Occasional Posts on Affirmative Action and the Obama Administration

Friday, November 14, 2014

Affirmative Action and Deportation Dilemmas: Obama and Illegal Immigrants

William M. Leiter

Illegal immigrant advocates see the large undocumented population in the U.S. (estimated at some eleven million) as worthy of affirmative action, particularly because to a significant degree they are invited to this country through American offered economic opportunities. Affirmative action preferences are sought to thwart the disparate impact which American society imposes: e.g., discriminatory working conditions; racial profiling; and a life in the shadows fearing deportation. President Obama has promised assistance in connection with deportation. In the 2008 campaign, he attacked deportation harshness and promised to make reform a priority saying, “When communities are terrorized by ICE [Immigration and Customs Enforcement agency] immigration raids, when nursing mothers are torn from their babies, when children come home from school to find their parents missing, when people are detained without access to legal counsel, when all that’s happening, the system isn’t working.”[1] However, the Obama Administration deportation policy--using executive authority--has exhibited a dramatic variety of aggressiveness and liberality, raising the constitutional issue as to capacity of the president’s executive authority to shape deportation policy. What we have in this connection is a challenge to the Constitution’s Article I delegation of “all” legislative authority to the Congress of the U.S. Such challenges are quite common in this “age of the executive” where much or most of the law is made not by the legislature, but by administrators in the executive branch.[2] In short, to what degree may the executive branch separate itself from the separation of powers dictated by the U.S. Constitution where lawmaking is allocated to Congress, and where the president is required to bind the executive branch to the “faithful execution of the laws.”[3] Do modern circumstances require the abandonment of the Constitution’s separation of powers scheme? If not, what is the role of the Congress? These are old questions, and this paper will restrict itself to deportation policy.

The President’s Prosecutorial/Enforcement Discretion

Presidents and their executive-branch officers (using the president’s authority) have nearly complete discretion to prosecute people for violating U.S. criminal and civil laws. This clemency capacity is authorized by the Constitution’s Article II authorization to grant reprieves for all offenses against the U.S., and also supported--in a seemingly contradictory fashion--by the Article II requirements that the president supervise the bureaucracy, and “take care the laws be faithfully executed,”[4] meaning that presidents are to determine what the dictates of good faith require in the way of executing the laws. Congress has augmented this discretionary authority in deportation law. This law makes deportable all noncitizens whose presence in the United States is not authorized,[5] but the continual failure of Congress to fully fund the fulfillment of this extraordinary requirement involving the removal of some 11.5 million (about 30% of all noncitizens) from the U.S. requires the executive branch to set priorities.[6]

Some two million persons have been deported during the Obama Administration, a record high for presidential administrations. Initially, the policy of the Administration was quite hardline and was designed to assure the GOP that the border was really secure. Republicans insisted upon border security as a precondition for a “comprehensive” immigration reform statute permitting large numbers of illegals to stay in this country without fear of deportation. After its first two years, the Administration’s deportation policy proclaimed that its prosecutorial discretion would be used to prioritize expelling hard-core criminals, but that policy has had limited success.[7] The problem, in part, was a failure of a large number of federal field officials to adhere to the Obama Administration’s new softer deportation policy.[8] The union representing some 7,000 ICE employees has opposed the Administration’s felony, criminal-offender prioritization, arguing that it frustrated the ICE’s core mission of enforcing the nation’s immigration laws.[9] An extensive New York Times analysis of governmental records—published on April 7, 2014, noted that two-thirds of the nearly two-million deportees during the Obama years involved individuals who had either no criminal records or had minor infractions on their records like traffic violations which included driving without a license. Only 20% of those expelled had been guilty of major felonies such as drug offenses.[10] In short, this New York Times analysis challenged the accuracy of the President’s insistence that his Administration was going after “criminals, gang bangers, people who are hurting the community, not after students, not after folks who are here just because they’re trying to figure out how to feed their families.”[11]

Subject to severe criticism from immigrant-rights advocates, the President, in mid-June, 2012, during Rose Garden remarks, announced that some 800,000 to 1.76 million young, qualifying,[12] overwhelmingly Hispanic illegals[13] would be freed from the oppressiveness of statutorily required deportation through the exercise of the President’s prosecutorial discretionary reprieve power meant to prevent a disparate impact frustrating the capacity of a minority group’s youth to prosper. Skirting a deliberative-democracy opportunity, the President said:[14]

