Obama, Clemency and Racial/Ethnic Affirmative Action: Questionable Reticence; Debatable Boldness

                                                                                            William M. Leiter

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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, a bold, affirmative-action clemency policy for drug offenders has been announced, but this boldness is issue-laden as are the President’s affirmative-action deportation reprieve policies. Among other things: Will minority communities be harmed by the drug policy? How can deportation policy be made more humane?

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 which the U.S.
Supreme Court supported--with the Article II requirements that the president supervise the bureaucracy, and “take care that 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]

An affirmative-action use of President Obama’s clemency authorities could be an important weapon in dramatically reducing the disparate impact of criminal punishment imposed upon African Americans and Hispanics—a disparate impact trumpeted by the Obama Administration. That American society imposes a systemically-rooted disparate impact on minorities goes to the heart of affirmative action’s meaning.

Affirmative Action and its Rebadging

Affirmative action differs from other antidiscrimination initiatives in that (1) it targets and seeks to remedy systemic-societal bias (as manifested in public and private illegal action), not malefactors engaged in intentional discrimination prohibited by law ; (2) in separate protected-group specific programs, or as major portions of universal programs, it mandates race, ethnic, gender, sexual orientation, and disability-conscious remedies for the statistical disproportionately-adverse effects -- the so-called disparate impact -- of societal discrimination on protected groups, whether or not specific discriminatory intent on the part of defendants can be isolated; and (3) it seeks to integrate institutions by race, ethnicity, disabled condition, and sex. ^[8]

            Affirmative action connotes remedial consideration of race, ethnicity, disability, gender, or sexual orientation as a factor, among others, in decision-making about outreach, jobs, government contracting, K-12 student assignment, university admission, voting rights, housing, and the exercise of presidential clemency. The goal of this process is to redress the disadvantage under which members of disparately-impacted groups are said to labor. The relative weight accorded to race, national origin/ethnicity, gender, sexual orientation or disability varies from program to program.  Thus, affirmative action remedies range from disseminating job information to preferential employment and admissions practices, classroom integration, the creation of majority-minority legislative districts, set-asides for minority and women-owned businesses,  and court-ordered employment quotas in egregious discrimination cases.

            As noted, disparate-impact theory is central to affirmative action. That theory assumes the existence of unlawful discrimination in cases of protected-group over or underrepresentation. Such an assumption would make sense to Barack Obama where African Americans are concerned. In his remarks on the killing of Trayvon Martin, the President noted the continued, pervasive and systemic racism in America:[9]

There are very few African American men in this country who haven't had the experience of being followed when they were shopping in a department store.  That includes me.  There are very few African American men who haven't had the experience of walking across the street and hearing the locks click on the doors of cars.  That happens to me -- at least before I was a senator.  There are very few African Americans who haven't had the experience of getting on an elevator and a woman clutching her purse nervously and holding her breath until she had a chance to get off.  That happens often. …

The African American community is also knowledgeable that there is a history of racial disparities in the application of our criminal laws -- everything from the death penalty to enforcement of our drug laws.  …

Now, this isn't to say that the African American community is naïve about the fact that African American young men are disproportionately involved in the criminal justice system; that they’re disproportionately both victims and perpetrators of violence.  It’s not to make excuses for that fact -- although black folks do interpret the reasons for that in a historical context.  They understand that some of the violence that takes place in poor black neighborhoods around the country is born out of a very violent past in this country, and that the poverty and dysfunction that we see in those communities can be traced to a very difficult history. …

And let me just leave you with a final thought that, as difficult and challenging as this whole episode has been for a lot of people, I don’t want us to lose sight that things are getting better.  Each successive generation seems to be making progress in changing attitudes when it comes to race.  It doesn’t mean we’re in a post-racial society.  It doesn’t mean that racism is eliminated.  But when I talk to Malia and Sasha, and I listen to their friends and I see them interact, they’re better than we are -- they’re better than we were -- on these issues.  And that’s true in every community that I’ve visited all across the country.

            Affirmative action has been “rebadged.”  The need for “diversity” in school, government agencies, and workplace populations--and the supposed difference in ideas and practices various groups bring-- has become a dominant rationale used to support the race/ethnic/sex/disability-conscious remedies typical of traditional affirmative action’s effort to reduce systemic disparate impacts affecting protected groups. While analytically distinct, diversity theory urges and seeks the same remedial outcomes as affirmative action’s disparate-impact theory.

