Mr. Pres­i­dent, you’re do­ing clemency wrong

Com­mut­ing sen­tences isn’t about the law. It’s about mercy, writes re­form ad­vo­cate Dennis Cau­chon.

The Washington Post Sunday - - OUTLOOK - editor@clemen­cyre­port.org Dennis Cau­chon, a for­mer na­tional re­porter for USA To­day, is editor of the Clemency Re­port, which iden­ti­fies pris­on­ers de­serv­ing shorter sen­tences.

Pres­i­dent Obama’s his­toric visit to a fed­eral prison on Thurs­day shows that his head and his heart are in the right place on crim­i­nal jus­tice re­form. As he said a few days ear­lier, “Mass in­car­cer­a­tion makes our coun­try worse off, and we need to do some­thing about it.”

The pres­i­dent over­hauled the clemency process in April 2014 to much fanfare. He said that he wanted more wor­thy ap­pli­ca­tions on his desk and that he was ready to act ag­gres­sively to ap­prove them. But it’s hard to square that rhetoric, andthe com­pas­sion Obama demon­strated by meet­ing with pris­on­ers this past week, with Mon­day’s miserly an­nounce­ment that he’d granted clemency to 46 peo­ple. Dur­ing his en­tire pres­i­dency, he has short­ened just 89 sen­tences. That’s more than his re­cent pre­de­ces­sors, but it’s still an ab­surdly low num­ber, and his stingi­ness is at odds with his pub­licly stated goals on crim­i­nal jus­tice re­form.

The fed­eral prison pop­u­la­tion hit a record high un­der Obama — 219,298 peo­ple in 2013, about 10,000 more than when he took of­fice— so the pres­i­dent’s hands are not clean in the mass-im­pris­on­ment prob­lem he seeks to cor­rect with small ges­tures that make no vis­i­ble dent. But over-im­pris­on­ment is a so­cial and moral prob­lem, not just a le­gal one. Obama’s new clemency pro­gram isn’t work­ing — and prob­a­bly can never work — be­cause he runs re­quests through the gov­ern­ment’s le­gal bu­reau­cracy: the White House Of­fice of Gen­eral Coun­sel and the Jus­tice Depart­ment. The pres­i­dent, a lawyer him­self, has or­dered cum­ber­some le­gal re­views based on six new cri­te­ria that have made the process grind­ingly slow and un­pro­duc­tive.

But clemency is not a le­gal func­tion, and it shouldn’t be treated that way. The Con­sti­tu­tion’s framers de­signed clemency tobe ex­tra-le­gal— a check on the le­gal sys­tem, not part of it. As Alexan­der Hamil­ton put it in the Fed­er­al­ist Pa­pers, clemency ex­ists for rea­sons of “hu­man­ity and good pol­icy” and to pro­vide “easy ac­cess to ex­cep­tions.” The founders gave the pres­i­dent solo, un­fet­tered clemency “re­spon­si­bil­ity” (Hamil­ton’s word) be­cause gov­ern­ments nat­u­rally tend to make crim­i­nal law overly se­vere, and one per­son “ap­pears to be a more el­i­gi­ble dis­penser of the mercy of gov­ern­ment, than a body of men.”

Fed­eral pris­ons are full of hu­man be­ings who need the pres­i­dent to ex­er­cise com­mon sense and hu­man­ity, not his pow­ers of le­gal scru­tiny. The pres­i­dent is im­pris­oner in chief, a spe­cial role akin to com­man­der in chief. Clemency is at­tached to his ex­ec­u­tive au­thor­ity over fed­eral po­lice pow­ers and the prison sys­tem. Obama is sup­posed to con­sider ev­ery­thing — race, moral­ity, fair­ness, so­cial har­mony, ge­og­ra­phy, or­phaned chil­dren, so­ci­ety, pol­i­tics — when mak­ing clemency de­ci­sions. Run­ning clemency, as Obama does, as another rinse in the le­gal laun­dry cy­cle is an ab­ro­ga­tion of his con­sti­tu­tional re­spon­si­bil­ity.

So how could Obama bet­ter dis­pense mercy, as Hamil­ton in­tended? In­stead of tweak­ing clemency, he should make big changes.

First, he could trans­fer clemency re­views out of the Jus­tice Depart­ment and put them in the Depart­ment of Health and Hu­man Ser­vices. Tell HHS’s public health spe­cial­ists to make rec­om­men­da­tions based on Hamil­ton’s con­sti­tu­tional cri­te­ria: “hu­man­ity and good pol­icy.” Use the depart­ment that spe­cial­izes in in­di­vid­ual and so­cial well-be­ing to re­store Hamil­ton’s vi­sion of clemency’s ex­tra-le­gal na­ture. The Jus­tice Depart­ment’s role should be lim­ited to com­ments, the same as other stake­hold­ers. The depart­ment that pros­e­cuted a case and ad­vo­cated for a sen­tence is not the ap­pro­pri­ate one to con­duct a neu­tral clemency re­view.

Next, Obama should grant clemency to broad cat­e­gories of pris­on­ers, rather than slog­ging through spe­cific cases. The prison pop­u­la­tion is too big for jus­tice to ad­vance one case ata time. There’s prece­dent for do­ing it this way. Jimmy Carter did not name each Viet­nam draft-dodger when he granted amnesty in 1977, wip­ing out tens of thou­sands of crim­i­nal con­vic­tions. Obama could de­clare: No mar­i­juana sen­tence shall be longer than 10 years; crack co­caine sen­tences shall be equal to those for pow­der co­caine; all non­vi­o­lent fed­eral drug sen­tences shall be re­duced by 20 per­cent. He doesn’t have to wait for Congress to curb prison spend­ing, give re­prieves to peo­ple still serv­ing racially bi­ased crack sen­tences or ac­com­plish most of his other crim­i­nal jus­tice goals.

