Friday, July 17, 2015

Mr. President, Choose Wisely!

As President Obama rolls to the end of his second term, he is sporting one of the most miserable records re federal executive clemency in the history of the United States. At present, only eight presidents have granted fewer pardons and commutations of sentence - and most of them didn't even serve two terms. Although Mr. Obama has received over a thousand more applications for commutation of sentence than his four predecessors combined, he has only granted 1 more commutation of sentence than they did. This is clearly not the "hope and change" many  (including the Editor of this blog) were cheering for.

Now what? Where to go? What path will the President choose?

Path 1: The White House continues to tout its "bold" record on commutations, maybe grants a hundred or so more before the ends of the term and that is it. Maybe we get a "Mission Accomplished" speech and/or banner.

* Our assessment: What a gruesome tragedy it would be, were the President to take this path. To raise expectations so high, after so many years of talk, and head fakes. Sickening to even think of this.

Path 2: The President waits a few more months, then commutes a few hundred sentences, then a few hundred more, then maybe a thousand or two, just before the term ends.

* Our assessment: For most of our history, presidents granted pardons and commutations throughout regularly, throughout the term. A month would simply not go by without a grant. THAT is the way the President should address this issue. A regular string of grants (pardons and commutations), every month, every week! from here to the end of the term. The country, and the pardon power, do not need / deserve another hit like Bill Clinton's foolish last-minute pardon bonanza. That kind of thing attaches public suspicion and distrust to the power and unfairly taints the accomplishments of well-deserving recipients. It comes over as a kind of political stunt to avoid political accountability and makes pardoning look like something less than a calm, objective, deliberative process.

Path 3: The President recognizes what has been long known: that there are systemic problems with the clemency process and - for whatever reasons - it does not have the capacity to adequately address thousands of unfair, unjust, excessive prison sentences and/or sentences which are no longer serving any particular public purpose, So, he decides to address the problem himself, with the powers given to him by the Constitution, in a systematic way (has a kind of logical ring to it, does it not?) So, he does what presidents have done more than a few times since George Washington ... he identifies / defines prisoners by categories of conditions and grants a group / general pardon, or an amnesty.

* Our assessment; The criticisms that accrue to last-minute pardoning are not so easily a factor in the matter of an amnesty, even if it is granted late in the term. Amnesties are, by definition, the result of deliberative, but intentionally aggregate thinking. They are an optional form of policy making in the executive branch, a co-equal branch in our system of checks and balances, The intentions and goals of the policy are, of course, what drive the specification of those who benefits from an amnesty. Detractors may disagree with the policy, which is fine. It is our sense, however, that there has never been a better time for a president to take this path. Indeed, there is every reason in this world to think that - after the obligatory showing of asses - support for such an amnesty would be quite strong.

In sum, Path 1 is highly objectionable. Path 2 is barely tolerable, but only because of the pitiful record of presidents over the previous 4-5 decades. Path 3 just makes perfect sense.

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