Obama's Pardons

The White House "live" internet feed at 10:30 am EST, Nov. 23, 2011 will feature President Obama pardoning turkeys. (The image is from last year.) To defuse the criticism that he is misusing his power under Article II, section 2 of the U.S. Constitution to pardon turkeys and not any of the 200,000 human beings in federal prison, he pardoned five (that's right, five) persons of old crimes this week, and shortened the sentence of a mother serving 22 years in prison for selling 13 grams of crack cocaine about ten years ago.

Pardon me, but I won't defuse my criticism! Article II, section 1 of the Constitution says that there shall be a President and how the President is elected. Section 2 spells out the powers. The first sentence has the three powers that the framers of the Constitution recognized were most important of the new executive: Commander in Chief of the Army and Navy and military forces; directing the executive departments; and "Power to grant Reprieves and Pardons for Offences against the United States."

The framers of the Constitution saw a critical role for the President in the justice system. Congress writes the laws (Article I). The executive takes care that the laws be faithfully executed, that is crimes are investigated and prosecuted (Article II, section 3). The "trial of all Crimes" shall be conducted by the judicial branch (Article III, section 2). And the President shall correct injustices through the Reprieve and Pardon power.

Sadly, while Obama freely uses his Article II, section 2 power as Commander in Chief (for example, to bomb Pakistan, Libya, or Yemen without explicit authority from Congress), he uses his Article II, section 2 power to correct injustice with a stinginess that is either uncaring or cowardly.

In August 2010, Congress sent Obama the Fair Sentencing Act of 2010 to tweak the mandatory minimum sentences for crack cocaine enacted in the frenzy after Len Bias died from cocaine in the summer of 1986. Congress recognized that the sentences that had been imposed for the previous 25 years were unjustly long. Obama signed the bill. Tens of thousands of people are serving these unjustly long sentences for crack and other drugs.

There are now 200,000 people serving sentences in federal prison, the largest prison system in the free world. Half of them are serving drug sentences. Most of them are serving mandatory minimum sentences that most judges believe are "manifestly unjust." Many of them have already served decades in prison -- very long sentences -- and yet are facing decades, or even a life time, for being small-scale dealers but sentenced to king-pin sentences because of Congress's hasty, numerical blunders in 1986. (I was the counsel to the House Judiciary Committee who processed that legislation. I was at the table and on the floor of the House when these laws were written and passed. I know exactly how badly they were written and how wrong they are!)

In three years in office, Obama has been able to find one person, only one person, in that 100,000 who he thought deserved a shorter sentence. Obama knows about the injustices. He is a former law professor. He cosponsored legislation as a Senator to fix these mandatory minimums. Either he now simply doesn't care to do anything about it, or he is afraid of the potential that someone he might free might commit another crime and it will be turned into a "Willie Horton" moment. To protect his political butt, Obama seems to be perfectly prepared to tolerate injustice on a massive scale. For shame!

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