On the last day of March (thus shrewdly avoiding April Fools Day), President Obama granted 22 clemencies, the great majority to cases involving hard drugs. I blogged about it here.
I did not put forth a comprehensive theory of the standards for executive clemency, and it's probably imprudent to attempt such an ambitious enterprise on a blog. Nonetheless, and with all the modesty due from someone who involved himself more in putting criminals in prison rather than taking them out, I'll attempt at least a brief sketch.
Clemency should be reserved, as historically it has been in almost all instances, for exceptional individual cases of clear injustice.* The clemency authority was never designed to allow the executive branch to displace Congress as the country's law-maker. If there is truly a consensus in the nation that drug sentences should be, not merely lowered, but lowered retroactively -- as White House Counsel's statement implied -- then Congress can act. If, on the other hand, there is no such consensus, the President should not assume otherwise. Still less should he take upon himself the re-writing, for any practical purpose, of an entire class of sentencing statutes.
Thus, the fact that Congress and the Sentencing Commission have lowered some drug sentences in recent years does not justify the President in lowering them further. Indeed, it argues for the opposite approach: When normal legislative and judicial functioning is doing the job allegedly intended by the new "national consensus," there is no warrant for the President to use an extraordinary and unilateral power to short-circuit the process.
It's not like existing federal law is silent on the question. The Savings Statute, 1 U.S.C. 109, provides:
The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability. The expiration of a temporary statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the temporary statute shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.
Thus, the fact that Congress and the Sentencing Commission have lowered some drug sentences in recent years does not justify the President in lowering them further. Indeed, it argues for the opposite approach: When normal legislative and judicial functioning is doing the job allegedly intended by the new "national consensus," there is no warrant for the President to use an extraordinary and unilateral power to short-circuit the process.
We saw in the aftermath of the Clinton midnight pardons the country's justified reaction when the clemency process is abused. But for as bad as the Clinton actions were, they did less damage to the rule of law (because they were less numerous) than the wholesale revision of Congress's judgment apparently being contemplated by a handful of anonymous lawyers in White House Counsel's Office.
In fact, there is no national consensus that drug sentences, and especially the sentences for hard drugs like methamphetamine and heroin, should be dumbed-down. But if there were, the right and the power to undertake such a wholesale revision of law rests with Congress. It does not rest with a return of the Imperial Presidency, whose sole "virtue" will be that it will go over better with the press than Nixon's did.
In fact, there is no national consensus that drug sentences, and especially the sentences for hard drugs like methamphetamine and heroin, should be dumbed-down. But if there were, the right and the power to undertake such a wholesale revision of law rests with Congress. It does not rest with a return of the Imperial Presidency, whose sole "virtue" will be that it will go over better with the press than Nixon's did.
*UPDATE: I am informed by a scholar who would know better than I that it is incorrect to say that the historical pattern for clemencies focuses on "cases of clear injustice," at least as most people would understand that phrase.
What most people probably would think it means is "innocent people who got wrongly convicted." That is not, however, what most clemencies are about. Instead, most have been for relatively minor offenses many years before, where the defendant has since lived a law-abiding life, and may be up in years or very sick. There may be an "injustice" lurking there, but more in the sense that it would dis-serve justice to allow such a person's record to continue to show a federal conviction.
Of course, there are from time to time clemencies for those who have simply been wrongly convicted, but those are rare (because erroneous federal convictions that are not corrected in the judicial branch are rare).
I apologize for putting this in a way that was confused and incorrect.
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