<< News Scan | Main | News Scan >>


Criminals-Are-Cool Week at the White House

| 17 Comments
Do criminals owe a debt to society, or is it the other way 'round?  

The Obama Administration's answer is no longer open to serious doubt.  As ABC News reports:

The 46 sentence reductions [Obama granted today] are the most presidential commutations in a single day since at least the administration of President Lyndon Johnson, according to the White House. Overall, Obama has commuted sentences of 89 people, surpassing the combined number of commutations granted by Presidents Ronald Reagan, George H.W. Bush, Bill Clinton and George W. Bush.

They represent a sliver of all those seeking clemency: Justice Department statistics show that roughly 2,100 commutation petitions have been received so far this fiscal year, and about 7,900 are pending.

White House counsel Neil Eggleston predicted the president would issue even more commutations before leaving office, but added that "clemency alone will not fix decades of overly punitive sentencing policies."

The president this week is devoting considerable attention to criminal justice. In addition to his speech Tuesday [to the NAACP Convention] in Philadelphia, he is to become the first sitting president to visit a federal prison when he goes to the El Reno Federal Correctional Institution outside of Oklahoma City on Thursday. He'll meet with both law enforcement officials and inmates.

Some might think that "overly punitive sentencing policies" had something to do with the dramatic drop in crime in the last quarter century, but that goes unmentioned in the story and unseen in the President's outlook.  



17 Comments

I suspect that I part company with most of the people who read this blog. I am not reflexively opposed to these Obama commutations. Of the thousands of federal prisoners, I think it very likely that there are a number of prisoners who got far more than they deserved. I don't know if any of these 40 odd people fall into that category. A DOJ that can go after a guy who got lost snowmobiling or who defended his kids from a grizzly bear is a federal government that can overreach.

That's what clemency is there for.

In addition, and while it probably isn't entirely germane to this discussion, the DOJ has recently become patently politicized. Just recently, a GOP activist was convicted in Virginia for campaign coordination. This from an Administration whose campaign disabled fraud protections so that overseas donations could come in. Or how about the failure to prosecute Jon Corzine, who misappropriated one billion dollars? Or the failure to prosecute Eliot Spitzer on an obvious structuring charge?

No one promises criminals cosmic fairness. But there has to be some sort of benchmark of fairness when it comes to prosecutorial discretion. I don't think it's necessarily specifically enforceable, but I sure as shooting would pardon the campaign coordination guy.

There are without doubt justified cases for clemency, a provision with constitutional grounding and a long and worthy historical pedigree.

My problem here is that Obama certainly seems to be using them simply to reverse an entire swath of law (drug sentencing). In my view, that is usurpation of a legislative function.

If drug sentences as a class are now seen to be unjustified, Congress can act to authorize courts retroactively to reduce them.

P.S. I also think the charge of politicization can be leveled at these commutations. Although they will get some libertarian and drug-legalizer support, they will be most popular with, and are designed to stoke support among, Obama's political base. I think that's an unfortunate if not a dangerous way to use the clemency power.

Consider, for example, what the press would be saying if a Republican President took the view that financial fraud sentencing as a whole was too harsh, then granted class-wide clemency to corrupt bankers and brokers. You'd be able to hear the shrieking on Mars.

Bill, suppose Congress wanted only the "best of the best" crack offenders to get the benefit retroactively of the FSA's reduced crack mandatory minimums and did not want all 8000 such prisoners released as a matter of law. Isn't the best way to make that happen is to tell the Prez to screen this group and release early the best, say, 10% of the group of 8000 through clemency?

The key statistical point is that even if Obama were to grant, say, 1600 clemencies to crack offenders who would have gotten lower sentences under the FSA, this would still be FAR SHORT of anything approaching "class-wide clemency." Data and facts should matter in your criticisms here.

