« Split Fourth Circuit panel finds no means for federal prisoner to challenge collaterally wrongful LWOP | Main | Two distinct notable tales of crimes and punishment via the Grey Lady »

August 3, 2015

"Let's hear from the presidential candidates on clemency reform"

The title of this post is the headline of this timely new op-ed authored by Rachel Barkow and Mark Osler.  Here are excerpts:

On Thursday in Cleveland, Fox News will host the first substantive presidential debate. The moderators will undoubtedly pepper 10 Republican candidates with questions about health care, government spending, foreign affairs and immigration.

For once, they should also ask the participants what they would do with one of the most powerful tools given to the chief executive by the United States Constitution -- the pardon power, which vests the president with the unilateral and unchecked authority to reduce sentences of individuals who are currently incarcerated and clear the records of those who are already done serving their sentences.

Unfortunately, we usually pay attention to clemency only after it has been used in a controversial way. When Bill Clinton pardoned Marc Rich, we suddenly cared about clemency. When George W. Bush commuted the sentence of (but declined to pardon) Scooter Libby, people on both sides of the issue were upset. And no one has forgotten the Nixon pardon.

But the framers intended clemency to perform a systematic function in the constitutional system of checking overbroad laws and correcting injustices in individual cases, and that requires foresight, principles of action, and attention to structure. All of the modern presidents have failed to fulfill the framers' vision. Yet we never ask candidates how they would use this enormous power before they enter office — we just act surprised when they use it.

This is the right time to change that dynamic. President Barack Obama has announced an intention (so far unrealized) to use clemency aggressively to address the over-incarceration of narcotics defendants, raising the profile of this issue. That project has also brought to the surface both underlying policy issues and an unwieldy consideration process that is plagued with as many as seven levels of review.

And given the increasing bipartisan support to address mass incarceration, it is an opening to see how the candidates view the president's role in dealing with that issue. At a Republican debate, it opens the door for the candidates to critique the Obama administration's approach and to reveal what they would do to change what past presidents agree is an inefficient and ineffectual clemency bureaucracy. Republicans often value efficiency and cost savings, and a properly functioning clemency process offers an opportunity for both....

Whatever the answer, it will tell us a great deal about them. We will learn what kind of vision, if any, they have for changing entrenched and failed bureaucracies. And we will learn how seriously they view the problem of mass incarceration and criminal justice supervision in this country.

Our plea to the moderators of this and future debates (Democrat and Republican) is thus a simple one: For the first time, ask the candidates how they would use clemency, that great unchecked power of the presidency. They will certainly ask those who seek to be president how they would use the terrible swift sword of war; they should also be bold in asking the candidates how they would use this powerful tool of mercy in an age of mass incarceration and punitiveness.

August 3, 2015 at 09:24 AM | Permalink

Comments

"Whatever the answer, it will tell us a great deal about them. We will learn what kind of vision, if any, they have for changing entrenched and failed bureaucracies. And we will learn how seriously they view the problem of mass incarceration and criminal justice supervision in this country."

Any speeches or comments or position papers about clemency, if any, like all of the previous speeches, comments, or position papers about criminal justice reform in general, will be very sympathetic to clemency being granted more often and more easily.

However, if you compare all of these speeches side-by-side, there is very little difference. This is so because all of the politicians want to be so close to each other, that no one politician can call any of the others out on being soft on crime.

Of course, there are differences. But the proof of the cynicism of the politicians is that no one will call any one else out on these issues. This is nothing but a bipartisan attempt to neuter criminal justice issues in the upcoming election cycle.

So do any speeches, comments, or position papers, if any, mean that clemency will be granted more often and more easily?

Hell, no.

Posted by: Fred | Aug 3, 2015 10:37:59 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB