William M. Leiter
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?
Copyright © 2014 by William
Leiter with all rights Reserved
[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
[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 140th 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
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