WASHINGTON — LAST month, President Obama used his clemency power to reduce the sentences of 46 federal prisoners locked up on drug-related charges. But for the last six years, his administration has worked repeatedly behind the scenes to ensure that tens of thousands of poor people — disproportionately minorities — languish in federal prison on sentences declared by the courts, and even the president himself, to be illegal and unjustifiable.
...There are many people... in America’s federal prisons — people whose sentences are now obviously illegal. Instead of rushing to ensure that all those thousands of men and women illegally imprisoned at taxpayer expense were set free, the Justice Department said that it did not want a rule that allowed... prisoners... to retroactively challenge their now illegal sentences. If the “floodgates” were opened, too many others — mostly poor, mostly black — would have to be released. The Obama administration’s fear of the political ramifications of thousands of poor minority prisoners being released at once around the country, what Justice William J. Brennan Jr. once called “a fear of too much justice,” is the real justification.
...Mr. Obama must take steps to further undo the damage that he has done. He should use his clemency power to release all those currently held in a federal prison on an illegal sentence. And he should appoint a permanent special counsel whose job would be to review new laws and federal court cases on a continuing basis to identify and release other prisoners whose sentences retroactively become clearly unlawful. That the Department of Justice and Bureau of Prisons have never created such a position is an outrage. If we fail to demand change now, this moment for justice may be lost.