...Federal prisons are full of human beings who need the president to exercise common sense and humanity, not his powers of legal scrutiny. The president is imprisoner in chief, a special role akin to commander in chief. Clemency is attached to his executive authority over federal police powers and the prison system. Obama is supposed to consider everything — race, morality, fairness, social harmony, geography, orphaned children, society, politics — when making clemency decisions. Running clemency, as Obama does, as another rinse in the legal laundry cycle is an abrogation of his constitutional responsibility.
So how could Obama better dispense mercy, as Hamilton intended? Instead of tweaking clemency, he should make big changes.
First, he could transfer clemency reviews out of the Justice Department and put them in the Department of Health and Human Services. Tell HHS’s public health specialists to make recommendations based on Hamilton’s constitutional criteria: “humanity and good policy.” Use the department that specializes in individual and social well-being to restore Hamilton’s vision of clemency’s extra-legal nature. The Justice Department’s role should be limited to comments, the same as other stakeholders. The department that prosecuted a case and advocated for a sentence is not the appropriate one to conduct a neutral clemency review.
Next, Obama should grant clemency to broad categories of prisoners, rather than slogging through specific cases. The prison population is too big for justice to advance one case at a time. There’s precedent for doing it this way. Jimmy Carter did not name each Vietnam draft-dodger when he granted amnesty in 1977, wiping out tens of thousands of criminal convictions. Obama could declare: No marijuana sentence shall be longer than 10 years; crack cocaine sentences shall be equal to those for powder cocaine; all nonviolent federal drug sentences shall be reduced by 20 percent. He doesn’t have to wait for Congress to curb prison spending, give reprieves to people still serving racially biased crack sentences or accomplish most of his other criminal justice goals.
Obama should set a numerical target for commutations, and a big one. Don’t just accept whatever the lawyer machine extrudes. Give staff a goal, say 1 percent of sentences — about 2,000 people annually. That may seem like a startlingly large number to those with no concept of how the federal prison population has soared. In truth, it’s modest. If Obama commuted 2,000 sentences this year and next year to time already served, he would still leave office with more federal prisoners than when he entered the White House. Even better, the president should set a goal for the maximum number of federal inmates by the time he leaves — say, 200,000 — and tell staff to get him the best cases to hit the target. Managing the prison population is a proper executive decision. Only in government do results seem secondary to process.
Clemency can be a prison management tool, too. The Bureau of Prisons should have each warden recommend deserving inmates. Four recommendations per warden would equal about 500 clemency candidates per year. Prisoner behavior would improve immediately and dramatically with this powerful incentive to win freedom. Congress foolishly abolished parole for federal crimes in 1984, but prisoners need inducements to change. Let the clemency competition begin!
Finally, Obama should open the process beyond the narrow confines of the Office of the Pardon Attorney. Ask judges, governors, members of Congress and others for recommendations, and formalize a broad review process. Some judges have already written to the president, asking that he grant clemency to defendants whom they were forced to sentence to shamefully long mandatory terms. Now, these letters gather dust in Justice Department clemency files. Why not ask each federal court district to recommend one clemency case a year? Tell lawmakers to do the same, and make them responsible for vetting their candidates. Challenge each U.S. attorney to comb his or her files for one deserving case per year. Ditto the NAACP and other outside advocacy groups. Crowdsource the review process, instead of keeping it in the bureaucracy’s lockbox...
“Humanity and good policy” is not a legal concept. But it is why George Washington pardoned Whiskey Rebellion participants. It is why Franklin Roosevelt gave clemency to people convicted of alcohol offenses during Prohibition and why John Kennedy commuted the mandatory minimum sentences of many drug offenders. It is why various presidents gave pirates, bank robbers, polygamists and others second chances.