Thursday, March 30, 2017

Obama Administration: Most Embarrassing Clemency Episodes

Slow to Care

After a campaign packed with rhetoric re "Hope and Change," President Obama waited longer than any president in American history - save George W. Bush - to grant the first pardon of his administration (link). Some floated the idea that he was simply "too busy" - a fairly lame defense for a presidential candidate who sarcastically rebuked John McCain for failing to understand that one can do more than one important thing at a time (link) and in consideration of the behavior of previous presidents (see post here).

The Merciless First Term

Obama's foot-dragging was not limited to the granting of the first pardon. When the first term ended, he had granted a mere 22 pardons and a single commutation of sentence. Bush, Reagan and Nixon were criminal coddling softies in comparison. Indeed, to find a full term that merciless, one has to go all the way back to George Washington's first term! Of course, in Washington's day, there was no gargantuan criminal code, no booming federal prison population and there weren't thousands of clemency applications coming in. Who knew Obama would care so little? See post here.

Lies, Damned Lies and Clumsy Statistics

In July of 2015, White House Press Secretary Josh Earnest suggested President Obama's record on commutations of sentence was "bold." To make his point, Mr. Earnest compared the President's total number of commutations (89) to that of the four previous presidents. Mr. Earnest failed to point out the previous four presidents granted 88 commutations of sentence. President Obama had "beaten" them by a grand total of ONE. In addition, none of the previous four presidents received nearly as many applications for commutations of sentence as Obama. By that point, Obama had received a thousand plus more applications than all of them combined (link).

The hacks at DOJ were all about announcing new "records" and "making history," but just about always in the clumsy manner of Mr. Earnest (link). At one point, the OPA made graphic display of data a mini-comedy routine (link). When all was said and done, clemency, for Obama, primarily meant commutations of sentence, for one class of offenders (drug offenders), late in his presidency. Meanwhile, his record on pardons was abysmal (link). While Obama set an all-time record for commutations of sentence, the number he granted was small fraction of the number of applications received (link) and, of course, an even smaller fraction of prisoners serving sentences under laws that he supposedly considered unjust (link).

AG Lynch Talks Cra Cra

As Obama's term came to an end, and it was apparent that many thousands would left in prison via drug sentencing laws that he supposedly opposed, the obvious question became: "Why not grant an amnesty?" U.S. Attorney General Loretta Lynch told Rachel Maddow - without reference to any authority - that the granting of a pardon is “an individual decision that’s made on a case-by-case basis.” Consequently, “There’s no legal framework or regulatory framework that allows for a pardon of a group en masse” (link). It was perhaps the most preposterously ridiculous comment ever made by an Attorney General of the United States re clemency. Later, at the POLITICO gathering, Lynch tied the erroneous commentary to the possibility of a "blanket clemency for drug offenders," saying, "These are very individual decisions ... When you’re talking about clemency, the same as with pardons, it’s a very individualized decision. I think it would be hard to craft a system for a blanket commutation of a class of people" (link). Hard? Sure. If you are clueless. Amnesties are a great American tradition, and have been granted by many presidents. See post here.

Epic Transparency Fail

After an amazing show of cheer-leading for "transparency" via FOIA (link), President Obama's DOJ simply stopped processing FOIA requests altogether. The pathway was something to behold. First, requests were not answered. Then, receipt of requests was not acknowledged. At one point the U.S. Pardon Attorney actually recommended just waiting until Obama left office to make FOIA requests. Everyone was just too busy for the law thing (link). But, actually, after Obama left, OPA began denying requested information it had shared via FOIA requests for years. First, it was claimed that a new "electronic filing system" made it more difficult to retrieve information. Yes, you read that right, They updated and information retrieval was reduced ! Then, it was claimed that the information may or may not exist. Then, it was claimed that it was no longer necessary to share the information (link). Predictably, the DOJ is delaying appeal of all of this incompetence and resistance to the law (link).

Fast, Dirty, Sloppy, Last-Minute History Making

When Bill Clinton granted a batch of last-minute pardons, media wondered (and reasonably enough) if applications were fairly considered, and properly vetted. Why were the one who were granted clemency chosen, among thousands? After generally neglecting clemency for eight years, why was Clinton suddenly a fan? None of these critical inquiries were on the radar as President Obama engaged in the greatest fourth-year clemency surge in American history. The Times and Post did report on DOJ officials supposedly plowing through huge piles of applications as Obama's presidency came to an end. Yes, they went through those piles at home, over the Holidays, while missing meals and sleep. Far from being critical of the fact that such important decisions were being made in such an unprofessional way, the media romanticized it, as if the work of heroes was being done. They may have been working hard, but they certainly were not working smart. See post here.

The Final Spin (of the Flat Tire)

Just before he left office, Obama published a 56-page article in the Harvard Law Review on the president's role in advancing criminal justice reform. At page 25, Obama first mentioned the idea of "reinvigorating clemency," but the piece says nothing - as in zero - about reforming clemency. Obama noted it could not be "a substitute for the lasting change that can be achieved by passage of legislation" - a position which, quite literally, no one, anywhere in the universe takes. He then awkwardly wrote, "the Framers gave the President this authority to remedy individual cases of injustice" - as if he were as ignorant of amnesty as AG Lynch.

Obama took credit for "an unprecedented effort to identify the types of inmates who deserve particular consideration for clemency" but did not much emphasize much that this "effort" took place outside of DOJ - where clemency applications have traditionally gone to die. That should, in and of itself, say something, actually a great deal, about the need for reform in DOJ, or, even better, moving the clemency process outside of DOJ altogether. Obama concluded that the effort of his "team" had "touched" him "personally," that he has "worked to reinvigorate the clemency power" and that he "set a precedent that will make it easier for future Presidents, governors, and other public officials to use it for good." Not very likely. See post here.


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