Setting the Record Straight on Clemency

We all saw how last summer, New York Times reporters pretty consistently distorted stories about Hillary Clinton’s emails. It was a good reminder that we all have to be intelligent consumers of “news” these days.

I was reminded of that when I read todays banner article at Politico’s Magazine by Bill Keller titled: On Pardons, Obama’s the Stingiest President Since John Adams. If you simply go with the title, Keller has a point. President Obama has issued only 64 pardons to date, the fewest since Adams. But when you actually read the whole article, it’s a mess.

To understand why, you have to know the difference between granting a pardon and a commutation. The former wipes an offenders record clean and is granted after they have concluded whatever sentence was imposed. Commutation is the reduction in severity of the penalty imposed by law and involves releasing someone from prison prior to their having served the entire sentence.

Keller highlights the fact that President Obama has been rather stingy with pardons and sees this as a weakness in his commitment to criminal justice reform.

Thanks to the punitive fervor of the war on drugs, by the time Obama took office federal prisons were packed with inmates serving sentences measured in decades for possession or minor trafficking. A bipartisan consensus was arising that America—with 5 percent of the world’s population and nearly 25 percent of its prisoners—had gone overboard.

Advocates who see the president’s power as a way to alleviate the excess see the process bogged down, as Bush warned, in a Justice Department that lacks the attention (and, apparently, the will) to vet candidates for clemency.

He then goes on to describe President Obama’s Clemency Initiative (CP14) – which is focused on commutations – and says this:

CP14 received applications from more than 33,000 federal inmates, according to Cynthia Roseberry, a veteran Georgia defense attorney who serves as project manager on CP14. Of those, 18,660 have been screened out as unqualified, and most of the rest are still oozing through the system.

When it comes to the Clemency Initiative, it is important to remember two things: (1) the Obama administration has committed to acting on every petition it receives up to January 2016 under CP14, and (2) the Department of Justice recently began implementing the retroactive application of the Fair Sentencing Act, which has already resulted in the release of some 6,000 inmates (with an additional 8,550 potentially released in the next year).

Given that both CP14 and the Fair Sentencing Act were designed to mitigate overly harsh mandatory minimum sentences, I’m sure there is a huge overlap between those Keller describes as “oozing through the system” of CP14 and those who are eligible for early release under this retroactive application. So the total number of people who will eventually be granted clemency by President Obama’s initiative will likely be lower than it would have been otherwise. Somehow I doubt that will matter to those who are the beneficiaries.

If one wants to critique President Obama on the number of pardons he has granted, that is a reasonable position. But it is clear that the President’s priority – given the injustices of the war on drugs and mass incarceration – has been on granting commutations. In that arena, no other presidential record even comes close. As a result of these and other efforts, the federal prison population is declining for the first time in 30 years.

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Nancy LeTourneau

Nancy LeTourneau is a contributing writer for the Washington Monthly.