Obama should set a nu­mer­i­cal tar­get for com­mu­ta­tions, and a big one. Don’t just ac­cept what­ever the lawyer ma­chine ex­trudes. Give staff a goal, say 1 per­cent of sen­tences— about 2,000 peo­ple an­nu­ally. That may seem like a star­tlingly large num­ber to those with no con­cept of how the fed­eral prison pop­u­la­tion has soared. In truth, it’s mod­est. If Obama com­muted 2,000 sen­tences this year and next year to time al­ready served, he would still leave of­fice with more fed­eral pris­on­ers than when he en­tered the White House. Even bet­ter, the pres­i­dent should set a goal for the max­i­mum num­berof fed­eral in­mates by the time he leaves — say, 200,000 — and tell staff to get him the best cases to hit the tar­get. Man­ag­ing the prison pop­u­la­tion is a proper ex­ec­u­tive de­ci­sion. Only in gov­ern­ment do re­sults seem sec­ondary to process.

Clemency can be a prison man­age­ment tool, too. The Bureau of Pris­ons should have each war­den rec­om­mend de­serv­ing in­mates. Four rec­om­men­da­tions per war­den would equal about 500 clemency can­di­dates per year. Pris­oner be­hav­ior would im­prove im­me­di­ately and dra­mat­i­cally with this pow­er­ful in­cen­tive to win free­dom. Congress fool­ishly abol­ished pa­role for fed­eral crimes in 1984, but pris­on­ers need in­duce­ments to change. Let the clemency com­pe­ti­tion be­gin!

Fi­nally, Obama should open the process be­yond the nar­row con­fines of the Of­fice of the Par­don At­tor­ney. Ask judges, gover­nors, mem­bers of Congress and oth­ers for rec­om­men­da­tions, and for­mal­ize a broad re­view process. Some judges have al­ready writ­ten to the pres­i­dent, ask­ing that he grant clemency to de­fen­dants whom they were forced to sen­tence to shame­fully long manda­tory terms. Now, these letters gather dust in Jus­tice Depart­ment clemency files. Why not ask each fed­eral court dis­trict to rec­om­mend one clemency case a year? Tell law­mak­ers to do the same, and make them re­spon­si­ble for vet­ting their can­di­dates. Chal­lenge each U.S. at­tor­ney to comb his or her files for one de­serv­ing case per year. Ditto the NAACP and other out­side ad­vo­cacy groups. Crowd­source the re­view process, in­stead of keep­ing it in the bu­reau­cracy’s lock­box.

Obama’s nar­row, le­gal­is­tic ap­proach to clemency blocks his own broad re­form goals and ex­cludes many of the most de­serv­ing pris­on­ers. One heart­break­ing ex­am­ple of who doesn’t make the cut: An­to­nio Bas­caró, 80, the long­est-serv­ing mar­i­juana pris­oner in U.S. history.

Bas­caró is a won­der­ful man with a great fam­ily whom I’ve come to know through my work with the Clemency Re­port, which writes about pris­on­ers who de­serve free­dom. He has been be­hind bars for 35 years for a pot con­vic­tion. He wasn’t a king­pin, vi­o­lent or no­to­ri­ous. He was a util­ity man in one of many groups of Cubans who used fish­ing boats to trans­port mar­i­juana from Colom­bia to Florida dur­ing the 1970s to be smoked by col­lege kids (like me). The leader of his en­ter­prise was re­leased in 1994. The gringo who bought all the weed and dis­trib­uted it na­tion­wide was re­leased in 1996.

Only Bas­caró, now us­ing a walker and a wheel­chair to get around prison, is still be­hind bars. The tech­ni­cal rea­son is that he has a fluky “old law” sen­tence and isn’t sched­uled for re­lease un­til 2019, at age 84. Obama’s clemency process is de­signed to fo­cus on the le­gal dross of this an­cient pot case, not the in­jus­tice of a harm­less oc­to­ge­nar­ian spend­ing his 35th year in prison for no good rea­son, in an era when four states and Washington, D.C., have le­gal­ized mar­i­juana.

Obama has the power to do what Hamil­ton en­vi­sioned: let Bas­caró spend to­mor­row night in the sub­ur­ban At­lanta home of his daugh­ter Aicha. In­stead, the old man will spend another one of more than 12,600 nights, and count­ing, in a prison cell be­cause the pres­i­dent mis­tak­enly thinks he needs a le­gal al­go­rithm to know right from wrong.

“Hu­man­ity and good pol­icy” is not a le­gal con­cept. But it is why Ge­orge Washington par­doned Whiskey Re­bel­lion par­tic­i­pants. It is why Franklin Roo­sevelt gave clemency to peo­ple con­victed of al­co­hol of­fenses dur­ing Pro­hi­bi­tion and why John Kennedy com­muted the manda­tory min­i­mum sen­tences of many drug of­fend­ers. It is why var­i­ous pres­i­dents gave pi­rates, bank rob­bers, po­lyg­a­mists and oth­ers sec­ond chances. And it’s why Obama should send An­to­nio Bas­caró a mes­sage to­day through Cor­rLinks, the fed­eral pris­oner e-mail sys­tem, say­ing: “I apol­o­gize for the de­lay, but I have good news.”

SAUL LOEB/AGENCE FRANCE-PRESSE VIA GETTY IM­AGES

Pres­i­dent Obama tours the prison in El Reno, Okla., on Thurs­day to high­light his push for crim­i­nal jus­tice re­form. He was the first sit­ting pres­i­dent to visit a fed­eral prison.

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