Sunday, December 04, 2011

Bush Pardons demonstrate racial disparity, says Washington Post

The Washington Post has a huge front-page story analyzing pardons by President George W. Bush from 2001 to early 2009.

The story does not look at commutations of sentence, typically an early release from prison such as the pre-Christmas 2000 releases of Kemba Smith and Dorothy Gaines by President Bill Clinton. Pardons and commutations of sentence (reprieves) are both elements of the broad power granted to the President under Article II, section 2 of the U.S. Constitution.

The Criminal Justice Policy Foundation has been advocating for the President to increase the number of commutations of sentence since 2000 when it created the Coalition for Jubilee Clemency, and provides advice to prisoners and their families on its website.

Pardons almost never shorten the sentence. Typically they are granted to restore rights to vote, possess firearms, serve on juries, or obtain a business or other license. The published guidelines of the Department of Justice on the pardon process provide that petitions for pardons are not considered until at least five years have passed since a person was released from confinement, or if no prison term was imposed, at least five years from the imposition of sentence. No pardon will be considered for a person on probation, parole or supervised release.

The granting of pardons is important to individuals and can relieve ex-offenders of serious burdens. They are important politically, for example, when granted to former President Richard Nixon by President Gerald Ford, or to former White House aide Lewis "Scooter" Libby by President George W. Bush. Large scale pardons have been very important for national healing after wars, such as the pardons of Confederate officials, officers and soldiers after the Civil War, and deserters, war protestors, draft resisters, etc. after wars in the Twentieth Century.

But today, the critical issue in the proper use of this power is to commute sentences. The federal prison population was about 25,000 prisoners for most of the Twentieth Century, but began to grow in the 1980s as the war on drugs expanded under President Reagan, and it exploded after the 1986 Anti-Drug Abuse Act.

Today there are almost 200,000 convicted Federal prisoners, over 100,000 of them serving drug sentences. Most commentators -- especially most Federal judges (as surveyed by the U.S. Sentencing Commission) -- think that these sentences are too harsh, much too harsh.

The President would be serving the interests of justice by commuting the sentences of thousands, if not tens of thousands of sentences. This would save hundreds of millions of dollars in the costs of operating the Federal Bureau of Prisons. Instead the President is asking Congress to fund hundreds of millions of dollars of new prison construction.

It would be interesting to see The Washington Post analyze the use of this power to commute sentences.

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