Pubdate: Wed, 25 Dec 2013
Source: Portland Press Herald (ME)
Copyright: 2013 Bloomberg News
Author: Walter Olson
Note: Walter Olson is senior fellow at the Cato Institute, a 
libertarian think tank, and the author of several books on the 
American legal system. He wrote this for Bloomberg News.


Rigid Drug Sentences Alone Account for Far Too Many Inmates WHO've 
Been Held for Far Too Long.

WASHINGTON - In the same news cycle when Russian President Vladimir 
Putin said he would free more than 20,000 inmates from his country's 
prisons, President Obama announced a rather less grand gesture of 
clemency. He commuted the sentences of eight people convicted of 
crack-cocaine offenses  all of whom have served at least 15 
years  and used his pardon power to erase the criminal records of 13 
miscellaneous ex-offenders.

Even this mingy and belated use of presidential clemency power was 
enough to make news. The American Civil Liberties Union noted that 
until then, "Obama had only pardoned 39 people and commuted only one 
sentence, which is the fewest by any president in recent history."

According to The Washington Post, one of the administration's motives 
was, oddly, its wish to help "eliminate overcrowding in federal prisons."

If that's the case, Obama is trying to bail out Lake Michigan with a 
paint can. The federal prison population has increased by more than 
700 percent since 1980 and the number of inmates now exceeds the 
Bureau of Prisons bed capacity by 35 percent to 40 percent, requiring 
the use of contract prisons, halfway houses and other makeshifts.

Even if the president could free another batch of eight prisoners 
every week for a year, his mercy will still have touched only about 
one-fifth of 1 percent of the inmates in federal prisons. The 2 
million serving time at the state level will need to look to their 
governors for relief.

The War on Drugs is the single biggest driver of our bloated prison 
population, especially at the federal level, where thousands are 
serving sentences under mandatory-minimum laws that put low-level 
nonviolent offenders behind bars for decades, or even life.

Although Congress finally acted in 2010 to reduce the notorious 
crack/cocaine disparity responsible for many insanely long sentences 
in part because of years of complaint from judges loath to be parties 
to injustice - it declined to apply the changes retroactively to 
sentences already handed down.

Continuing to hold prisoners such as Clarence Aaron of Mobile, Ala., 
one of those on Obama's list, would be unjust even if prison spaces 
were available. Aaron was sentenced to three life sentences without 
parole for his role on the periphery of a drug deal when he was a 
college student. A model inmate, Aaron saw the fight for his freedom 
taken up by journalists, lawyers and others for more than a decade. 
Millions of words were expended and thousands of calls made on his 
behalf. But not every deserving case can command such a campaign.

With one notorious exception - former President Clinton's binge of 
pardons as he left office in 2000, including one for mega-donor 
financier Marc Rich - the drought of presidential clemency can be 
traced back 25 years. Yet, there is no shortage of prisoners being 
held long after they have met reasonable objectives of deterrence, 
rehabilitation and incapacitation.

It's baffling that over a quarter-century in which presidents of both 
parties have relentlessly sought to assert powers the Constitution 
never granted them they should be so meek about using the pardon 
powers that our constitutional system unquestionably gives them. 
Although it might be politically unwise for presidents to use this 
power, hardly anyone denies that pardons lie within their 
constitutional authority, even in the most controversial cases, such 
as President Ford's pardon of former President Nixon and Clinton's 
pardon of Rich.

Critics, including a team of journalists that investigated 
presidential pardons for ProPublica, say the shortage of clemency 
reflects a structural problem. In a well-meaning reaction to the 
Clinton pardon scandal, and in hopes of removing political 
gamesmanship from the process, President George W. Bush entrusted 
great discretion to a newly created Office of the Pardon Attorney 
within the Department of Justice.

That office has functioned less as a neutral referee than as a goalie 
that hardly ever lets a shot through. Since 2008, the office has been 
headed by a former drug prosecutor and military judge who was sharply 
criticized in an inspector general's report last winter for 
inaccurately relaying the circumstances of Aaron's case, reducing his 
chances for clemency.

Another shake-up of pardon procedures is overdue. The initiative 
needs to come from the White House, and commuting eight sentences 
barely counts as a start.

- - The Washington Post News Service with Bloomberg News
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