So Far, Obama Has Failed on Clemency

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The Washington Post reported last week that President Obama has granted fewer pardons than any president since John Adams, and that he risks going down in history as "merciless." The president has so far granted 70 pardons. But he has denied 1,629 pardon petitions, more than five of the six previous presidents. Another 3,444 requests have been "closed without presidential action." In other words, they were simply ignored.

Obama's inaction on pardons is in addition to his equally hard-core inaction on commutations. Despite the fact that the White House announced two years ago, with much fanfare, the "Clemency Project 2014," which was supposed to streamline commutations, the president has denied 8,123 requests for commutation. That's a new record.

Both Obama and then-attorney general Eric Holder said in 2014 that the president would make liberal use of his power to commute the sentences of federal prisoners who deserved relief. Indeed, the Justice Department set criteria for prisoners who ought to be released. Holder encouraged prisoners to apply if they had sentences significantly longer than what they would have received if they had committed their crimes today, if they had no history of violence, if they had no guns involved in their cases, if they had behaved in prison, if they had served at least 10 years, and if they had served at least 50 percent of their sentences.

Obama has publically expressed regret at his own failure to use his executive powers to pardon those deemed worthy of a second chance or to grant commutations to those who have been swallowed up by the justice system, especially in the ill-conceived "war on drugs." He told the Marshall Project in 2014 that there were thousands of prisoners who deserved relief, and he said, "That means we have to step up the process."

That sounds great. But the program has, so far, been a disaster. Almost nobody has been released early. Most cases are assigned to volunteer lawyers and law students who have no experience in pardon and clemency law or even in dealing with the federal system in the first place. More than 8,000 of the 44,000 applications have not even been referred to the Justice Department for review, while another 9,000 cases are stuck in the DOJ's bureaucratic black hole.

And how many prisoners have actually had their sentences commuted, of the 44,000 applicants? Only 187.

There are a myriad of ways in which Obama can right this wrong. First, he can simply take executive action with the stroke of a pen, as was recommended during his first term by White House counselor Greg Craig, thus freeing every federal prisoner who meets the Clemency Project's criteria. That would be easy. And the president doesn't have to face the voters again, so there would be no political fallout, at least not for him.

Second, Obama could, and should, provide the Justice Department with the resources necessary to process every last clemency application. If the policy determines that people are in prison unjustly, then there is no question that action has to be taken. Remember the legal maxim, "Justice delayed is justice denied." It is being denied to thousands of prisoners right now.

Third, the Office of the U.S. Pardon Attorney, which has jurisdiction over processing pardon and commutation applications, must be moved out of the Justice Department and into an independent body, such as a stand-alone entity within the White House. As things are now, federal prosecutors have an inordinate influence in the Pardon Attorney's office. But by their very nature, prosecutors are opposed to clemency. Many equate it with the president asking them to tell the public they made a mistake prosecuting the case in the first place. "Sorry. My bad! You can go home now."

Obama has precious little time left in which to act. If he's serious about clemency, about mercy, he has to do something immediately. Lives depend on it.

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