Moreover, given that Congress (1) passed the FSA to reduce all crack sentences, (2) demanded the USSC to further reduce the crack guidelines, and (3) have allowed reduced crack and drug guidelines to go into effect retroactively without a peep of complaint or concern, I view these clemencies as a kind of executive adminstration of the retroactive actions Congress has already vlessed.

Last but not least, I agree 100% that these commutations are "political," which is exactly what the Framers intended the power to be in the hands of the Prez. And, finally, the only class-wide clemency that Republican Prez have granted that I can think of involve corrupt administration official (e.g., Nixon and Scooter Libby).

Long story short, unless and until you have a substantive complaint with specific grants, your criticisms of this Prez and defense of the last one strike me as far more "politically tainted" than the actions you are asailing here.

I think there is something to be said for making a reduction in sentence nonretroactive legislatively and then selectively commuting prior sentences.

Logically, if Congress determines that a legislatively prescribed sentence is too harsh and lowers it, that ought to apply to prior sentences as well. The practical problem is that most sentences result from plea bargains, many (perhaps most) defendants are guilty of more than they plead to, and undoing the deal long after it was struck may result in people who have already gotten off with less than they deserve getting off with still less than that.

Clemency, properly applied with a careful case-by-case examination, is a good solution to this problem. Whether it was properly applied in these cases I don't know as I have not examined them.

"Bill, suppose Congress wanted only the "best of the best" crack offenders to get the benefit retroactively of the FSA's reduced crack mandatory minimums and did not want all 8000 such prisoners released as a matter of law. Isn't the best way to make that happen is to tell the Prez to screen this group and release early the best, say, 10% of the group of 8000 through clemency?"

No, the best way is for Congress to decide explicitly the characteristics it thinks warrant a reduction in sentence, then enact a statute listing them and authorizing judges to grant reductions in such cases.

"Moreover, given that Congress (1) passed the FSA to reduce all crack sentences, (2) demanded the USSC to further reduce the crack guidelines, and (3) have allowed reduced crack and drug guidelines to go into effect retroactively without a peep of complaint or concern, I view these clemencies as a kind of executive adminstration of the retroactive actions Congress has already vlessed."

What you say here proves the opposite point. Congress, having once shown that it can specify the characteristics it wants to see in a drug trafficker who might be a candidate for release, can do so again.

Apparently, you prefer yet more additions to the administrative state, in which Congress sloughs off on administrative agencies (here, the Pardon Office at DOJ or whatever succeeds it) decisions it's too lazy or preoccupied to make.

I doubt your new libertarian friends -- the Koch brothers, Mike Lee, Rand Paul, etc. -- would approve.

One other thought for the moment.

Isn't the real reason you want this left to the President (in a way exempt from the judicial review and legislative input you view as so important in other contexts) simply that you expect (and hope) Obama will grant commutations in hundreds of cases that Congress would never approve for a retroactive reduction?

Isn't that at the heart of it?

Personally I think Kent nails it. In CA we have far too much expensive and unneeded litigation over the question of deserving offenders. Whether it be dangerousness findings in Prop 36 or 47 or new sentencing hearings under 1170(d)(2) for juveniles serving LWOP, the new rules set the eligiblilty quite broadly creating massive litigation to capture a few target rehabilitated offenders. Because many ineligibility factors set in the new rules were plea bargained away in the initial case, the pool is larger than it should be.

Opening up thousands of settled judgments so judges can apply their
"modern" notions of justice is a recipe for wholesale sentence reductions for a larger group than is truly deserving. Victims have moved on and families are hard to herd back into court to remind the judge why the defendant was sentenced "so harshly" in the first instance. At least with clemency there is direct accountability so it will move toward only the truly deserving offender. Going by way of judges and litigation, even with strict eligibility criteria, invites diffuse responsibily, further plea bargaining for the undeserving, and outright ripping open old wounds and settled judgments hoping to capture the gem of true rehabilitation.

Finally, legislatures don't want any accountability so they will always punt the hard questions to the courts, which means more and expensive litigation. I say targeted clemency even with the political component is the way to go. I have already wasted too much time as a DDA fighting over settled judgments rather than working on current cases where guilt has yet to be determined.

