New York Times Editorial
09 February 2014
The constitutional provision that gives the president virtually unlimited authority to grant clemency was not an afterthought. The founders understood very well that there could be miscarriages of justice even under the rule of law. By allowing the president to commute unjust sentences or pardon deserving petitioners who had served their time, they sought to ensure that the workings of the courts could be tempered with mercy.
Presidents Jefferson, Madison, Monroe, Lincoln, and Truman viewed the clemency process as a central mission of the office. But the concept of mercy went out of fashion by the 1980s, when the country embarked on a mandatory sentencing craze that barred judges from exercising leniency when it was clearly warranted and placed the justice system almost entirely in the hands of prosecutors. As a consequence, even first-time offenders were largely viewed as beyond redemption.
These laws drove up the prison population 10-fold and filled the jails with young, low-level drug offenders who were confined far longer than their offenses warranted. They also created a large and growing class of felons, who are trapped permanently at the margins of society by postprison sanctions — laws that bar them from jobs and housing, strip them of the right to vote and make it difficult for them to obtain essential documents like driver’s licenses.
The perpetual punishment model of justice has had far-reaching consequences. Politicians stayed as far away from clemency as they could, fearing that voters would view them as soft on crime. Meanwhile, at the Justice Department, the clemency process — which had been a cabinet-level responsibility — fell under the authority of prosecutors who seemed to view even reasonable lenience as a threat to the prosecutorial order. The time required to handle clemency applications went from months to years; the backlog grew; the stream of mercy that had once flowed began to dry up.
The clemency system, in other words, is in a state of collapse. The Justice Department admitted as much last month, when the deputy attorney general, James Cole, asked the criminal defense bar to help the department find suitable candidates for clemency among the many thousands of people who were casualties of the mandatory-sentencing era.
Mr. Cole specifically mentioned nonviolent, low-level drug offenders who are serving “life or near-life” sentences that are considered excessive under current law. He was clearly referring to people prosecuted under the abjectly racist 1986 federal law that punished people caught with crack cocaine far more severely than those caught with the powdered form of the drug.
In 2010, Congress reduced, but did not eliminate, the sentencing disparity, and thousands of people sentenced under the original law are still living behind bars. President Obama commuted the sentences of eight of them in December; even so, his has been one of the least merciful administrations in modern history.
The Justice Department’s sudden interest in the clemency problem is good news, but asking defense lawyers for help is a haphazard approach. What’s needed is wholesale reform of the department’s pardon office, which has proved itself ineffective and incompetent, partly because the current process relies on the department to evaluate its own work.
One sound idea is to create a clemency review panel outside the Justice Department, perhaps as a part of the executive office. Mr. Obama could form an advisory board, or reconfigure the pardon office to include defense lawyers, sociologists and other experts who would bring a broader perspective to the issue. The goal would be to give the president unbiased information that would enable him to exercise fully this important aspect of executive power.