Post Date: April 23, 2014
(New York Times Editorial) — Throughout American history, presidents from Abraham Lincoln to Harry Truman to Gerald Ford have used the power of executive clemency to help bring an end to war, or to promote national healing in its aftermath.
On Wednesday, the Justice Department announced what would be the most sweeping reinvigoration of the clemency power in nearly four decades. This time, the purpose is to deal with the aftermath of the war on drugs, whose casualties are the thousands of people sentenced under harsh and outdated laws.
“For our criminal justice system to be effective, it needs to not only be fair; but it also must be perceived as being fair,” Deputy Attorney General James Cole said in a speech introducing the new policy. “These older, stringent punishments that are out of line with sentences imposed under today’s laws erode people’s confidence in our criminal justice system.”
The new standards — developed with the help of a group of criminal defense and nonprofit lawyers that has been dubbed Clemency Project 2014 — cover any federal inmate who has served at least 10 years of a sentence that would be shorter today because the law has changed. The most obvious example are the roughly 8,000 drug offenders who were sentenced before Congress passed the Fair Sentencing Act in 2010, reducing the punishment for crack cocaine offenses.
To be eligible for a commutation, an inmate must also be a low-level, nonviolent offender; must have demonstrated good conduct while in prison; and must have no ties to gangs or other criminal organizations, no “significant criminal history” and no history of violence either before prison or while incarcerated.
Inmates who appear to meet these criteria will get free assistance from experienced volunteer lawyers to fill out a clemency application. To process what is expected to be a flood of applications, the Justice Department will rely on temporary reassignments of current federal prosecutors and defenders; it has also begun soliciting the help of private attorneys.
These are very encouraging signs that the clemency process is at last emerging from its slumber. Most promising of all, however, is the change at the top. The pardon office, which is part of the Justice Department, has been ineffective for years, and its most recent leader, Ronald Rodgers, has been at best incompetent. A report by the department’s inspector general found that, in 2008, Mr. Rodgers withheld material information from the president in recommending denial of a clemency petition. (Mr. Obama granted the petition in December.) Mr. Rodgers is being replaced by Deborah Leff, who runs the department’s Access to Justice Initiative, which works to increase legal representation for people who cannot afford it. By all accounts, Ms. Leff has a deep understanding of the complex and politically sensitive issues at play.
The tone set by the pardon office will be especially important because most of the new criteria are not defined — who is a nonviolent offender? what criminal history counts as significant? That means much will be left to the department’s discretion.
The new policy, however, does not address unjustly long sentences issued under laws that haven’t been changed, such as absurdly long mandatory minimum sentences that prosecutors have used to secure disproportionately harsh punishment for many low-level offenders. While Congress appears to be on the verge of reducing many mandatory minimums, the laws — and the inmates sentenced under them — remain in place. Until those laws are reformed, countless more inmates will be sent away for an unjustly long time.
President Obama understands the deep damage of the war on drugs. With Attorney General Eric Holder Jr., he pushed for greater reductions to crack cocaine sentences. Yet he has had a blind spot when it comes to clemency, granting fewer petitions than any modern president.
In the Federalist Papers, Alexander Hamilton defended the president’s pardon power as an essential counterweight to the “necessary severity” of criminal law. That power is in Mr. Obama’s hands; now he must use it. Read the editorial