Monday, February 25, 2008

The President: Call for Clemency

Today's Dallas Morning News features an editorial by two law school professors who are calling on the President to exercise the clemency power in particular kinds of cases. Among other things, Marc Miller (University of Arizona) and Steven Chanenson (Villanova) write:

In 2001, President-elect Bush said he believed that "the powder-cocaine and the crack-cocaine penalties [should be] the same. I don't believe we ought to be discriminatory." Yet his Justice Department not only opposed both of the commission's recent crack decisions but is seeking legislation preventing the new rules from applying retroactively in many cases.

If Mr. Bush still believed what he said in 2001, he could deal with retroactivity in a streamlined fashion by exercising his clemency power. This would address the workload problem that troubles his Justice Department. More importantly, the president would make a dramatic statement about racial justice and perhaps goad a recalcitrant Congress into fixing the underlying racial inequity in federal drug penalties.

But any suggestion that presidents make use of their constitutional clemency power has become deeply suspect. The federal pardon and clemency power has fallen from grace. Critics believe pardons and commutations have become partisan tools cynically wielded to benefit primarily the rich and powerful.

There is, however, another tradition of pardon and clemency: Presidents over American history have used this constitutional power to fix and publicly address occasional systematic injustices. But using the pardon and clemency power to administer retroactive application of the modest new crack guidelines would only be a half-step. The need remains for a larger congressional fix.

A systematic use of the clemency power in crack cases would offer a lesson that it is possible to lead responsibly on issues of race and criminal justice. Our current president – or the next president – could combine that power with the presidential bully pulpit and send Congress a clear message that it needs to clean up its old mess by fixing the crack-powder disparity once and for all.

See complete editorial here.

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