Why this shift to ideational differences to promote affirmative action? For one, diversity theory does not require the demonstration of past or present forbidden discrimination required by the U.S. Supreme Court since 1989^[10] as necessary constitutional support for disparate-impact affirmative action. Consequently, a barrier to promoting affirmative action is removed. Ideational diversity, as diversity theory has it, is required to spur productivity and intellectuality, irrespective of past or present discrimination. Alternatively, Harvard sociologist Frank Dobbin argues that diversity rebadging was a self-preservation “cover” created by affirmative-action devotees in personnel departments casting about for a theory which could thwart the Reagan Administration’s efforts to reduce the undesired affirmative-action treatment afforded protected groups. Professor Dobbin finds a bridge between diversity and disparate-impact thinking in American political thought. To him, mainstream American thinking and disparate-impact theory have both subscribed to fair and equal treatment. Fair and equal treatment and its rejection of racism and comparable invidious animosities, to the advocates of affirmative action, would lead naturally to diverse populations at work and in education.^[11] Besides, employing diversity themes lubricates the advance of affirmative action by making its controversial dimensions more politically palatable. Thus, in his Executive Order 13583,[12] President Obama established a “Coordinated Government-Wide Initiative to Promote Diversity and Inclusion in the Federal Workforce.” This Order did not focus on remedying racial/ethnic/gender discrimination through preferential devices. Rather, we are told that “Our Nation derives strength from the diversity of its population and from its commitment to equal opportunity for all. We are at our best when we draw on the talents of all parts of our society; and our greatest accomplishments are achieved when diverse perspectives are brought to the bear to overcome our greatest challenges.” The Director of the federal government’s central hiring agency--The Office of Personnel Management-- said in connection with the above order: "We're going to be very aggressive. We're going to dog this from every angle I can." [13]He drew particular attention to the government's need to hire more Hispanics and disabled people.[14] 

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. Thus, Attorney General Holder, in his prepared remarks of August 12, 2013,[15] 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,[16] 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.[17] 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.[18] 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 congress members supported the measure.[19] 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.[20]

             President Obama supported and signed the Fair Sentencing Act[21] 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.”[22]  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”[23] 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 Department of Justice officials including  federal public-defender lawyers,federal prosecutors and even judges who sentenced the inmates,[24] and submitted to the President for potential commutations if the petitioners are characterized by the following :[25]

         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 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[26] 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; prosecuting for crimes not involving mandatory minimums; submitting offenses to states for non-federal prosecution.[27]

The executive branch leaders surely can establish policy. Having policy implemented often requires persuading those charged with policy effectuation,[28] and in this case an organization representing U.S. prosecutors vigorously protested the Attorney General’s support of a congressional effort to reduce mandatory minimum sentences, leaving the question of how the above-cited charging policy is to be implemented. A January 27, 2014 letter[29] to the Attorney General from the National Association of Assistant United States Attorneys read in significant part:

As non-political career officers of the Department of Justice, our duty is to pursue justice. …We are exceedingly mindful of the force of that authority and the ethical imperative to steer clear of its abuse in the performance of our official responsibilities. This is why we do not join with those who regard our federal system of justice as “broken” or in need of major reconstruction. Instead, we consider the current federal mandatory minimum sentence framework as well-constructed and well worth preserving.

We believe the merits of mandatory minimums are abundantly clear. They reach only the most serious of crimes. They target the most serious of criminals. They provide us leverage to secure cooperation from defendants. They help to establish uniform consistency in sentencing. And foremost, they protect law-abiding citizens and help hold crime in check.

In the 1980’s, our country underwent a crime epidemic that took root, in significant measure, because of the proliferation of crack cocaine, heroin, methamphetamines and PCP in communities across America. Violence became rampant; thirty years ago, the murder rate was twice what it is now, and the overall crime rate was not far behind. Bi-Partisan majorities in Congress took action. They passed mandatory sentencing laws to combat the pernicious of crimes….Among the laws Congress passed were mandatory minimum sentences for drug trafficking that required judges to give at least a rock bottom sentence for the most harmful offenses.

As a result, we now have more uniformity in sentencing, and most importantly crime is now half of what [it] was in the era before mandatory minimum sentences took hold. The principal beneficiaries of this massive crime reduction are those who were disproportionately crime victims in the past—minority groups, particularly those in the inner cities. When crime starts to rise, as it did before mandatory sentencing laws and will again if we tear down the statutes that have helped keep us safe—minorities, disproportionately, will be the victims. The rest of our citizens won’t be far behind.