In the absence of any immigration action from Congress to fix our broken immigration system, what we’ve tried to do is focus our immigration enforcement resources in the right places. . . . We've improved on that discretion carefully and thoughtfully. Well, today, we're improving it again. Effective immediately, the Department of Homeland Security is taking steps to lift the shadow of deportation from these young people. Over the next few months, eligible individuals who do not present a risk to national security or public safety will be able to request temporary relief from deportation proceedings and apply for work authorization. Now, let's be clear -- this is not amnesty, this is not immunity. . . . It is --

Q (Inaudible.) THE PRESIDENT: -- the right thing to do.

Q -- foreigners over American workers.

THE PRESIDENT: Excuse me, sir. It's not time for questions, sir.

Q No, you have to take questions.

THE PRESIDENT: Not while I'm speaking.

Precisely because this is temporary, Congress needs to act. There is still time for Congress to pass the DREAM Act this year, because these kids deserve to plan their lives in more than two-year increments. . . . And as long as I’m President, I will not give up on this issue, not only because it’s the right thing to do for our economy -- and CEOs agree with me -- not just because it’s the right thing to do for our security, but because it’s the right thing to do, period. . . . And the answer to your question, sir -- and the next time I’d prefer you let me finish my statements before you ask that question -- is this is the right thing to do for the American people --

Q (Inaudible.)

THE PRESIDENT: I didn’t ask for an argument. I’m answering your question.

Q I'd like to --

THE PRESIDENT: It is the right thing to do --

Q (Inaudible.)

THE PRESIDENT: -- for the American people. And here’s why --

Q -- unemployment --

THE PRESIDENT: Here’s the reason: because these young people are going to make extraordinary contributions, and are already making contributions to our society. I’ve got a young person who is serving in our military, protecting us and our freedom. The notion that in some ways we would treat them as expendable makes no sense. If there is a young person here who has grown up here and wants to contribute to this society, wants to maybe start a business that will create jobs for other folks who are looking for work, that’s the right thing to do. Giving certainty to our farmers and our ranchers; making sure that in addition to border security, we’re creating a comprehensive framework for legal immigration -- these are all the right things to do.

We have always drawn strength from being a nation of immigrants, as well as a nation of laws, and that’s going to continue. And my hope is that Congress recognizes that and gets behind this effort. All right. Thank you very much.

Q What about American workers who are unemployed while you import foreigners?

END

Possible New Presidential Deportation Policy

It would be most difficult--politically and on humanitarian grounds-- to deport the hundreds of thousands (if not close to two million) younger people who have been authorized to stay (and acquire work permits and driver’s licenses) in this country as a result of the President’s non-enforcement/reprieve policy. (Formally titled DACA—Deferred Action for Childhood Arrivals.) The President’s policy--though dubbed temporary--is likely permanent. The growing Hispanic political potency, and the non-Hispanic support for illegal immigrant leniency, are simply too strong to allow DACA’s demise. Another two-year DACA-reprieve has been authorized. Constitutionally, there is a problem. Accepted constitutional doctrine leaves basic and permanent domestic policies affecting large numbers of people to law-making by statute, and not to the executive branch operating through executive orders. This is particularly true of the immigration policy as Article I, Section 8 of the Constitution commands that Congress (and not the president) has the power to establish a “uniform rule of naturalization.” The most modern U.S. Supreme Court opinion [INS v. Chadha, 462 U.S. 919 (1983)] on separation of powers doctrine is that the congressional Article I, Section 8 law-making power, including immigration, is plenary, and that executive regulatory authority is restricted to subordinate rule-making delegated by Congress.[15] Nonetheless, the Obama Administration is reportedly contemplating the use of nonenforcement which would prevent the deportation of some half of the many millionsof illegals in this country.[16] Such presidential action--in so many respects meritorious-- would, as in the case of DACA, likely be permanent and not temporary. It would surely be challenged as unconstitutional, and as a severe violation of the president’s constitutional duty to faithfully execute the laws. INS v. Chadha could be cited as grounds for insisting that the president’s deportation/ reprieve power is restricted to what Congress allows, and Congress surely has not authorized the freeing of millions of illegals from deportation. But the only certainty about separation of powers doctrine is that it is uncertain. Radically different doctrinal views regarding immigration power have been expressed by the Supreme Court over the years—some even grounded in the view that the president has inherent power over immigration.[17] Indeed, congressional immigration statutes have been marked by great detail as who may come and who may stay. Nonetheless, the president has exercised great authority over these matters irrespective of whether his enforcement discretion has been delegated by Congress or not.[18]

