The National Association of Assistant United States Attorneys has issued a press release questioning the President's mass clemency, and asking for disclosure of more information about its recipients. NAAUSA notes:
On Friday, December 18, President Obama, working in conjunction with the Justice Department, ordered the early release of another 91 convicted drug traffickers from fully lawful sentences their criminal behavior had earned. This brings to approximately 150 the number of traffickers given early release through executive clemency in just the last 14 months.When it announced the clemency project, the Administration committed to granting clemency only if six specific criteria were met, including that the defendant was a non-violent, low-level offender, did not have a significant criminal history, and had no history of violence. Sadly, that has not been the case.In fact, many of the drug traffickers being released had armed themselves (one with 40 firearms); many were leaders or supervisors in their crimes (one was the lead defendant in a 69 day trial); many had multiple prior felony convictions (one had 8 prior felony drug trafficking convictions); and the vast majority were involved in conspiracies to distribute large quantities of dangerous drugs, often hundreds of thousands of dollars' worth of methamphetamine or cocaine.Significantly, these clemency releases are in addition to the 46,000 drug traffickers who are being released through retroactive softer sentences the White House and the Justice Department sought from the U. S. Sentencing Commission. As has been widely reported, 6,000 to 8,000 of these convicted drug traffickers were released early last month, and another 8,500 will be released in the next ten months.No one is claiming these released traffickers are innocent, nor that the drugs they trafficked are harmless. No one is claiming that some -- probably most -- won't do it again. In fact, this class of drug offenders deals in potentially lethal drugs and has a high rate of recidivism (up to 77% according to a study by the Bureau of Justice Statistics). And no one can provide certainty that addicts - the young, the old, the weak and the vulnerable - will not die as a result of these releases.
For full disclosure purposes, I should add that I was consulted about this statement before its release and was happy to add my thoughts, some of which it reflects. I am not a member of NAAUSA, although I was at one time. The organization consists of 1200 to 1300 career federal prosecutors. These are not political appointees; they are civil service. Thus they are Republican, Democrat and Independent; conservative, liberal and moderate; and they hail from all parts of the country.
I should add that, to my knowledge, not a single member of NAAUSA doubts the President's constitutional authority to grant clemency. Not a single member thinks that clemency, properly and cautiously administered, is never due. Not a single member fails to understand the reasons the Framers wrote a clemency power into our founding law.
Although I do not speak for NAAUSA, I think I'm within bounds in saying that, with all that understood, the majority of AUSA's believe that the great bulk of federal judicial outcomes are reliable and fair. This has evidently also been the opinion of the last four Presidents, Republican and Democrat, who in toto issued fewer clemencies than President Obama has (with more than a year in his term left to go).
There is no problem with clemency in exceptional cases, individually considered. There is plenty of problem with executive usurpation, in which the President effectively takes chunks out of federal statutes he disfavors. The remedy available to a President who dislikes legislation is to veto it. But there is no such thing as a continuing veto. Once a statute is signed, or passed by Congress over a veto, the President's likes or dislikes can take a seat. The Constitutional requirement then is that he take care to see that the law be faithfully executed. There is no exception to this requirement because the President's interest groups would like to see one, or because they favor the interests of criminals over those of past, present and future victims.
P.S. I probably should not close without tipping my hat to the career attorneys who put out this statement, risking the ire (and retaliation?) of their political superiors. In a different world, they would be hailed as whistle blowers on a reckless and -- given recidivism rates -- hazardous move by President Obama. In the world we have, however, they'll be excoriated as Nazis. Not that that would be new.
Could you put a rough number, Bill, on how many "exceptional cases" possibly meritting clemency you think there might be in the federal criminal justice system each year? I care about numbers here because even if you think that that great bulk of outcomes are reliable and fair --- say even 99.5% -- that would still mean there are many dozens of problematic outcomes every year in a federal system that adjudicates roughly 100,000 criminal cases each year.
You have repeated questioned the term mass incarceration when less than 1% of our population is incarcerated. Why then do you then turn around and use the term mass clemency when Obama has now granted clemency to, roughly speaking, less than .02% of those subject to severe federal sentences over the last 20 years?
You inconsistency here Bill is telling, though perhaps you can clear this up for me a bit with some more numerical specifics.
I use "mass clemency" because I am comparing the number of Obama's clemencies to the number granted by his immediate predecessors (something my opponents do routinely). He has now granted more than all the last four combined, and is far from finished.
I question the term "mass incarceration" because I am comparing the number of persons incarcerated to the number in the general population. It turns out to be, as you note, a fraction of one percent. Since when is a fraction of one percent "mass"?
P.S. Sentencing reformers use language to exaggerate imprisonment for exactly the same reason that, as Kent has noted, they use it to minimize the murder spike in 2015: to mislead by employing characterizations while sweeping actual numbers behind the curtain.
If "mass" is a proper term in light of historic trends, we do have mass incarceration now as the US prison rate is 5 times the historic US average (and higher than any time in US history). Moreover, as those versed in clemency history should know well, Obama clemency efforts are still tiny --- both in total numbers AND in percentage terms --- compared to Prohibition era Prez like Coolidge and Hoover when federal criminal prosecutions were being used to deal with illegal alcohol as they are now used to deal with illegal drugs.
You and your NAAUSA friends are free to criticize what Prez Obama has done to date, but to call it "mass" is to give that term a distorted meaning. But I guess misleading characterizations are not so bad as long as done in service to an acceptable political agenda.
Sorry, I decline to bite. For years your side has been flinging around "mass incarceration," a phrase that could easily lead a layman to think we have 10 or 20 or 30 percent of our people behind bars. Right off the bat, isn't that what you'd think?
Of course it's nothing close to that, which is the reason sentencing reformers carefully (and almost universally) avoid actual numbers in favor of scare phrases like "mass incarceration." If instead, the press said, "Our country's incarceration rate is such that slightly less than seven tenths of one percent of our people are in jail, almost all of them for felonies," the movement's traction would be all gummed up. "Mass incarceration" sounds a lot more rattling than "seven tenths of one percent," and for that reason, and that reason alone, "mass incarceration" is the characterization that gets chosen.
I might add, relatedly, that NAAUSA seems to have succeeded in (finally) debunking the other phony notion -- that the jails are filled with 19 year-old joint smokers. Through NAAUSA's persistence in telling the truth, Congress and even some of the press now seem much better to understand that the federal prison drug population are traffickers and hard druggies, not once-in-a-while users and pot smokers.
Not sure what you think I am trying to get you to bite, Bill. Rather, I think I am just seeking to hold you to standards similar to those you judge others by.
Specifically, here an elsewhere you suggest "mass incarceration" is a misleading characterization for a relatively small number, but then in the title of this post you use the term "mass clemency" to characterize what is a relatively SMALLER number. The 150 clemency grants to drug offenders which you describe as "mass" is less than two tenths of one percent (about .0015) of federal drug prisoners and less than one tenth of all federal prisoners (about .0008).
If Prez Obama were to in fact grant clemency to, say, five thousand of prisoners, I think your use of the term "mass clemency" would be fully appropriate even though this would still be less than 3% of all federal prisoners. But until Prez Obama goes there, your use of the term "mass clemency" for his work to date reveas you are, like those you are quick to criticize, inclined to "avoid actual numbers in favor of scare phrases."