Presumed guilty: Obama’s ‘miserly’ use of the pardon

The government shutdown has furloughed one of the most pivotal officials in the criminal justice system–the Justice Department’s pardon attorney.  But it turns out he hasn’t been that busy.

In a record that may surprise many political observers, the Obama administration’s pardon attorney, Ronald Rodgers, has teed up the lowest rate of pardons and commutations of any recent administration.

“This president is the most miserly pardoner of any modern president,” says MSNBC.com Managing Editor Dafna Linzer, who led an investigation on the presidential pardon power for the Washington Post and Pro-Publica. 

At the same point in his presidency, Bill Clinton pardoned one in every eight applicants, while George W. Bush pardoned one in every 33.  President Obama’s rate has been one in every 50.

The raw numbers reveal the same disparity.  While Clinton issued 396 pardons and 61 commutations over eight years, Obama has issued 39 pardons–and just one commutation–over five years.

Obama’s reluctance to use this power is confounding. His Justice Department has embraced “smart on crime” policies to reduce prison for non-violent offenders, at least for future defendants. And more broadly, he has sought to affirm core constitutional powers of the presidency, especially when challenged by an aggressive Congress.

There’s no debate that the executive wields absolute and unilateral pardon powers.  Under the Constitution, only the president grants “reprieves and pardons for offenses.” He can decide when that is necessary to remedy situations where the justice system got it wrong.

Examples include overturning a conviction after new evidence emerges and reducing harsh prison sentences when the punishment doesn’t fit the crime. Or, perhaps most compellingly, the president can use commutations to release people stuck in prison for actions that are not even illegal anymore, or that would be punished differently today.

Many criminal justice advocates are calling on Obama to apply that standard to the war on drugs.  After all, the president signed a law reducing mandatory minimums for crack offenses, (which used to run ten years for ten grams, far harsher than cocaine use). He also rolled back the use of mandatory minimums against non-violent drug defendants, a policy that could upend decades of expensive drug policy focused on over-incarceration. 

Despite both reforms, however, the administration has not applied that logic to release most inmates stuck in jail for the same offenses.

Mark Osler, a former federal prosecutor, says the administration should reform its incarceration approach “at both ends” of the prison pipeline.

Prosecutors are now reducing harsh sentencing on the way into prison, Osler told MSNBC, but “at the other end, the executive himself has discretion under the pardon power.”

Over five thousand people are still serving time under the crack laws alone, says Osler, who now runs a commutation clinic, even as those very sentencing laws have “been undone by Congress and rejected by all three branches of the government.”

Jacob Sullum, a criminal justice expert and author of “Saying Yes: In Defense of Drug Use,” says the president’s policies on sentence reform reflect the view “that many of these federal prisoners don’t belong in prison, that they are serving sentences that are egregiously long.” Obama has the power, Sullum told MSNBC, “to free some of those people and remedy some of these injustices–he doesn’t need permission from anyone, he doesn’t need judicial review, he doesn’t need Congress.  He can release all those non-violent offenders he says don’t belong in prison.”

How would that work?

The pardon attorney could fast-track requests under that category of non-violent drug offenses.

Or the president could issue a wider commutation or pardon for inmates in that category that have served a certain portion of their sentences.  And he could appoint a new pardon attorney to head the initiative, rather than continuing to rely on Rodgers, a holdover from the Bush administration.  (Rodgers is a former prosecutor from the DOJ’s Narcotic and Dangerous Drug Section.) 

President Ford famously granted conditional amnesty to thousands of Americans who evaded the draft, if they committed to public service.  “We don’t remember that as a scandal,” says Osler. “That tells you something–it healed some of the divisions that followed the war on Vietnam the same way we need to heal some of the division now in the war on drugs.”

The potential for scandalous pardons, however, has reportedly contributed to Obama’s hesitance.

Former White House counsel Abner Mikva, a respected legal expert and former mentor to Obama in Chicago, said the president has long been concerned about the fallout from President Clinton’s pardon of a well-connected political patron, Marc Rich.  Mikva told Linzer he once had a “lengthy” talk with Obama about the controversy.

The White House declined an interview request to discuss the current record. Administration officials have previously said the president takes the process and pardon power “very seriously.”

It is true that some pardons and commutations have flowed to more privileged inmates, or those with influential backers.

Over the past decade, for example, white convicts “have been nearly four times” as likely to receive pardons as minorities. 

For his part, Obama’s only commutation came after lobbying from Illinois Senator Dick Durbin. Durbin called for the release of Eugenia Jennings, who had already served 11 years for a non-violent drug offense–selling about 14 grams of crack to an informant. Jennings suffered from terminal leukemia, and the mother of three still faced another eleven years in prison when Obama commuted her sentence.

If there are disparities of race and power in the pardon process, the most logical remedy is to revamp the program, not abdicate the power altogether.  In fact, in today’s political environment, as the political parties clash over spending but focus less on the policy and politics of drug use, it’s not even clear that an assertive pardon program would draw much fire.

Sullum, who writes for the libertarian Reason magazine, says he’s not sure what the “political consequences” of pardon reform would be in Obama’s second term.

“I assume that he has higher priorities, and he thinks that if he does this, he might get a lot of flak,” Sullum says.  “I’m not sure that he will–look at the reaction to Eric Holder’s speech [rolling back drug sentencing], there was not a lot of criticism.  There was not a lot of backlash against the idea that we are sending too many people to prison for too long.”