Apart from constitutional questions, authorizing millions of unauthorized immigrants to stay and work in this country raises severe questions about its policy appropriateness. Consider these excerpts from an August 5, 2014 letter to President Obama from United States Civil Rights Commissioner Peter Kirsanow:[19]

It has been widely reported in the press that you are preparing to issue an executive order that purports to grant legal status and work authorization to millions of illegal immigrants. I write to remind you of the disastrous effect of illegal immigration on the employment of all Americans, but particularly black Americans. Any grant of legal status will serve as a magnet to prospective illegal immigrants and further depress employment opportunities and wages for African-Americans. …

In 2008, the U.S. Commission on Civil Rights held a briefing regarding the impact of illegal immigration on the wages and employment opportunities of African-Americans. The testimony at the briefing indicated that illegal immigration disproportionately impacts the wages and employment opportunities of African-American men. …

The briefing witnesses, well-regarded Scholars from leading universities and independent groups, were ideologically diverse. All the witnesses acknowledged that illegal immigration has a negative impact on black employment, both in terms of employment opportunities and wages. The witnesses differed on the extent of that impact, but every witness agreed that illegal immigration has a discernible negative effect on black employment. For example, Professor Gordon Hanson’s research showed that “Immigration . . . accounts for about 40 percent of the 18 percentage point decline [from1960-2000] in black employment rates.” Professor Vernon Briggs writes that illegal immigrants and blacks (who are disproportionately likely to be low-skilled) often find themselves in competition for the same jobs, and the huge number of illegal immigrants ensures that there is a continual surplus of low-skilled labor, thus preventing wages from rising. Professor Gerald Jaynes’s research found that illegal immigrants had displaced U.S. citizens in industries that had traditionally employed large numbers of African-Americans, such as meatpacking.

Illegal immigration has a disparate impact on African-American men because these men are disproportionately represented in the low-skilled labor force. The Census Bureau released a new report on educational attainment after the Commission issued its report. This report, released in February 2012, found that 50.9 percent of native-born blacks had not continued their education beyond high school. The same report found that 75.5 percent of foreign-born Hispanics had not been educated beyond high school, although it does not disaggregate foreign-born Hispanics who are legal immigrants from those who are illegal immigrants. However, Professor Briggs estimated that illegal immigrants or former illegal immigrants who received amnesty constitute a third to over a half of the total foreign-born population. Foreign-born Hispanics who are in the United States illegally are disproportionately male. African-Americans who have not pursued education beyond high school are also disproportionately male. These poor educational attainment levels usually relegate both African-American men and illegal immigrant men to the same low-skilled labor market, where they must compete against each other for work.

Your proposed executive order will also have a negative effect on young African-Americans at the outset of their working lives. Young, low-skilled workers are facing enormous difficulties in this economy. A recent study from the Brookings Institution found, “Only about half of high school graduates not enrolled in post-secondary education and less than 30 percent of high school dropouts worked in a given month in 2011.” Black teens had the highest labor underutilization rate (defined as encompassing the unemployed, the unemployed who desire employment but are not actively looking, and the underemployed) of any ethnic group – 60 percent. Furthermore, “Several variables were negatively associated with teen employment rates in a given metropolitan area. … [including] the presence of immigrants with less than a bachelor’s degree.” This will affect young people for the rest of their lives, as those who work during their teenage years have more successful careers than those who did not.

Granting legal status to millions of people who are in the United States illegally will continue to depress the wages and employment opportunities of African-American men and teenagers. It also will depress the wages and employment opportunities of African-Americans going forward. Since 1986, we have seen that granting legal status to illegal immigrants, or even mere rumors that legal status will be granted, increases illegal immigration. …

The irony is that your administration’s policies operate at cross-purposes. In 2013, the EEOC issued guidance regarding the use of criminal background checks as part of a prisoner re-entry effort. The guidance was premised on the fact that African-American males are more likely to have a criminal record, and therefore, according to the EEOC, are more likely to be harmed by the use of criminal background checks. Yet you are planning on issuing an executive order that will harm the employment prospects of African-American workers now and for years to come. In one part of the executive branch, the EEOC issues misguided policies in an attempt to increase employment opportunities for African-American men, and in another part of the executive branch, you prepare to issue an executive order that will decrease employment opportunities and wages for those very same African-American men.