Bill, I agree 100% that it is better for Congress to do remediation expressly after enacting sentencing changes (or to clearly indicate their express desire to keep past offenders subject to repealed sentences). But in the FSA they ended up sending a very mixed --- and I think peculiar and perhaps unconstitutional --- message as to retroactivity.

What Congress passed in the FSA meant that ALL of the WORST crack offenders (those subject to to 100-1 guideline rules above the floors set by the MMs) got the full benefit (via the USSC) of new lower congressional-ordered sentences whereas the NONE of the least-worst crack offenders (those subject to MM floors) got any benefit from the FSA. I have argued --- mostly unsuccessfully in the courts --- that this decision was neither fully intended by Congress nor clearly constitutionally permissible. In light of that history and the absense of a clear congressional statement --- as well as the points made by Kent and David --- I think what Obama is doing with clemency now for the least-worst crack offenders is pitch perfect and in full harmony with the Framers' vision of the clemency perogative.

I continue to advocate for reforms like the SSA and the SAFE Act and other needed congressional reforms because, like you(?), I think much broader relief is needed that any President is likely ever to be able to provide. And especially when establishment GOP folks like Rep Sensenbrenner and even Senator Grassley are now talking up their own sentencing reform visions, I remain hopeful (as I predicted on Election Night 2014) that a GOP controlled Congress will finally have the courage to deliver significant and long-needed reforms.

But, for lots of good reasons, the Framers gave the Prez unregulated clemency powers because they intended federal legislative reform to be slow and challenging. And, rather than criticize this Prez for finally living up to his constitutional obligations, I wish you would have help him and past Prez idenitfy more folks than just Scooter Libby whom you think do not need, despite a serious federal felony conviction, to spend any time in the graybar hotel.

Finally, if it is so obvious what the Prez is doing is so bad, why have we not yet heard a peep of criticism from the 15+ GOP leaders eager to get his job? As we know, politics is the ultimate check on the federal clemency power, but lots of folks who run to the media to complain about nearly everything Obama does have been notably quiet in any criticisms of is on-going criminal justice reform efforts.

"Bill, I agree 100% that it is better for Congress to do remediation expressly after enacting sentencing changes (or to clearly indicate their express desire to keep past offenders subject to repealed sentences). But in the FSA they ended up sending a very mixed --- and I think peculiar and perhaps unconstitutional --- message as to retroactivity."

Then they can fix it. Same answer to your second paragraph. The parameters of sentencing are for Congress to decide. It will be especially easy for them to do so with sentencing "reform" measures now (apparently) to come up. The ball is already teed-up.

"[E]specially when establishment GOP folks like Rep Sensenbrenner and even Senator Grassley are now talking up their own sentencing reform visions, I remain hopeful (as I predicted on Election Night 2014) that a GOP controlled Congress will finally have the courage to deliver significant and long-needed reforms."

And here we go again. It's never that the opposition has reasonable disagreements; it's that they lack "courage." That sounds like something I'd get from Gritsforbreakfast.

And could you go over once more why we "need" reforms when the present system has contributed to the lowest crime rate in more than 50 years? And at a level of spending that is dwarfed by entitlement programs?

"But, for lots of good reasons, the Framers gave the Prez unregulated clemency powers because they intended federal legislative reform to be slow and challenging."

I'm not aware of any documentation for the idea that the Framers had a single thought about "legislative sentencing reform" when they created the clemency power. The sources I'm aware of say it was created as an analog to the British sovereign's power to grant clemency in individual cases of manifest injustice.

"Finally, if it is so obvious what the Prez is doing is so bad, why have we not yet heard a peep of criticism from the 15+ GOP leaders eager to get his job?"

Because you can only get one or two messages out, and all the candidates have bigger fish to fry. These would include talking to the public about a snowballing national debt, declining real wages, the lowest workforce participation in decades, the most tepid economic recovery since WWII, etc.

