In late December, the Obama administration announced that the president would commute the sentences of eight prisoners serving decades-long sentences for crack-cocaine distribution (or intent to distribute). Last week, at a New York State Bar event, Deputy Attorney General James Cole announced that there may be more—many more. The administration, he said, will seek other drug cases to consider for clemency, working with the Bureau of Prisons to encourage inmates to request commutations and asking that state bar associations help with preparing their petitions.
After five years of organizing and lobbying the president to use his pardoning power for thousands still jailed under draconian sentences for crack, you might have expected the news to have clemency advocates jumping for joy. But they responded with well-worn skepticism. On his widely read blog, Sentencing Law and Policy, Ohio State law professor Doug Berman speculated that Obama's actions were more about holiday traditions than new presidential priorities. Even after Cole’s speech, Mark Osler, a law professor at St. Thomas University in Minneapolis and the creator of the country’s first clemency clinic, argued in a piece for MSNBC that without a plan for dealing with the influx of petitions, the administration was “only halfway there.”
Osler has a point: Obama officials already have 3,500 petitions sitting on their desks, awaiting a response. The problem isn't that prisoners aren’t asking—it’s that the administration isn't responding.
Obama remains the stingiest president in history with pardons and commutations. Given the sullied recent history of presidential pardons, that's probably no surprise. Presidential pardons and commutations have been awkward, messy affairs in the last two administrations. Bill Clinton’s exit from the White House was indelibly marred when he granted clemency to tax evader (and husband to a big Democratic donor) Marc Rich. George W. Bush found himself in hot water when he commuted the sentence of former vice-presidential adviser Scooter Libby, who was convicted for his role in outing Valerie Plame as a spy. Pardons are almost always met with some skepticism since, by definition, the president is letting someone off the hook early or giving them a second chance.
But the political risk of granting clemency to long-serving drug offenders had already lessened considerably by the time Obama took office. Over the four years before he moved into the White House, the U.S. Supreme Court made a series of decisions that dismantled many of the War on Drugs sentencing policies in general, and crack sentencing in particular. After the Anti-Drug Abuse Act of 1986 decreed that a gram of crack would be treated like 100 grams of powder cocaine, hundreds of thousands of predominantly black defendants received lengthy sentences for using or dealing crack. Additional laws ramped up the sentences, giving defendants extra time for gun possession, prior convictions, and other factors. The federal government began investing in law-enforcement strategies that often led to conspiracy charges, in which everyone involved in a drug scheme would get charged with the total amount of drugs dealt. According to the pro-reform group Families Against Mandatory Minimums, the Department of Justice spends one out of four dollars keeping drug offenders, most of whom are nonviolent, in prison.
The Supreme Court ruled against the 100-to-1 ratio in 2007. The same day Obama was inaugurated, the Court ruled that judges could use other ratios they deemed more appropriate. In 2010, Congress passed the Fair Sentencing Act, moving the crack-cocaine disparity down to 18-to-1—not the 1-to-1 ratio that activists wanted, but still much closer.
The rulings and the new law weren’t universally retroactive, though, and nearly 9,000 inmates are still serving sentences meted out under the old regime. Obama had talked in his campaign about unfair crack-cocaine disparities, lending hope to advocates for the thousands still jailed under policies now deemed unfair—and to those seeking commutations. But no action was forthcoming.
Five years later, encouraging more people to seek a pardon is a welcome gesture. But what will it yield? “The problem is that the process doesn’t work,” writes Osler. “The pipeline is clogged, and the solution can’t be simply to jam more things into it.”
So what is a possible solution? Believe it or not, many activists think it involves rewinding back to the '70s, to the Gerald Ford administration. Osler and organizers like Nkechi Taifa, a senior policy analyst for civil and criminal justice reform at the Open Society Foundations, have proposed the creation of a clemency board similar to the one Ford used to deal with Vietnam draft-dodging cases. That board handled 21,000 clemency petitions in just one year, granting 90 percent of the petitioners some form of clemency, from immediate pardon to two years of alternative national service. Osler, whom I'm profiling for the next print issue of The Prospect, details his proposal here.
The Ford model would make it easier to deal with cases that don’t pull at the heart strings. Pardoning the most sympathetic cases—the girlfriend who took the fall for her boyfriend, the guy who was just the lookout for a drug deal—is politically appealing. But a board structure makes it easier to handle the many, many more cases of people who may have been clearly guilty but still didn’t deserve to spend half of their life in prison. By the same token, Ford’s boards made it easier to give draft-dodgers more just sentences; they considered each application individually, but the sheer number of cases meant that the media and public didn't—couldn't—scrutinize each pardon individually.
The political winds have shifted enough in recent years that clemency for crack offenses would hardly cause a fuss. In one sign of the change, Republican Senator Mike Lee co-sponsored the Smarter Sentencing Act last summer with Democratic Senator Dick Durbin. In addition to reducing mandatory minimum sentences for drug offenders, the measure would allow the thousands in prison for crack crimes under the old 100-to-1 regime to return to court for a new hearing. The bill just passed out of the Senate Judiciary Committee with bipartisan support. The conservative Heritage Foundation has lent support to the cause.
If Obama sets up a Ford-style system for dealing with pardons, it will mean more than extending justice to those who have been serving overly harsh sentences. It could also help redeem a presidential power that for too long has been associated with political favors, and restore its role as a tool for justice.