Additionally, your proposed executive order will have a disparate impact on the basis of national origin. As you know, disparate impact theory holds that a facially neutral policy can nonetheless constitute unlawful discrimination if it disproportionately affects a particular group. The proposed executive order will do just that. It will necessarily disproportionately benefit people who are Mexican and Central American, which means that it will disproportionately disadvantage other ethnic groups. In other contexts, this would be considered a violation of Title VII. …

[1] Cited by Ginger Thompson & Sarah Cohen, “More Deportations Follow Minor Crimes, Data Show,” The New York Times, Natl. Ed., April 7, 2014, p. A12.

[2] Philip Hamburger, Is Administrative Law Unlawful ? (University of Chicago Press, 2014), 1.

[3] Article II of the U.S. Constitution, section 3.

[4] U.S. v. Armstrong, 517 U. S. 456, 464, 463-471 (1996).

[5] Adam B. Cox & Cristina M. Rodriguez, “The President and Immigration,” 119 Yale L. J. 458 (Dec. 2009), 512-513.

[6] Id and Robert J. Delahunty & John X. Yoo, The Obama Administration’s Nonenforcement of Immigration Laws, The DREAM Act, and the Take Care Clause, 91 Texas Law Review 781(2013), 788.

[7] Laura Preston, “While Seeking Support, Obama Faces a Frustrated Hispanic Electorate,” The New York Times, Natl. Ed., June 11, 2012, p. A10.

[8] Editorial: “Fixing Immigration in the Field,” The New York Times, Natl. Ed., August 17, 2014, p. A10.

[9] Laura Meckler & Miriam Jordan, “Easing of Deportations Expected to Be Modest,” The Wall Street Journal, April 24, 2014, p. A4.

[10] Ginger Thompson & Sarah Cohen, “More Deportations Follow Minor Crimes, Data Show,” The New York Times, Natl. Ed., April 7, 2014, p. A1, A12.

[11] Id, p. A1.

[12] Among other things, to qualify applicants must have come to the U.S. when they were 16 or less; have lived in the U.S. continuously for the last 5 years; be under 31; and completed or be in the process of completing high school. Miriam Jordan, Young Immigrants’ Applications Fall, The Wall Street Journal, March 15, 2013, p. A2.

[13] Robert J. Delahunty & John X. Yoo, The Obama Administration’s Nonenforcement of Immigration Laws, The DREAM Act, and the Take Care Clause, 91 Texas Law Review 781(2013), 783.

[14] U.S. Whitehouse Website, Remarks by the President on Immigration, June 12, 2012. See:http://www.whitehouse.gov/the-press-office/2012/06/15/remarks-president-immigration

[15] Adam B. Cox & Cristina M. Rodriguez, “The President and Immigration,” 119 Yale L. J. 458 (Dec. 2009), 476-483.

[16] Ronald Brownstein, “Immigration Showdown,” The Los Angeles Times, July 18, 2014, p. A17.

[17] Cox & Rodriguez, 119 Yale L. J. 460-461. (Cited in note 15.)

[18] Id at 510-511.

[19] Footnotes Omitted. Letter accessible at http://www.newamericancivilrightsproject.org/wp-content/uploads/2014/08/Letter-to-President-Obama-Regarding-Proposed-Illegal-Immigration-Executive-Order.pdf

Tuesday, August 26, 2014

Obama and Illegal Immigrants: Dilemmas of Deportation Policy

William M. Leiter

Accessible by Using Windows 7 or Higher

The President’s Prosecutorial/Enforcement Discretion

Q (Inaudible.) THE PRESIDENT: -- the right thing to do.

Q -- foreigners over American workers.

THE PRESIDENT: Excuse me, sir. It's not time for questions, sir.

Q No, you have to take questions.

THE PRESIDENT: Not while I'm speaking.

Q (Inaudible.)

THE PRESIDENT: I didn’t ask for an argument. I’m answering your question.

