Wednesday, March 3, 2010

Insights: Dear Mr. President, Yes You Can

 Mark W. Osler is Professor of Law, Baylor University, where he has taught since 2000. He is a graduate of the Yale Law School and former federal prosecutor (1995-2000). Professor Osler is an expert on sentencing and, among other things, his writings focus on the problem of inflexibility in sentencing and corrections and the role of mercy in a system that places so much emphasis on retribution. Professor Osler has testified before the U.S. Sentencing Commission (2004) and in Congress (2009). He recently served as lead counsel in Spears v. United States, 129 S. Ct. 840 (2009) in which the Court held that sentencing judges can categorically reject the 100:1 ratio between crack and powder cocaine in the federal sentencing guidelines.

PardonPower: Tell us what we need to know about the "Dear Mr. President, Yes You Can" project and describe the role that you play in it?

Prof. Osler: In January of 2009, we won the Spears case in the Supreme Court, which held that sentencing judges could categorically reject the harsh sentencing guidelines for crack cocaine. The day the opinion came down, uber-blogger Doug Berman (Sentencing Law and Policy) called and asked, “so what comes next?’ This is what came next, and it was a natural fit. The crack guidelines were too harsh, according to the Supreme Court, the Obama Administration, and the sentencing commission. It was the perfect opportunity to use the commutation power to address cases where people were over-sentenced under these now-rejected guidelines. Last April, my student Sid Earnheart did much of the groundwork on the project and we partnered with the ACLU’s Drug Law Reform Project.

The project has two policy points. The first is very simple, but would require a profound change in the way the pardon power has been used. Here it is: Pardons and commutations should be used in a principled way. That is, the administration should publicly articulate a concrete and meaningful principle or principles to guide pardons and commutations, and then act on those principles, rather than employ the messy and overly political ad hoc process that has been in place for decades now.

The second point is this: Commutation decisions should be directed by a principle this administration has already articulated—that the crack guidelines have been too harsh. In service of these two ideas, we are identifying crack cases for which commutation would be appropriate and petitioning for those individuals. The Hasan case is the first of these petitions.

PardonPower: Recently, the Project has done an excellent job in making the public aware of the Hasan case. Is there a list of other cases that will receive your attention down the line? Who, or what determines which individual cases you will focus on?

Prof. Osler: The excellent staff at the ACLU gets all the credit for making the Hasan case known, and for developing that petition. We do have other cases in the pipeline now, which will be petitioned over the next year or so. We are focusing on crack cases because that underlines our point about the principled use of commutation. The decision on what cases to take will be made by myself and Jay Rorty at the ACLU, and we have partnered with law school clinics and others in preparing the petitions. It will not be a huge group of petitions, but enough to make our point.

PardonPower: What does the average American need to know about the problems your organization sees with respect to sentencing? Are the convicted not getting the sentences they deserve?

Prof. Osler: Intentionally, we have not chosen a sentencing issue on which nearly everyone agrees there is a problem—that is, with crack/powder we are starting with a principle that this administration has already embraced.

The problem with over-sentencing crack defendants is that creates huge social problems without fixing any problems. Because crack is made from powder cocaine, and usually is converted into crack once in the hands of the least culpable person, we create an incentive to incarcerate in large numbers the people who make the least difference and are most easily replaceable. The Obama administration gets this. We are asking them to act on it through the Constitutional power of commutation.

PardonPower: A recent ACLU description of the project mentions an interest in "historical injustices." Can you tell us more about what might entail?

Prof. Osler: As described above, the crack sentencing guidelines have been a historical injustice. In the past, the principled uses of the pardon power have been used to address such injustices, such as President Kennedy’s use of the power in narcotics cases of his own era. That is a far cry from the last-minute political favors that have destroyed the credibility of this Constitutional power in the public’s mind.

PardonPower: So give us a ball park estimate, if at all possible. Just how many individuals might be adversely affected by crack sentencing guidelines?

Prof. Osler: If the crack guidelines and mandatory minimums have systemically over-punished crack offenses, to a degree greater than the corrections allowed so far, that means that tens of thousands of defendants have been subjected to unjust sentences. In 2006, for example, about 5,000 federal defendants were sentenced for trafficking crack, and the majority of those would have been sentenced according to a mandatory minimum based on the 100-to-1 ratio between powder and crack cocaine.

PardonPower: Just to make sure we are understanding the strategy correctly, each individual case that your organization highlights will be accompanied by a formal petition for executive clemency?

Prof. Osler: That is our plan, though we will not be able to handle more than a handful of the many worthwhile cases.

PardonPower: Will any effort be made to assist individuals in filing formal applications for clemency? Or would that be beyond the scope of your activities?

Prof. Osler:That’s not a part of the plan right now, simply because of resources. I literally have no funding—I am doing this as a pro bono project outside of my usual teaching and writing.

PardonPower: Some of these issues have been around so long, and have received a healthy amount of scholarly attention. Are you aware of any research or efforts to ascertain how many members of Congress are sensitive to these problems? Do you have any intuition about this?

Prof. Osler: The underlying issue of drug sentencing is getting some attention in Congress, though there has been little action of late as the health care debate seems to have sucked all the oxygen out of the House and Senate chambers. Senator Jim Webb of Virginia has proposed a comprehensive look at criminal law issues, but that idea seems to have stalled. There is almost no Congressional interest in pardons and commutations that I can discern, but that may be appropriate as it is a purely executive power.

PardonPower: You are surely as disappointed as we are that the president, to date, had not used the pardon power. What do you say to the critic, who argues pardons are just not (or shouldn't be) all that important?

Prof. Osler: Pardons and commutations are a tool, like a hammer or a warship. It is true that such things aren’t important—until you need them to fix a problem or protect your society from harm. If such tools can be used to fix a problem, they should be used. Given the legacy of over-sentencing crack cases, it is time to use this tool to fix the problem we nearly all agree exists. For additional information, go here.

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