In addition to the overriding economic themes dominating the campaign, candidates cannot get criminal law issues to resonate in an era of low crime. The electorate worries about what's going wrong, not what's going right.

Indeed, it's precisely today's complacency about crime that's the petri dish for the we-can-afford-to-go-back-to-being-soft thinking that lies behind sentencing "reform." And yes, this is true of both parties.

"At least with clemency there is direct accountability so it will move toward only the truly deserving offender."

Actually, when the executive granting the clemency will never face the electorate again, there is no operational accountability whatever. See, e.g., Clinton's midnight pardons.

But for however that may be, isn't the more important purpose to prevent poorly justified clemency, rather than be able to pinpoint the source of granting it after the damage is done?

Bill, I agree with much of what you say. Obama generally impugns many actors in the criminal justice system (funny how Doug has little to say about that). But to me, that's a separate issue from the clemencies.

In any event, I think that tweaks to the federal criminal justice system are justified (both upward and downward). Just because something is successful, doesn't mean that revisions (as data comes in) isn't something to look at.

In any event, the real issue, and Barack Obama appears to be ignorant of it, is the disconnect between his rhetoric about the criminal justice system and the miniscule number of clemencies he is giving. It is within the Administration's power to address far more criminals' situations than he has, and his acquiescence means that there's a chasm between his rhetoric and his actions.

The Times, in one of its articles, raised the specter of Willie Horton, but Horton isn't really apt. No sane person thought that Horton should have been given furloughs, and Dukakis imperiously ignored the pleas of victims' families. There is substantial room for debate about whether some of these criminals deserved life imprisonment or 40 year sentences. Either Obama has the courage of his rhetoric or he does not, and it's high time he was called out on it.

Fair point, however I would note that there is some accountability to the political party and when compared to virtually no accountability for the judiciary (Rose Bird et al. were unique exceptions) I prefer some accountability to none. Additionally political party accountability may at least deter more questionable pardons lest the party suffer the same fate as Rose Bird.

Plus, and I know this sounds crass, but ill advised commutations are a gift that keeps on giving to the opposite party even when given by an executive who will never face the electorate again. It takes a very special executive willing to damage their own party so gratuitously. George Ryan of Illinois was one. I am afraid that Jerry Brown (although not a criminal) may be another.

One would hope there would be party accountability, but I am not aware of any empirical evidence that there is. For example, I have not seen any study showing that the Democrats lost any votes in federal elections after Clinton's January 19, 2001 midnight pardons, which were by any standard the most notorious in recent history.

If you know of such a study, I would be grateful if you could give the link.

I once drafted an amendment to the California Constitution that said the governor could only issues reprieves, not pardons or commutations, during the "lame duck" period from election to the end of the term. That seems to be when the worst abuses occur.

The amendment was killed in committee. One argument against it was that although misuse of the pardon power had occurred recently at the federal level, it hadn't occurred in California. Our neighbor's horse has been stolen, but ours hasn't; therefore we should not lock our barn door.

That was before the Nunez fiasco.

Hey Bill, I just noticed that a letter from House GOP to AG Lynch seems to echo, almost word-for-word, some of the concerns you expressed above about the Obama pardons. Did you have a hand in the drafting of that letter?

Doug,

Honestly, I wish you would give me more credit. I didn't merely "have a hand" in it, I dictated it word-for-word to Chairman Goodlatte, whom I forced to apologize for being too slow. I then sent him out to buy me lunch. And then dinner.

Ummmmmmmmmm.............well................

As I think you know, I never say who I talk to in this town, or who talks to me. I am, ya know, a lawyer.

However, just for you, I'll make an exception this once. I answered some public questions at a House hearing that Chairman Goodlatte asked me a year ago. Unfortunately, I have never met him personally, I deficiency I hope to remedy.

P.S. There is a rumor, however, this blog is read by people who work on the Hill and various other places around town.

Leave a comment

Monthly Archives