New clemency program for drug offenders arrives in an election year

The Obama administration has unveiled a plan to enable certain felons who have been imprisoned for at least ten years to obtain clemency. As I understand the plan, which would apply only to federal prisoners, a prisoner will be eligible for clemency if he or she (1) has no history of violence, (2) has no ties to criminal organizations or gangs, (3) has a clean prison record, (4) has already served 10 years or more of his sentence and (5) would likely have received a substantially shorter offense if convicted of the same offense today.

The fifth criterion is the key to understanding the stated rationale for this initiative (Bill Otis helps us understand the political rationale, which presumably is paramount in an election year). As Deputy Attorney General James Cole explained:

These defendants were properly held accountable for their criminal conduct. However, some of them, simply because of the operation of sentencing laws on the books at the time, received substantial sentences that are disproportionate to what they would receive today.

One can certainly sympathize with prisoners whose sentences were harsher than they would be today, now that Congress has passed the so-called Fair Sentencing Act (FSA). And this is especially true of those who have already served long sentences, have caused no problems while incarcerated, aren’t violent, etc.

But Congress did not provide that the FSA, with its more lenient sentences for crack cocaine offenses, shall apply to those previously sentenced, or affect prior sentences in any way. Thus, the FSA has correctly been held not be retroactive.

In effect, the Obama administration, in the name of changes legislated by the FSA, is imposing a retroactivity mechanism that Congress could have included in the FSA but chose not to. This looks like another usurpation of power by this president, just in time to help Democrats in a trying election year.

Jeff Sessions spells out the problem:

While the pardon power has been interpreted broadly, the Framers never intended for it to be used in this manner. Rather, they intended for it to be used on a limited, case-by-case basis to correct injustice, not to be a tool for the Administration to rewrite or even eliminate laws passed by Congress.

We expect a president to exercise his powers with good judgment in accordance with our constitutional traditions and provisions, including the fact that Congress is vested with the power to establish sentencing laws. If this latest unilateral action becomes the norm, then what kind of Pandora’s box has the president opened? Can a president pardon all people convicted of financial fraud, or identify theft, or unlawful reentry into the country, or any category of crime when Congress does not act as the executive wishes?

President Obama’s answer would, I think, be affirmative, though in practice he will only pardon those in a category he finds it politically useful to pardon.