Q I'd like to --

THE PRESIDENT: It is the right thing to do --

Q (Inaudible.)

THE PRESIDENT: -- for the American people. And here’s why --

Q -- unemployment --

Q What about American workers who are unemployed while you import foreigners?

END

Possible New Presidential Deportation Policy

[1] Cited by Ginger Thompson & Sarah Cohen, “More Deportations Follow Minor Crimes, Data Show,” The New York Times, Natl. Ed., April 7, 2014, p. A12.

[2] Philip Hamburger, Is Administrative Law Unlawful ? (University of Chicago Press, 2014), 1.

[3] Article II of the U.S. Constitution, section 3.

[4] U.S. v. Armstrong, 517 U. S. 456, 464, 463-471 (1996).

[5] Adam B. Cox & Cristina M. Rodriguez, “The President and Immigration,” 119 Yale L. J. 458 (Dec. 2009), 512-513.

[6] Id and Robert J. Delahunty & John X. Yoo, The Obama Administration’s Nonenforcement of Immigration Laws, The DREAM Act, and the Take Care Clause, 91 Texas Law Review 781(2013), 788.

[7] Laura Preston, “While Seeking Support, Obama Faces a Frustrated Hispanic Electorate,” The New York Times, Natl. Ed., June 11, 2012, p. A10.

[8] Editorial: “Fixing Immigration in the Field,” The New York Times, Natl. Ed., August 17, 2014, p. A10.

[9] Laura Meckler & Miriam Jordan, “Easing of Deportations Expected to Be Modest,” The Wall Street Journal, April 24, 2014, p. A4.

[10] Ginger Thompson & Sarah Cohen, “More Deportations Follow Minor Crimes, Data Show,” The New York Times, Natl. Ed., April 7, 2014, p. A1, A12.

[11] Id, p. A1.

[13] Robert J. Delahunty & John X. Yoo, The Obama Administration’s Nonenforcement of Immigration Laws, The DREAM Act, and the Take Care Clause, 91 Texas Law Review 781(2013), 783.

[14] U.S. Whitehouse Website, Remarks by the President on Immigration, June 12, 2012. See:http://www.whitehouse.gov/the-press-office/2012/06/15/remarks-president-immigration

[15] Adam B. Cox & Cristina M. Rodriguez, “The President and Immigration,” 119 Yale L. J. 458 (Dec. 2009), 476-483.

[16] Ronald Brownstein, “Immigration Showdown,” The Los Angeles Times, July 18, 2014, p. A17.

[17] Cox & Rodriguez, 119 Yale L. J. 460-461. (Cited in note 15.)

[18] Id at 510-511.

Wednesday, July 30, 2014

Obama and Criminal Justice--Whither the Clemency Initiatives?

William M. Leiter

Accessible by Using Windows 7 or Higher

Abstract

President Obama has been criticized for his reticence in using his clemency authority, particularly in connection with minorities who have been disparately punished for drug offenses. As of late, bold, affirmative-action Clemency Initiatives have been announced by the Obama Administration but this boldness is issue-laden: Will minority communities be harmed by these initiatives? What are the standards applicable to these initiatives?

Presidential Clemency

Article II, Section 2 of the U.S. Constitution designates that the president “shall have Power to grant Reprieves and Pardons for Offenses [crimes] against the United States, except in Cases of Impeachment.” If total, a pardon removes the “existence of guilt.”[1] A reprieve is a stay of execution, stopping the impositions of federal law such as prosecutorial discretion not to prosecute—a clemency capacity also supported, in a seemingly contradictory fashion, by the Article II requirements that the president supervise the bureaucracy and “take care the laws be faithfully executed.”[2] These supervisorial executive powers were employed by President Obama in his June, 2012, two-year reprieve staying deportation proceedings affecting young, qualifying, undocumented residents in this country illegally.[3] Presidential clemency has been determined by the U. S. Supreme Court to include commutations--reductions in criminal punishment which often have come with conditions--on the grounds that presidents may extend their mercy upon what terms they please.[4] Thus, President Nixon commuted the prison sentence of Teamster-Union leader Jimmy Hoffa to time served on the condition that he refrain from Union management activities during the remainder of the prison term to which he had been sentenced.[5]

