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The Racial Politics of Clemency

The Obama Administration's Department of Justice is going all-out in its drive for clemency for a large segment of federal inmates convicted of drug offenses. It's also making a big display of it, with a prominent rollout this week.

Why?  And why now?

This is the depressing answer:  Politics, and specifically the politics of the mid-term elections, in which control of the Senate is widely thought to be at stake.

That answer probably seems counter-intuitive. The conventional wisdom is that Presidential clemency is a political loser.  It got a bad name with Clinton's midnight pardons on the way out the door, and hasn't really recovered. Polling confirms what common sense and experience tell us:  The public overwhelmingly thinks that the problem in the criminal justice system is not that we have too many prisoners serving sentences that are too long, but that too many criminals are released too early. This is why Presidential pardons have so often been given at Christmastime, which provides the cover of compassion in addition to being conveniently the month after the election.

So what's the difference this time?
There are two differences.  First, the present Department of Justice is politicized to an extent rarely if ever seen in past administrations.  Second, and the one most pertinent for present purposes, is the specific nature of the President's political needs.

No neutral observer expects the Democrats to win this November.  The realistic question is how badly they're going to lose and, specifically, whether they can contain their Senate losses to five or fewer, thus to maintain control.  Right now, this is a toss-up.

As the politically shrewd and Democrat-friendly Washington Post has observed, the key could well be black turnout.  Blacks are by far the most loyal of the Democrats' voting base, and the Democrats are already turning to issues that excite the base, like the minimum wage and income inequality.

But one issue has particular resonance in the racial politics of the Democratic Party, and that is racial disparity in the criminal justice system.  Nowhere is this disparity more of a sore point than in federal sentences for drug abuse and, in particular, the difference in sentences for crack and powder cocaine.  Powder cocaine is predominantly used by whites, and has lower sentences.  Crack is overwhelmingly used by blacks, and has higher ones.  

Although Congress lessened the difference four years ago in the Fair Sentencing Act (FSA), crack cocaine offenses are still more harshly sentenced than those involving powder. And the benefits  --  to criminals  -- of the new, more lenient sentences for crack are not retroactive, as the en banc Sixth Circuit held in its powerful opinion in the Blewett case late last year.

It makes no difference that even liberal observers like the Post understand that the difference in treatment is warranted; as the Post wrote when it celebrated passage of the FSA, "...crack has a slightly more powerful and immediate addictive effect and more quickly devastates the user physically than does powder cocaine.  [In addition, there are] higher levels of violent crime associated with crack."  The disparity in treatment per se, no matter its justification, is enough to provoke fury in Obama's base.  Not for nothing did Eric Holder make a point of his go-soft-on-drugs "Smarter Sentencing Initiative" when he fawned before Al Sharpton's National Action Network two weeks ago.

It is likewise not for nothing that Deputy Attorney General James Cole made it unmistakable that the upcoming mass clemency  --  possibly for thousands of drug dealers  --  is designed primarily to give full retroactive effect to the FSA.  Indeed, the first four paragraphs of his remarks yesterday make it abundantly clear.

It is true, as Mr. Cole said later in his talk, that the clemency will also benefit others. It will benefit, for example, the heroin dealers who have, of late, been causing damage of crisis proportions, as Mr. Cole's boss admitted last month in a moment of candor the Department seems to have forgotten.

That, according to DOJ's own statistics, drug pushers are overwhelmingly likely to become repeat offenders after their release is of no moment.  Likewise of no moment is the fact that drug dealing is one of the most socially destructive enterprises going on in America today, and nowhere more destructive than in the inner cities.

The point is not that releasing drug dealers will result in more crime. The point is that Al Sharpton and his cohorts can turn out the vote.  And that, sad and appalling as it is, is how, in the present day and time, the Constitution's provision for Presidential clemency is being used.


I think you are on to something. As you pointed out in an earlier post, the effect of emptying out the federal prisons on the budget would amount to rounding error. So it isn't about money, although "smart on crime" advocates claim it is. In every speech on this subject Holder has talked about racial disparity, as if locking up black crack dealers is evidence of discrimination. One wonders if responsible black parents, trying to give their children a better life, will support a president who is releasing the dealers back into their neighborhoods.

Purely political is right.

Obama is making a calculated gamble. The short-term politics is perfect. The Dems running for re-election will all support it and hope, as Obama does, that it inspires the minority vote.

It is a long-term loser. At some point after the election we will begin to hear about different released hooligans who raped and murdered a 70 year old woman, got drunk and ran over a kid on a bike, etc. However, Obama is not up for election again and the Dems in Congress will rely on their comments going down the memory hole because of our American Idol memory span and a supine media not calling them on it. They never had to record a vote on the issue, so they hope it will not hurt them politically long-term.

Shouldn't we wait and see what actually comes from this?

I agree that Holder's rhetoric has been absolutely appalling on this issue, and that Holder is a disgrace. And Obama isn't any better. And so these guys aren't to be trusted.

But if there are people in federal prisons for whom there is very little penological justification for keeping them there, I don't know that it's wrong to take a second look.

Just out of curiosity, what are people's view on the Clarence Aaron clemency?

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