamed administration official told the Post-ProPublica, "There will be 76 days between the election and inauguration for the president to exercise his [clemency] power." Advisers said he planned to act whether he won or lost the election.

It didn't happen. Since winning reelection, President Obama has not commuted a single sentence. Instead, during the first nine months of fiscal year 2013, the president has denied 2,232 requests for commutation, more than any other president in history denied in a single year.

Last week, the Justice Department sent a letter to the U.S. Sentencing Commission warning that the growing federal prison population was causing severe budgetary problems. The Department said policymakers were confronted with a stark choice: either "reduce the prison population and prison spending" or be prepared for "fewer prosecutors to bring charges, fewer agents to investigate federal crimes, less support to state and local criminal justice partners, less support for treatment, prevention and intervention programs, and cuts along a range of other criminal justice priorities."

Rather than jeopardize public safety by cutting investigators and prosecutors, the Department recommended that the Sentencing Commission (and Congress) reduce drug penalties for low-level offenders and "focus severe penalties on serious and repeat drug traffickers." The question our country faces, the Department wrote, is "how will those involved in crime policy ensure that every dollar invested in public safety is spent in the most productive way possible?"

If the administration wants to make certain every dollar of our nation's public safety budget is spent productively, as it should, President Obama should begin to exercise his executive clemency authority. For starters, he might look at the 2,000 individuals serving sentences of life without parole for drug crimes. He also should look at the 8,800 individuals serving lengthy crack cocaine sentences that were based on a formula that was repudiated by Congress when it passed the Fair Sentencing Act of 2010....

The pardon power can't fix 30 years of flawed policy, but it can provide meaningful -- and best of all, immediate -- relief to thousands who have already served long sentences and who pose no threat to public safety. It has been a year since the White House said it would get moving on clemency. We're still waiting.

I believe Julie wrote this commentary before the President made his remarks about the Martin/Zimmerman case on Friday.  But Prez Obama said just days ago that the "African American community is also knowledgeable that there is a history of racial disparities in the application of our criminal laws -- everything from the death penalty to enforcement of our drug laws." Rather than simply talk about what he views as "history of racial disparities in the application of our criminal laws," perhaps Prez Obama might think about actually doing something about them by, for example, granting at least a few commutations to at least a few federal prisoners still serving extreme crack sentences under the pre-FSA 100-1 drug quantity sentencing ratio.

Sadly, it seems yet again that our nation's first African-American President (as well as its first African-American Attorney General) are far more eager to talk the talk than to walk the walk when it comes to criminal justice reform.

UPDATE:  I have just seen that Mark Osler has forcefully argued that the Obama Administration should be getting to work on crack clemencies rather than fly-speck the Zimmerman case in this commentary at MSNBC headlined "The speck in Florida’s eye, and the log in DOJ’s."  Here is one key paragraph from Mark's commentary:

For this administration to re-open the Zimmerman case, with all the resources that will take, would be the equivalent of pointing at the speck in Florida’s eye while ignoring the log in its own. While the Trayvon Martin case involved one tragedy, more than 5,000 African-Americans remain in prison under lengthy federal sentences under a sentencing regime which has now been rejected by all three branches of government. That scheme — which sentenced defendants to the same mandatory minimum term for either 500 grams of powder cocaine or just 5 grams of crack — was rejected by the administration, by the courts, and finally in 2010 by Congress, which reduced the ratio from 100-1 to 18-1.

July 21, 2013 at 03:40 PM | Permalink


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Doug --

"Rather than simply talk about what he views as "history of racial disparities in the application of our criminal laws," perhaps Prez Obama might think about actually doing something about them..."

Two questions. First, are you suggesting that the President consider race in deciding whether to grant clemency? Second, do you believe sentencing judges should consider race in deciding the length of the original punishment?

I have some other questions, too. We have often heard right here that it's better that a hundred guilty men go free than that one innocent one be convicted. Do you believe that? Do you think it applies to George Zimmerman (even assuming Zimmerman were guilty)? Can you think of any reason why not a single liberal, not a single officer of the Justice Department, and (for that matter) not the President, has repeated this oft-invoked saying, one we frequently hear in criminal law debates but that, it seems to me, is completely absent from liberal lips in the present context? Where has it gone all of a sudden?

