Wednesday, August 14, 2013

Osler: On Legacies and Responsibilities

In response to Attorney General Holder's recent announcement re mandatory minimum sentences and compassionate release, we noted Holder's "legacy" :
... includes a mere 39 pardons and one commutation of sentence across two terms - the most stingy clemency record since the administration of John Adams. It also includes thousands upon thousands of young, first-time, non-violent drug offenders rotting away in prisons under sentences imposed by a law which both parties in both houses of Congress has since rejected as unsound and unjust. The legacy also includes a record number of clemency petition rejections and a Pardon Attorney rebuked by the Office of the Inspector General for manipulating information and misleading the president with respect to the clemency application of an African American (the previous Pardon Attorney having been removed for making racist remarks re an applicant). In other words, compassion has simply not been a hallmark of the Obama administration, or Mr. Holder's Justice Department. It is encouraging to see discussion (Holder's gig, since 1999!), and changes in policy, as well as the creation of apparatus and an accompanying mindset to enforce such policies. But, in their wisdom, the Founding Fathers created their own compassionate release program and put it in the Constitution. It is called the pardon power. Long before prison crowding and tax payers were forking out millions for incarcerations, Alexander Hamilton argued there should be "easy access" to mercy. We will see if any of that logic is reflected in this "major shift."
In an editorial for MSNBC, Prof. Marc Osler mirrors our sentiments. Osler calls Holder's speech "remarkable," but "striking" for its "lack of ambition or imagination" because it "did not even mention the presidential power crafted by the framers specifically for such injustices: Clemency." Writes Osler:
[Holder's] remedies address only a thimbleful out of the ocean of tragedy that misguided drug policies have created. Hopefully, further initiatives will be announced. The first, and most obvious, would be a vigorous use of the clemency power to free those who continue to serve long federal sentences under sentencing schemes the nation has abandoned. ... The Fair Sentencing Act was not retroactive. That means that the only realistic path to fulfilling the important principle Holder articulated so well (that “we need to ensure that incarceration is used to punish, deter, and rehabilitate—not merely to warehouse and forget”) is through the president’s pardon power. If the administration really believes in this principle, the next step should be a mass commutation of those prisoners’ sentences. 
Osler suggests that, if Holder and Obama are concerned about their legacies, "the pardon power would be a good place for firm action." Moreover, this administration, "the least active of any modern presidency in the use of this important presidential tool" should recognize clemency "is a constitutional responsibility to use clemency in the face of injustice, just as much as it is a constitutional responsibility to use military force as commander in chief in the face of a military threat to our nation." See Osler's full editorial here.

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