Commentary: Obama’s Pardons Only Illustrate Poor Record on Reform

When President Barack Obama was elected to office, those advocating for sentencing reform were hopeful that the election of an African-American President with a background in civil liberties would mean sweeping reform in the area of sentencing and, while the Obama Administration has made some headway in that area, it has largely been a disappointment.

As the ACLU noted in a release last week, “Prior to today’s announcement, Obama had only pardoned 39 people and commuted only one sentence, which is the fewest by any president in recent history.”

But the announcement that President Obama had “commuted the sentences of eight people convicted of crack-cocaine offenses – all of whom have served at least 15 years – and used his pardon power to erase the criminal records of 13 miscellaneous ex-offenders,” only punctuates his lack of record in terms of using the Presidential power to right injustices.

As Walter Olson of Bloomberg News notes, if the administration’s motivation here is to help eliminate overcrowding in federal prisons, “Obama is trying to bail out Lake Michigan with a paint can.”

The numbers are staggering, “The federal prison population has increased by more than 700 percent since 1980 and the number of inmates now exceeds the Bureau of Prisons bed capacity by 35 percent to 40 percent, requiring the use of contract prisons, halfway houses and other makeshifts.”

Mr. Olson writes, “Even if the president could free another batch of eight prisoners every week for a year, his mercy will still have touched only about one-fifth of 1 percent of the inmates in federal prisons. The 2 million serving time at the state level will need to look to their governors for relief.”

“The War on Drugs is the single biggest driver of our bloated prison population, especially at the federal level, where thousands are serving sentences under mandatory-minimum laws that put low-level nonviolent offenders behind bars for decades, or even life,” he writes. “Although Congress finally acted in 2010 to reduce the notorious crack/cocaine disparity responsible for many insanely long sentences – in part because of years of complaint from judges loath to be parties to injustice – it declined to apply the changes retroactively to sentences already handed down.”

Mr. Olson adds, “Continuing to hold prisoners such as Clarence Aaron of Mobile, Ala., one of those on Obama’s list, would be unjust even if prison spaces were available.”

Mr. Aaron was sentenced to three life sentences without parole for his role on the periphery of a drug deal when he was a college student. Mr. Olson notes, “A model inmate, Aaron saw the fight for his freedom taken up by journalists, lawyers and others for more than a decade. Millions of words were expended and thousands of calls made on his behalf.”

As conservative columnist Debra Saunders wrote on Sunday, “Aaron’s story represents the worst excesses of the federal criminal justice system. Aaron, of Mobile, Ala., had no criminal record. He had held jobs. In 1992, he was a college student who decided to address his money problems by acting as an intermediary between two career drug dealers. The dealers paid him $1,500 to set up two large cocaine deals. They got caught. The ringleaders knew how to game the system. They pleaded guilty and testified against Aaron.”

She continues, “Aaron wasn’t as savvy. He pleaded not guilty and lied on the stand — which enhanced his sentence. The buyer planned on converting powder cocaine to crack — that, too, enhanced Aaron’s sentence.”

Ms. Saunders continues, “Aaron knows he broke the law. He had earned prison time. But what does it say when federal prosecutors seek and win life without parole for a first-time offender while letting the big fish finagle lesser sentences? All but one of Aaron’s cohorts have been out of prison since 2000.”

She recounts her attempts to lobby President George W. Bush in 2001 to commute Mr. Aaron’s sentence.  She notes, “Bush asked his pardon attorney to reconsider the petition, but the official misled him, failing to inform him that the judge and the U.S. attorney had come to support Aaron’s petition, so the president said no.”

When President Obama was elected, “Aaron’s family was convinced that America’s first black president would free Aaron, who is African-American. In the first term, their hopes were dashed. Until Thursday, Obama had commuted only one sentence, that of crack-cocaine offender Eugenia Jennings, in 2011; Jennings died of leukemia in October.

“Today, I am commuting the prison terms of eight men and women who were sentenced under an unfair system” that has been reformed now for three years under the Fair Sentencing Act, President Obama said in a statement. “Each of them has served more than 15 years in prison. In several cases, the sentencing judges expressed frustration that the law at the time did not allow them to issue punishments that more appropriately fit the crime.”

“Because of a disparity in the law that is now recognized as unjust,” President Obama said last week, “they remain in prison, separated from their families and their communities, at a cost of millions of taxpayer dollars each year.”

But the Washington Post in a Christmas Eve Editorial this week called it “Insufficient mercy.”

While the President commuted a few sentences, the Post writes, “Congress and the president agree that the old rules were unwise, yet many others sitting in prison deserve a chance to show that their sentences did not fit their crimes. The fairest and most comprehensive way to give them that chance would come from Congress, which could impose a broad solution and enlist federal judges to apply it. “

They write, “The president has the unrestricted authority to grant clemency to federal convicts. Thousands of people were sentenced under an unjust system the president has condemned. Why should he stop with granting clemency to only eight of them? If it makes sense for lawmakers to establish a new pathway for relief, it makes sense for the executive branch to apply the same logic with the powers and resources it already has.”

They note, “A couple of decades ago, when urban crime was a raging issue, letting even eight crack offenders out of prison would have been politically treacherous. It is a sign of how much attitudes have changed — for the saner — that a budding criminal justice reform effort has not been met with popular concern or even much notice. Politicians should embrace the opportunity to rebalance, in a measured way, how the country punishes criminals. Mr. Obama’s latest move is welcome. We hope it is not his last.”

The New York Times was more biting, arguing, “It is important to recognize that while Mr. Obama showed mercy to these eight people, his administration has been the least merciful in modern times. The power to mitigate an overly harsh sentence is squarely in his hands, and yet in nearly five years he has commuted just nine sentences and issued 52 pardons.”

They write, “There is no excuse for this lack of compassion. The risk to public safety is often used to justify denials of clemency, but a preliminary report issued in July by the United States Sentencing Commission found that the recidivism rates for the more than 7,300 prisoners who received sentence reductions under the Fair Sentencing Act were similar to those for inmates who served full sentences.”

They conclude, “Mr. Obama did not create the broken criminal justice system, but he can do much more to lessen its impact on those who have been most unfairly punished by it.”

There are widespread political differences in this nation over the policies of Barack Obama, but in areas like this, with firm consensus on the side of reform, we feel that the President needs to be judged most harshly.

—David M. Greenwald reporting

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