President Obama, like recent presidents, has been criticized for his reticent use of his pardon and commutation powers.[6] For examples, President Carter approved 21% of petitions for pardons or commutations (563 of 12,627 petitions); Reagan granted 12% (406/3,404); George H.W. Bush, 5% (77/1,466); Clinton 6% (457/7,489); and George W. Bush 2% (200/11,074). As of June, 2012, President Obama granted but 1% of 6,662 of the petitions for pardons and commutations his pardon office received.[7]

Ombamian Disparate-Impact Themes and the Remedying of the Criminal Justice System

In its approach to remedying the ills of the criminal justice system, the Obama Administration has employed affirmative action’s traditional disparate-impact themes. That American society imposes a systemically-rooted and invidious disparate impact on minorities goes to the heart of affirmative action’s meaning and policies.

Thus, Attorney General Holder, in his prepared remarks of August 12, 2013,[8] told a meeting of the American Bar Association that President Obama:

[H]as made it part of his mission to reduce the disparities in our criminal justice system. In Illinois, he passed legislation that addressed racial profiling and trained police departments on how they could avoid racial bias. . . .Right now unwarranted disparities are far too common. As President Obama said last month, it’s time to. . .address the fact that young black and Latino men are likely to become disproportionately involved in our criminal justice system—as victims as well as perpetrators.

We must also confront the reality that—once they’re in that system—people of color often face harsher punishment than their peers. One deeply troubling report, released in February [2013], indicates that—in recent years—black male offenders have received sentences 20 percent longer than those imposed on white males convicted of similar crimes. This isn’t just unacceptable—it is shameful. It’s unworthy of our great country, and our great legal tradition.

In an interview with David Remnick reported in the January 27, 2014 issue of the New Yorker magazine,[9] President Obama underscored the negative criminal justice disparities affecting Blacks and Hispanics in the conduct of drug-use enforcement. To the President, marijuana smoking was less dangerous than alcohol use:

Less dangerous, he said, “in terms of its impact on the individual consumer. It’s not something I encourage, and I’ve told my daughters I think it’s a bad idea, a waste of time, not very healthy.” What clearly does trouble him is the radically disproportionate arrests and incarcerations for marijuana among minorities. “Middle-class kids don’t get locked up for smoking pot, and poor kids do,” he said. “And African-American kids and Latino kids are more likely to be poor and less likely to have the resources and the support to avoid unduly harsh penalties.” But, he said, “we should not be locking up kids or individual users for long stretches of jail time when some of the folks who are writing those laws have probably done the same thing.”

In recent years, the Black-White prison-incarceration disparity has been 7 to 1, with Blacks being the 7. Critical to this disparity is drug-enforcement. Prison populations in America have exploded in large measure because of the “war on drugs.” More are incarcerated in the U.S. than in any other industrialized nation, and—as reported by Professor Paul Butler in 2010-- Blacks and Hispanics make up three-fourths of those incarcerated, with 80-90% of those imprisoned being Black in seven states. Crack-cocaine offenses are an important reason for Black imprisonment.[10] In fiscal 2008, about half of the federal drug-trafficking cases involved crack or powder cocaine. In that year, 80.6% of the sentenced federal crack-cocaine defendants were African Americans, while Hispanics were a majority of the powder cocaine convicted defendants. Crack offenders were sentenced to an average of 115 months in prison; powder offenders, 91 months.[11]

Harvard Law Professor Randall Kennedy has noted the absence of evidence that the crack-powder punishment disparity as provided by the initial statute was rooted in racial bias, particularly since leading African-American members of Congress supported the measure.[12] Nonetheless, in 2007, presidential candidate Barack Obama--while proclaiming his “Smart on Crime” policy promising equality for all in the administration of criminal justice-- opined that the crack-powder punishment disparity was racist.

We can have a crime policy that’s both tough and smart. If you’re convicted of a crime involving drugs, of course you should be punished. But let’s not make the punishment for crack cocaine that much more severe than the punishment for powder cocaine when the real difference between the two is the skin color of the people using them. Judges think that’s wrong. Republicans think that’s wrong. Democrats think that’s wrong, and yet it’s been approved by Republican and Democratic Presidents because no one has been willing to brave the politics and make it right. That will end when I am President.

