Tuesday, November 20, 2012

Osler: Pardon People, Not Turkeys

In the Washington Times, Marc Osler notes, "President Obama has largely ignored his duty to consider appropriate cases for clemency" but argues that he "should announce a broad program to commute the sentences of thousands of federal prisoners serving sentences related to crack cocaine." Says Osler:
All three branches of government have already declared these sentences to be unfair and wrong ... For more than two decades, hastily conceived and overly harsh mandatory minimums and federal sentencing guidelines exacted the same sentence for possessing or selling five grams of crack as they did for selling 500 grams of powder cocaine. The twisted logic behind this 100:1 ratio doesn’t take long to refute, since crack is made from powder cocaine, usually by street sellers. Thus, the harshest sentences were borne by the least culpable members of the distribution chain — those at the very bottom. Almost always, too, those receiving these lengthy sentences were black. Now, all three branches of government have seen the light and rejected this failed scheme. Mr. Obama decried the 100:1 ratio both as a candidate and once in office, urging equalization of sentences for crack and powder cocaine. Courts, too, saw the fallacy in the law, and in 2009 the Supreme Court held that sentencing judges could “categorically reject” the 100:1 ratio in the sentencing guidelines. Finally, in 2010, Congress acted and swept away the noxious ratio in favor of a less onerous 18:1 ratio. 
The editorial notes, however, that Congress did not make the change retroactive to those already serving sentences. In Osler's view:
The result of all this is profoundly unfair. Thousands rot in prison under a sentencing scheme now uniformly rejected. The best, and perhaps only, recourse for them is the president’s clemency power. He has the ability to shorten their sentences to what they would be under the new, better law. 
Would Obama be breaking new ground in some unprecedented and startling way were he to do this? No. In 1974:
President Gerald R. Ford "commuted the sentences of more than 14,000 people serving sentences for draft evasion, using a special commission which existed for exactly one year. The process was efficient and fair, and could be easily replicated today. Most people don’t seem to remember the Ford commutations, which may be the idea’s best recommendation. Ford’s commutations achieved their goal without controversy, even when dealing with the hot-button issue of draft evasion. 
Osler argues Obama could "thin out" the prison population "without compromising principle or public safety."  And, "the time to announce such a plan is now." Read the editorial article here.

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