Prosecutorial Discretion and Illegal Immigrants

Illegal immigrants could be subject to criminal prosecution.[30] But even if subject to deportation without indictment for crime, they face criminal-like punishment: incarceration, an uprooting from family and friends, loss of employment and opportunity to gain from many of the benefits U.S. societal membership offers. In  mid-June, 2012, the President, in Rose Garden remarks, announced that some 800,000 to 1.76 million young, qualifying,[31] overwhelmingly Hispanic-illegals[32] 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 a minority group’s youth capacity to prosper. Skirting a deliberative-democracy opportunity, the President said:[33]

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                        

The Obama Administration has also attempted to exercise affirmative action in connection with the adult illegal residents, while at the same time trying to demonstrate that the Administration is dedicated to the enforcement of the law. The policy has been to be “tough” at the border and stop illegal entry; but to restrict deportation for those undocumented residing inland to those who are felonious. Resisted by law enforcement officials who have sued the Administration on the grounds of interference with the “faithful” execution of the laws, inland illegals have been deported who are not criminal. And, during the Obama years, deportation of illegals has been massive exciting enormous protests by Hispanic groups. The President has responded by ordering his officers to study how and if the treatment of illegals can be made more humane—that is how to expand upon affirmative action. The President has ordered a delay in this study which has been ongoing for months, pending possible congressional action on immigration reform. [34] Constitutionally, however, the conundrum regarding the presidential law execution continues to vibrate. Presidential prosecutorial discretion as to law execution is constitutionally recognized to exist alongside the president’s responsibility to faithfully execute the laws. Presidents have grappled with these conflicting responsibilities by doing what they felt was politically appropriate. The problem that the unwritten law of political acceptability/necessity can create, as Professor Miller noted, is that “the notion of a government under law is lost. Perhaps the concept never existed except in the myth system. … The President does what the political process allows him to do--or to get away with.”[35]

Copyright © 2014 by William Leiter with all rights Reserved

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[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] Here, "discrimination" means invidious (i.e., unfair or unjust) treatment of people. "Societal (systemic, disparate-impact) discrimination" means societally-rooted invidious treatment of people on account of group membership or affiliation. "Protected group" means the racial and ethnic (national origin/ancestral) groups, sexuality groups, and disabled people covered by anti-discrimination laws and regulations. "Minorities" are the racial and ethnic groups so covered. "Affirmative action" means the general policy for treating societal discrimination. There are many specific policies for implementing this general policy.

[9] U.S. Whitehouse Website, Remarks of the President on Trayvon Martin, July 19, 2013. http://www.whitehouse.gov/the-press-office/2013/07/19/remarks-president-trayvon-martin

[10] Richmond v. Croson, 488 U.S. 469 (1989); Adarand v. Pena, 515 U.S. 200 (1995).

[11] Frank Dobbin, Inventing Equal Opportunity (Princeton & Oxford, 2009), 101-160. The concepts “rebadging” and “retheorization” are from this volume.

[12] U.S. Whitehouse Website, Executive Order 13583, August 18, 2011.Accessible at http://www.whitehouse.gov/the-press-office/2011/08/18/executive-order-establishing-coordinated-government-wide-initiative-prom

[13] Cited by Joe Davidson, Diversity is Among OPM’s chief’s Top goals, The Washington Post, January 11, 2012, Metro Sect. B04.

[14] Id.

[15] 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

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

[17] 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).

[18] Statement of Judge Hinojosa, Acting Chair of U.S. Sentencing Commission at the Crime and Drugs Hearing. 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

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

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

[21] Pub. L. 111-227.

[22]  36 N.E. J. On Crim. & Civ. Con. (Cited in note 6).

[23] 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).

[24] 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, Address by Deputy Attorney General Cole on April 23, 2014. See http://www.justice.gov/iso/opa/dag/speeches/2014/dag-speech-140423.html

[25]  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

[26]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
[27] Id. and U.S. Department of Justice Website, Guidance to Prosecutors on Mandatory Minimum Drug Charging, August 12, 2013. See:http://www.justice.gov/ag/smart-on-crime/ag-memo-drug-guidance.pdf

[28] For a discussion of executive branch policy setting and implementation, see: William G. Howell, Power without Persuasion: The Politics of Direct Presidential Action (Princeton, 2003).

[29] Accessible at http://www.naausa.org/news/137.pdf

[30] See 8 United States Code, Section 1325.

[31] 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, Wall Street Journal, March 15, 2013, p. A2.

[32] 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.

[33]  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

[34] Ginger Thompson & Sarah Cohen, More Deportations Follow Minor Crimes, Data Shows—Despite Obama’s Pledges on Immigration, Focus is Not on Serious Offenders, The New York Times, National Edition, April, 7, 2014, pp. A1ff; Laura Meckler & Miriam Jordan, Easing of Deportations Expected to Be Modest, Wall Street Journal, April 24, 2014, p. A4; Michael C. Shear, Obama Asks Homeland Security to Delay Deportation Review, The New York Times, National Edition, May 28, 2014.

[35] Arthur S. Miller, The President and Faithful Execution of the Laws, 40 Vand. L. Rev. 389, 399 (March, 1987).