The implication of Obama’s latest clemency fest

Whenever Senator Mike Lee, or some other Leniency for Drug Dealers stalwart, defends his sentencing reform legislation, he points to the case of one or two drug felons who received a sentence that seems unduly harsh. Such cases aren’t impossible to find.

But invoking them raises an obvious question and then a more subtle one. The obvious question is: if this sentence is egregious, why hasn’t President Obama commuted it? The more subtle question is: does this poor fellow languish in prison because supporters of sentencing reform want to use him as a talking point?

These questions come to the fore in light of Obama’s latest round of commutations. Washington Post reporter Sari Horwitz cheerleads:

President Obama commuted the sentences of 95 drug offenders Friday, more than double the number he granted this summer, in an effort to give relief to drug offenders who were harshly sentenced in the nation’s war on drugs. [Query: has Horwitz studied each case and concluded that the sentence was harsh given the facts; if so what was the basis for her conclusions]

It is the third time this year that the president has used his unique clemency power to release federal drug offenders, whose harsh sentences have contributed to the phenomenon of mass incarceration.

Given Obama’s liberal use of clemency for drug offenders, there would seem to be no reason to legislate for the potential release of additional ones, as the Sentencing Reform and Corrections Act of 2015 does. Bill Otis puts it this way:

What today’s boatload of commutations shows, undeniably in my view, is that if legally imposed sentences are excessive, they can readily be remedied without legislation. The real danger our country faces for at least the next 13 months is not that leniency will go wanting while “deserving” drug dealers (do you love that phrase?) suffer; it’s that it will be overused to reward the President’s buddies. See, e.g., the night of January 19, 2001.

Given recidivism rates, it seems like only a matter of time until one or more the hundreds of drug offenders whose sentence Obama has commuted sells an overdose batch to a high school addict or engages in a turf war shoot-out in which an innocent bystander gets killed. And it’s virtually inevitable that one or more of the thousands of drug felons who would be released under the sentencing reform legislation does so, a possibility that even Dick Durbin acknowledges.

Why, from a moral standpoint, should Republicans be a party to the evils that recidivism entails? Why, from a political standpoint, should they share with Democrats the very real risk of backlash? What, as Bill Otis asks, will be the response if a trafficker released under legislation a Republican voted for shows up in that Republican’s state and kills someone during the period during which, but for the legislation, he would still have been in prison?

These questions are difficult enough to answer in the abstract. In a world in which the president is liberally releasing drug felons in the absence of “reform” legislation, they seem impossible satisfactorily to answer.

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