... it has never been understood that the chief executive has a reflexive obligation to enforce the letter of the law. He has the pardon power (to make exceptions to the consequences of a violation of law) and he has prosecutorial discretion (to decide when and how to enforce the law). This is not controversial. See In re Aiken County, 725 F.3d 255, 259-66 (D.C. Cir. 2013) (discussing the President's authority as chief executive).In contrast to the standard commentary / criticism found in media over the last couple of days, Morison observes:
... the supporters of this clemency initiative are letting the Department and the President off the hook too easily. Many who've been working on the problem of over-incarceration are so excited by the prospect that something significant might actually happen are either not noticing (or refusing to acknowledge) that the Department has articulated a very narrow, pro-prosecution conception of clemency. The criteria announced by the DAG are limited to cases in which, for one reason or another, the person would have received a shorter sentence if he or she was convicted and sentenced today. The margins are fuzzy, to be sure, but that's the basic idea. This could be because of a change in the substantive law (like a Sup. Ct. case) or an amendment to the Sentencing Guidelines or the Department's charging policies. My reaction is that the glass is only half full.Far from representing an "expansion" of the traditional criteria for commutations, Morison argues the Obama plan may in fact represent a "contraction of the criteria."
The traditional criteria are listed in the US Attorneys Manual (posted on OPA's website) and also include unrewarded cooperation, illness of the applicant or a family member and disparity of sentence with a similarly situated defendant. In practice, it has also included extraordinary rehabilitation while incarcerated.Indeed, we expressed similar interests at this blog when we suggested (in advance of the DOJs announced grid) the importance of considering things like the relative youthfulness of offenders. or advanced age (see our post here). In addition, Morison notes that the President and the DOJ are "still articulating a view that commutation should be limited to doing justice in some sense, confined to cases in which the applicant arguably deserves a lower sentence." Says, Morison:
In my view, Obama is systematically excluding mercy as a basis for clemency and he is presumably doing it to insulate himself from the charge that he is "soft on crime." ... My concern is that we are implicitly accepting the assertion that these criteria define the scope of the proper use of the power.To all of this, we say, AMEN!