I think it’s time we also took a hard look at the wisdom of locking up some first-time, non-violent drug users for decades. Someone once said that “…long minimum sentences for first-time users may not be the best way to occupy jail space and/or heal people from their disease.” That someone was George W. Bush – six years ago. I don’t say this very often, but I agree with the President. The difference is, he hasn’t done anything about it. When I’m President, I will. We will review these sentences to see where we can be smarter on crime and reduce the blind and counterproductive warehousing of non-violent offenders. And we will give first-time, non-violent drug offenders a chance to serve their sentence, where appropriate, in the type of drug rehabilitation programs that have proven to work better than a prison term in changing bad behavior. So let’s reform this system. Let’s do what’s smart. Let’s do what’s just.

Now, there is no doubt that taking these steps will restore a measure of justice and equality to America. They will also restore a sense of confidence to the American people that the system doesn’t just work – it works for everyone.[13]

President Obama supported and signed the Fair Sentencing Act[14] of August, 2010 which reduced sentencing disparity between those guilty of crack and powder-cocaine offenses. Under the old law, one found guilty of a crack-cocaine offense involving 10 grams of crack faced a mandatory punishment of 10 years imprisonment; while the same sentence would not be imposed for powder-cocaine offenses unless 1,000 grams were involved. This 100 to 1 disparity was reduced to 18 to 1, but was not made retroactive allowing those imprisoned under the old law to serve longer sentences than those convicted for the same offense under the new law. The absence of retroactivity troubled the Obama Administration and is central to its “priority” clemency proposal of April 23, 2014 discussed below. The President’s clemency power might have been used to correct the disparity imposed on the thousands of “old-law” crack prisoners, but this power was rarely used. In a 2010 essay, law professor Douglas Berman urged the President to correct the drug offense racial disparities via clemency, and that failure to do so would undermine the Obama campaign pledge of “hope and change.”[15] The President’s reticence in this regard doubtless has many roots, but one may have been his hesitancy to publicly focus on negritude, given his commitment to be president of all Americans. Pardons and commutations for the old-law prisoners might have fomented the charge that President Obama was “too black”—a charge that he has attempted to avoid.

Recent “feedback”[16] from liberals and conservatives with a growing insistence that U.S. criminal justice policy is “broken” because of such problems as over-incarceration; costliness of federal prisons; and racial/ethnic disparities apparently has prompted the Obama Administration to propose reforms in its clemency policy: (1) An August, 2013 policy calling for the use of the President’s prosecutorial discretion to end mandatory minimum sentences for some drug offenses; (2) an April, 2014 policy to prioritize and expedite clemency applications for drug offenders, particularly the “old-law” crack offenders mentioned just above. Both initiatives were designed to appear bold, and both scream out with issues.

In late April, 2014, Deputy U.S. Attorney James Cole announced a “priority” clemency application process allowing prisoners in the federal jails --with the assistance of pro bono lawyers assigned by the Justice Department--to petition for clemency. These applications are to be reviewed by U.S. Justice Department officials (including federal prosecutors, federal public defenders, and even judges who sentenced the inmates)[17]and submitted to the President, where warranted, for potential commutations. To be eligible for review under this Clemency Initiative, inmates must conform with the following:[18]

 They are currently serving a federal sentence in prison and, by operation of law, likely would have received a substantially lower sentence if convicted of the same offense(s) today;

 They are non-violent, low-level offenders without significant ties to large scale criminal organizations, gangs or cartels;

 They have served at least 10 years of their prison sentence;

 They do not have a significant criminal history;

 They have demonstrated good conduct in prison; and

 They have no history of violence prior to or during their current term of imprisonment.

How is to be determined that inmates would have been sentenced to less imprisonment if found guilty “today”? How are the concepts “non-violent,” “low-level,” and significant ties to “large-scale criminal organizations, gangs, or cartels” to be defined”? Can it not be expected that prisoners who have served at least ten years in criminally poisonous environments will endanger the already crime-ridden minority communities? Is not the new clemency initiative playing with fire?

