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April 7, 2015

More reflections on Prez Obama's recent commutations

Writing in Forbes, Jacob Sullum has this new commentary about last week's notable clemency news headlined "Obama Steps Up Commutations, Feeding Drug War Prisoners' Hopes."  Here are excerpts: 

Obama’s latest batch of commutations, which doubled his total in a single day, suggests that the president, whose clemency record during his first term was remarkably stingy, is beginning to make up for lost time. Last year the Justice Department signaled a new openness to clemency petitions, laying out criteria for the sort of applications the president wanted to see. An unnamed “senior administration official” told Yahoo News the new guidelines could result in commutations for “hundreds, perhaps thousands” of federal prisoners by the end of Obama’s second term. The president will have to pick up the pace to reach that goal. But his avowed interest in ameliorating the egregious injustices inflicted by federal drug laws seems to be more than rhetorical.

Most of the drug offenders whose sentences Obama has shortened so far, including 13 of the 22 prisoners whose petitions he granted on Tuesday, were convicted of crack cocaine offenses. There is a good reason for that: Crack sentences are especially harsh, and although Congress reduced them in 2010, it did not make the changes retroactive. That means thousands of crack offenders are still serving terms that almost everyone now agrees are too long.

The Smarter Sentencing Act, which was approved by the Senate Judiciary Committee last year but never got a floor vote, would address that problem by making the 2010 changes retroactive. The bill was reintroduced in February, but its prospects are uncertain. In the meantime, Obama has the power to bring crack sentences in line with what the law currently deems appropriate.

With an estimated 8,800 prisoners who could benefit from retroactive application of shorter crack sentences, there is plenty of room for more acts of mercy like these. But the conventional wisdom is that commutations cannot help more than a tiny percentage of those prisoners. “While Mr. Obama has pledged to make greater use of his clemency power,” The New York Times reported on Tuesday, “the White House is unlikely to make a sizable dent in the prison population. Thousands of prisoners are serving time for drug sentences under the old, stricter rules.”

It’s true that commuting thousands of sentences, as that anonymous administration official quoted by Yahoo News envisioned, would be historically unprecedented. Yet it is clearly within the president’s constitutional authority, and there is less need for a careful, case-by-case weighing of each applicant’s merits when there is already a consensus that the mandatory minimums imposed on crack offenders between 1986 and 2010 were inappropriately harsh.

But let’s not get ahead of ourselves. Despite the concerns he expressed about our excessively punitive criminal justice system while running for president, Obama issued a grand total of one commutation during his first four years in office and finished his first term with a good shot at leaving behind one of the worst clemency records in U.S. history.

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April 7, 2015 at 05:19 AM | Permalink


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"The Smarter Sentencing Act, which was approved by the Senate Judiciary Committee last year but never got a floor vote, would address that problem by making the 2010 changes retroactive."

Yes, but a close reading of the SSA reveals the problem with the retroactivity provision. And, it shows that the SSA is a poorly drafted piece of legislation. The SSA says that the FSA applies retroactively. Yet, in another portion of the SSA the penalties for crack are reduced even further than was done by the FSA. There is nothing in the SSA that suggests it applies retroactively. So, if the SSA passes judges will be retroactively applying the penalty structure set forth in the FSA--a penalty structure that will no longer be in existence. The incongruity in the SSA is highlighted by the following example:

Defendant was convicted pre-FSA of distributing 50 grams of crack. Under pre-FSA law, he received a 10 year mandatory minimum. Had he been sentenced under the FSA, Defendant would have received a 5 year MM. If the SSA passes, the FSA will apply retroactively and Defendant will have his MM reduced to 5 years. BUT, under the new penalty structure in the SSA the FSA penalty structure is completely undone and all penalties slashed from 5 year MMs to 2 year MMs and from 10 year MMs to 5 year MMs. So, if Defendant were convicted after (the hypothetical) effective date of the SSA he would have only received a 2 year MM for distributing 50 grams of crack. The absurdity is that in one section the SSA says "sentence the defendants as if they were convicted under the FSA." Then in the next section, the SSA throws out the FSA penalty structure in favor of a new (even lower) penalty structure. This raises the question--does the SSA apply retroactively? Does Defendant receive the 5 year MM under section 3 of the SSA based on the FSA penalty structure, or does Defendant receive a 2 year MM under section 4 of the SSA based on the SSA's new penalty structure?

Unless I am misreading the SSA, it needs to be clarified to give courts direction on what they are supposed to do with defendants who fall into the situation described above.

Posted by: ZCB | Apr 7, 2015 9:04:24 AM

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