Posted by: Bill Otis | Jul 21, 2013 4:08:27 PM

Many "liberals" have voiced support of the verdict (the blog TalkLeft was strongly supportive; not sure if they are "liberals" though!), in part because as a whole in the long run, a respect for "beyond a reasonable doubt" etc. would promote ends they are concerned about. The ACLU also officially noted they reject federal prosecution, saying they believe (noting current precedent is different) it is a sort of "double jeopardy." Again, not sure if they are "liberal." A defense attorney with liberal leanings at Prawblawg even provided a follow-up to previous remarks to make clear she felt the verdict was correct.

I am not sure if the "100 people guilty" concept has to be specifically cited here. As to "Prez" Obama, he has done something, including regarding drug courts and addressing differentials in drug sentencing. He also supported drug treatment. Our "first AA President" has done a few things to deal with criminal justice reform. Very well might do more, though w/o the Congress, there is just so much "Prez" Obama can do. Of course, he is not that "left," more moderate.

Posted by: Joe | Jul 22, 2013 11:21:14 AM

Joe --

After years of hearing the nose-in-the-air liberal anthem, "Better that 100 guilty men go free...!!!" -- and hearing it hundreds of times -- one might think we'd hear it at least once in the midst of all the commentary that has gone on with Zimmerman and Trayvon Martin. But I haven't. Have you? If so, you don't mention it.

So where has it gone? Why doesn't someone pipe up with it at any of these many Al Sharpton marches?

The answer is that the Lefties never before had an objection to an erroneous acquittal. To the contrary, such things were to be celebrated as the triumph of the beaten down defendant over the Big Bad Government. Liberals discover their outrage only now, WHEN THE GRIEVANCE GROUP MEMBER DU JOUR IS THE HOMICIDE VICTIM. Then, but only then, does the Left show its true colors. As I'm sure you have seen, there is suddenly talk on the Left of doing away with the BRD standard, and there is new enthusiasm for the dual sovereignty doctrine so that Zimmerman can be prosecuted in federal court based on the same facts.

Of course not a word of that newfound "tuff on crime" mantra (as Grits would say) was uttered when Casey Anthony got away with offing her two year-old so she could go back to party time. Not a single one of the many liberals who comment on this site said anything like, "This verdict is an outrage!" Nope, it was all, "Hey, look, this is how our system works, and it's the pride of America."

Unlike Casey Anthony, Zimmerman actually was not guilty of criminal homicide, and thus his acquittal was correct (as I believe you previously acknowledged). But instead of this correct verdict being "the pride of America," it is, according to the Outraged Left, the shame of America. We're all bigots! Jim Crow never went away! It's a gussied-up lynching!!

You can deny the Left's mind-bending hypocrisy all you care to, but it won't do any good. It's on MSNBC, among numerous other outlets, every night.

P.S. By contrast, when the Casey Anthony acquittal came down, did I or any other conservative call for abandoning the BRD standard? Not that I recall, but if you have an example, by all means show it.

Posted by: Bill Otis | Jul 22, 2013 1:03:01 PM

personally i think duel soverign is about as much illegal bullshit as the one on state secrets and soverign immunity!

If the feds want to try him. take over the case and do it. You don't get to get a do-over! just becasue you don't like the verdict of the first court!

Posted by: rodsmith | Jul 22, 2013 4:11:25 PM

A lot of verbiage there Mr. Otis.

As noted, many on the left supported the verdict, in part because it is correct under the system they support as a whole for criminal defendants in general. I don't know why one specific aspect of this system concerns you so much now. If they support the system, they support the 1/100 metric too unless otherwise noted, which is part of the logic behind BRD.

Posted by: Joe | Jul 22, 2013 6:38:40 PM

Joe --

"A lot of verbiage there Mr. Otis."

Is that YOU talking??

"As noted, many on the left supported the verdict..."

No they didn't. They ACCEPTED it with a bunch of sourpuss looks, which is different from supporting it. And you wisely don't deny that a lot of them neither supported nor accepted it, and instead are still calling for Zimmerman's white scalp, because Zimmerman is -- now how shall I say this? -- a "bad ass cracker."

Now there's principle for you!!! No wonder Holder puts his arms around Al Sharpton.

P.S. Since you didn't answer, I'll ask again: When the Casey Anthony acquittal came down, did I or any other conservative call for abandoning the BRD standard?

Posted by: Bill Otis | Jul 22, 2013 9:16:09 PM

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