In August 2013, Attorney General Holder, citing racial/ethnic disproportionalities associated with mandatory-minimums drug sentencing[19] ordered his prosecutors to exercise the prosecutorial discretion constitutionally afforded the president not to charge drug-offender defendants with federal crimes involving mandatory-minimums if, among other things, the defendant was non-violent, had no significant criminal history, and was not significantly tied to criminal groups. Where such non-violent, low-level defendants were involved, the prosecutors were instructed to seek non mandatory-minimum sentence remedies: plea bargains involving less imprisonment; prosecution for crimes not involving mandatory minimums; submission of offenses to states for non-federal prosecution. How are non-violence, low-level criminality, and significant ties to gangs to be defined by the prosecutors? Will minority communities be better off by the Attorney General’s policy of August, 2013?

[1] Ex Parte Garland, 71 U.S. 333, 380 (1867).

[2] U.S. v. Armstrong, 517 U. S. 456, 464, 463-471 (1996).

[3] U.S. Whitehouse Website, President’s Remarks on Immigration, June 12, 2012. See: http://www.whitehouse.gov/the-press-office/2012/06/15/remarks-president-immigration

[4] Ex Parte Wells, 59 U.S. 307, 311(1855).

[5] Jeffrey Crouch, Sentence Commutations and the Executive Pardon Power—The President’s Power to Commute: Is it Still Relevant?, 9 U. St. Thomas L. J. 681, 689-690 (Spring, 2012).

[6] Douglas A. Berman, Turning Hope and Change Talk into Clemency Action for Nonviolent Drug Offenders, 36 N.E. J. On Crim. & Civ. Con., (Winter, 2010); Margaret Colgate Love, The Twilight of the Pardon Power, 100 J. Crim. L. & Criminology, 1169 (2010); Crouch, 9 U. St. Thomas L. J. 681 (cited in note 5).

[7] Crouch, 9 U. St. Thomas L. J. 681, 686 (Cited in note 5).

[8] U.S. Department of Justice Website, Remarks of the Attorney General Prepared for Delivery at the Annual Meeting of the American Bar Association’ s House of Delegates. See http://www.justice.gov/usao/wie/news/2013/Downloads/AG_Holder_ABA_House_of_Delegates_Remarks_08-12-13.pdf

[9] Accessible at: http://www.newyorker.com/reporting/2014/01/27/140127fa_fact_remnick?currentPage=all

[10] Paul Butler, Centennial Symposium: A Century of Criminal Justice: III: The People: One Hundred Years of Race and Crime, 100 J. Crim. L. & Criminology 1043, 1046-1048 (Summer, 2010).

[11] Statement of Judge Hinojosa, Acting Chair of U.S. Sentencing Commission at the Crime and Drugs U.S. Senate Subcommittee of the Senate Judiciary Committee, Hearing on Addressing the Crack-Powder Disparity, April 29, 2009, p. 9. See:http://www.gpo.gov/fdsys/pkg/CHRG-111shrg57626/pdf/CHRG-111shrg57626.pdf

[12] Race, Crime, and the Law (Pantheon, 1997), 364-386.

[13] Address at the Howard University 140^th Opening Convocation, 2007. Accessible at http://www.howard.edu/newsroom/news/2007/071001RemarksofSenatorBarackObama.htm

[14] Pub. L. 111-227.

[15] 36 N.E. J. On Crim. & Civ. Con. (Cited in note 6).

[16] Steven M. Teles, Locked In? Conservative Reform and the Future of Mass Incarceration, 651 Annals of the American Academy of Political and Social Science, 266 (January, 2014).

[17] The ACLU; Families Against Mandatory Minimums; the American Bar Association; the National Association of Criminal Defense Lawyers. See ACLU Website, Clemency Project 2014 Praises Justice Department for Breathing New Life in to Clemency Process, April 23, 2014. See https://www.aclu.org/criminal-law-reform/clemency-project-2014-praises-justice-department-breathing-new-life-clemency and U. S. Department of Justice Website, Address by Deputy Attorney General Cole on April 23, 2014. See http://www.justice.gov/iso/opa/dag/speeches/2014/dag-speech-140423.html

[18] U.S. Department of Justice Website, Deputy Attorney General James Cole Announces a New Clemency Initiative, April 23, 2014. Accessible at: http://www.justice.gov/opa/pr/2014/April/14-dag-419.html

[19] U.S. Department of Justice Website, Remarks by the Attorney General Prepared for Delivery at the Annual Meeting of the American Bar Association’s House of Delegates. See http://www.justice.gov/usao/wie/news/2013/Downloads/AG_Holder_ABA_House_of_Delegates_Remarks_08-12-13.pdf