Mimesis Law
23 October 2019

Pardon Me, Mr. President, But Congress Says You’re Doing It Wrong

September 20, 2016 (Fault Lines) – The United States Constitution contains a provision that makes our President the most powerful figure in the federal criminal justice system. Article II, Section 2, Clause 1 reads:

The President…shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

Prosecutors can stack charges, and pick and choose between the various available mandatory minimums. Judges can sentence defendants to mercifully light or staggeringly heavy amounts of time in federal prison. The United States Supreme Court can, with the stroke of a pen, tell us exactly what those Amendments actually mean.

But the President has the ultimate power. The power to grant a reprieve. He can shorten a sentence, or make a conviction go away. There are almost no limits to this power. Other than impeachment, there is nothing you can do in the federal system that the President can’t save you from.

A recent article from USA Today seems to make two claims regarding President Obama’s use of the pardon power: he isn’t letting people go right away and he is using his pardon power at an unprecedented level. Of course, like most mainstream media outlets, the article really misses the point of what the President is doing.

President Obama is commuting sentences. So the terms are clear, that is not the same as pardoning someone. They are still convicted, but they get out of jail early. The first few rounds of commutations released prisoners a few months from the commutation date. This allowed the setup of supervision programs after they were released. USA Today says the most recent rounds of commutations don’t all call for an immediate release.

For 126 federal inmates who received presidential clemency last month, the good news might have come with a dose of disappointment.

President Obama had granted their requests for commutations, using his constitutional pardon power to shorten their sentences for drug offenses. But instead of releasing them, he left them with years — and in some cases, more than a decade — left to serve on their sentences.

The decision to commute these sentences isn’t random. It reflects the President using his constitutional power to make the sentences fairer. Before your head explodes over Obama doing his own thing, his reasoning behind the commutations isn’t random, either.

Through lawyers in the Justice Department and the White House Counsel’s Office, the president is effectively recalculating the sentences using the federal guidelines in effect today — as opposed to the harsher penalties mandated by Congress in the 1980s and ’90s.

According to a former pardon attorney, this is a unique way of using this presidential power.

“There are a number of cases where it’s a genuine re-sentencing. It’s unprecedented,” said former pardon attorney Margaret Love, who served under Presidents George H.W. Bush and Clinton. “That signals to me that the power is being used in a way it’s never been used before.”

USA Today isn’t quite clear on whether it is criticizing the President or not. Representative Bob Goodlatte, on the other hand, was very clear when whining opining about Obama’s use of his power to grant federal prisoners reprieve.

“To impose these things, and to have the commutation take effect after he leaves office  — and even after the presidency of someone who succeeds him  — seems inappropriate to me,” said Rep. Bob Goodlatte, R-Va., chairman of the House Judiciary Committee.

“He has effectively set himself up as a judge, reviewing thousands of cases where they’ve been prosecuted, convicted, sentenced and appealed beyond the district court level. And he’s undercut all that work by commuting their sentences,” Goodlatte said. “I think the president is taking a misguided approach to this issue when he tries to set himself up as a super-judge who would oversee the actions of a separate branch of government.”

It’s unfortunate Goodlatte is the Chair of the House Judiciary Committee, since he doesn’t have much understanding of the judicial system. At the heart of all that work he talks about is the problem with the federal criminal justice system. In a misguided attempt to save the world from drugs, Congress repeatedly imposed harsher and harsher laws to battle those drugs. Congress won’t allow even research on gun violence, but it fancies itself quite the expert on that violence as long as it has something to do with drugs.

There is an unbelievable sense of irony with Goodlatte calling the President misguided and criticizing Obama for expanding his powers beyond the executive branch. Congress has always held the keys to criminal justice reform. It started the problem and it can fix it. But that doesn’t seem to be much of an option. The most important role of a Congressman is to pass sensible laws get re-elected. Nobody ever won an election on criminal justice reform. The people want blood, dammit. And the political panderers in Congress are all too happy to oblige.

So the President is doing what Congress refuses to do. He is using a power granted to him by the United States Constitution to fix a problem Congress can’t seem to handle. President Obama is making things a little fairer. If that steps on Congress’s feet, or some judges’ feet, too bad. You had all the chances in the world to address this issue and you just ignored it.

Despite the article and Goodlatte’s criticism, it doesn’t look like President Obama is actually doing anything all that extraordinary. The only difference may be that he is actually using his commutation power.

“Is Obama doing it at some unprecedented level? I don’t know. Maybe,” said P.S. Ruckman Jr., a political scientist who has analyzed data on presidential clemency back to George Washington.

“But I am not so sure what to make of that either,” he said. “That’s what checks and balances are all about.”

Exactly. Since Congress and the judicial branch have failed to bring any semblance of balance to the federal criminal justice system, President Obama is acting as the check. Good for him.

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  • The Commuter’s Dilemma | Simple Justice
    17 October 2016 at 8:12 am - Reply

    […] was slow in starting, but picked up steam, and some applause, when President Obama used his constitutional authority to commute sentences.  Not pardon, of […]