President Barack Obama has overseen a dramatic reshaping of the federal prison system, as the most visible leader of a bipartisan movement to overcome the age of harsh punishment during the war on drugs.
Indeed, Obama is on pace to be the first president in 50 years to leave office when the federal prison population is smaller than the time he was sworn in.
But the impending presidency of Donald Trump—who ran on a “tough on crime” persona and nominated a like-minded attorney general, Republican Sen. Jeff Sessions of Alabama—has exacerbated frustrations from advocates of criminal justice reform that Obama hasn’t done more, and that Congress failed to pass sweeping legislation to support him.
“The things the Obama administration has done through executive authority—on sentencing, on solitary confinement, even instructions on marijuana—all of that on Day One can change under Trump,” said Sen. Cory Booker, D-N.J., in an interview with The Daily Signal on Thursday.
“That would lead to a tremendous cost to taxpayers and tremendously more liberty being taken away from people. It really puts more pressure on us as Congress to respond. In the meantime, Obama should be Obama and do what he has to do.”
On Tuesday, as first reported by The Washington Post, a coalition of advocates wrote a letter to Obama imploring him to more liberally use the presidential power of clemency, an authority that he has already executed in record fashion.
During his time in office, Obama has granted 1,023 commutations, including 342 individuals who were serving life sentences. This year, Obama has commuted more sentences than any other president has in a single year.
A commutation is a form of clemency that keeps the conviction, but reduces a prison sentence, either totally or partially.
Most of those who Obama commuted were sentenced for drug crimes during the 1980s and 90s, and would have received lesser punishment if they were sentenced under today’s laws. Yet advocates say the president’s action isn’t enough.
Courts have granted sentence reductions to an additional 29,000 inmates, the Justice Department says, mostly due to changes in sentencing guidelines authorized by a bipartisan, independent commission.
In its letter to Obama, the coalition, which includes former judges and prosecutors as well as groups such as the NAACP and the Sentencing Project, calls for Obama to issue “sweeping commutations” to large groups of inmates. To date, Obama has been taking an individualized, case-by-case approach.
“We very much appreciate and respect what the president has done on commutations,” said Marc Mauer, the executive director of the Sentencing Project, in an interview with The Daily Signal.
“And we understand the White House is working very hard on processing individual cases and should be applauded for that. At the same time, the clock is ticking. The prospects for sentencing reform [in Congress] this year are pretty much gone. We are hoping they take a more expansive view of commutation over the next six weeks or so.”
‘Unprecedented Clemency Program’
Even if Obama is unlikely to fulfill the coalition’s wishes, the president is expected to issue significantly more commutations before he leaves office.
That alarms opponents of Obama’s criminal justice initiatives, who argue the president has made overly judicious use of his clemency power.
“The president has the constitutional authority to issue pardons and commutations, but President Obama has initiated an unprecedented clemency program for federal trafficking drug offenders and has granted more commutations than the previous 10 presidents combined,” said Rep. Bob Goodlatte, R-Va., the chairman of the House Judiciary Committee, in a statement to The Daily Signal.
“Calls to expand this unprecedented use of executive power are irresponsible and undermine congressional efforts to work with the new administration to find areas of agreement on how to reform our nation’s criminal justice system,” Goodlatte added.
Goodlatte, like many other powerful Republicans, is supportive of criminal justice reform more broadly.
His committee passed a number of criminal justice reform bills this year, including measures reducing mandatory minimum prison sentences, enhancing mental health and substance abuse treatment, and protecting Americans from civil asset forfeiture.
‘Not a Jailbreak’
While Trump has been mum about his criminal justice views, his attorney general nominee, Sessions, favors aggressive enforcement of drug laws and the use of mandatory minimum sentences, and he’s opposed efforts to weaken them.
Advocates concede that at a minimum, Trump won’t keep Obama’s clemency initiative in place.
Under this program, Obama’s Justice Department receives assistance from an organization, Clemency Project 2014, where nonprofit groups and pro-bono lawyers help federal prisoners looking to shorten their sentences.
Applications approved by the Clemency Project have to undergo several more layers of review inside the Justice Department, before getting to the White House.
To qualify for consideration, prisoners must meet certain criteria.
They must have served at least 10 years of their sentence, and have demonstrated good conduct in prison. They must be “low-level,” nonviolent offenders without ties to gangs or drug cartels, and have no history of violence. And they must be serving a federal prison sentence for a crime that they would have received a lesser sentence for under today’s laws.
“This is not a jailbreak; this is a considered, careful, deliberative process,” said Mary Price, general counsel with Families Against Mandatory Minimums, which is one of the nonprofit groups with Clemency Project 2014.
Not all of Obama’s commutations came through the Clemency Project. But to showcase the scope of commutations that Obama could still issue, Price told The Daily Signal that the Clemency Project has forwarded 2,435 clemency applications to the Obama administration. Of those, Obama has granted 523 commutations.
Strategy Shift
According to an analysis by USA Today, Obama has shifted his clemency strategy to keep up with the level of interest.
As Obama has begun to grant commutations to inmates convicted of more serious crimes, the president has increasingly commuted their sentences without immediately releasing them. These are known as “term” commutations, as opposed to the more common “time served” commutations.
So instead of outright releasing them, USA Today found, Obama has left prisoners with years of time—and in some cases, more than a decade—to serve on their sentences.
To Mauer of the Sentencing Project, this change highlights why Obama should make larger groups of inmates eligible for commutations, even if it only results in a short reduction in a prison sentence, not necessarily immediate release.
In their letter, Mauer and other signatories ask Obama to consider all prisoners who did not receive relief under the Fair Sentencing Act of 2010, a law passed by Congress and signed by Obama that reduced the 100-to-1 sentencing disparity between powder cocaine and crack cocaine offenses.
The law was not retroactive so it did not impact individuals sentenced to prison before the law’s enactment.
The coalition also suggests prioritizing veterans and older individuals for clemency consideration.
“The federal system has become so heavily inundated with federal offenders the last 30 years that even with a thousand commutations there are still thousands of others in prison who are serving far larger terms unjustified by public safety concerns or any other goal of incarceration,” Mauer said. “So the president can look at certain groups and reduce sentences to a more reasonable level. It doesn’t mean they get out tomorrow.”
‘Imperative’
Yet critics say Obama is no longer reserving his clemency power for extraordinary cases, but instead using his own judgment.
“The pardon and commutation power is meant to be used in extraordinary cases where there has been manifest injustice,” said Sen. Tom Cotton, R-Ark., in a statement to The Daily Signal.
“It should not be used to usurp Congress’ legislative power to determine sentences for whole categories of criminal offenders. While it is an open question whether President Obama will reject this radical idea from criminal leniency extremists, I am sure a President Trump will.”
Despite Obama’s expansive use of clemency, he has acknowledged only Congress can significantly address mass incarceration at the federal level, and he has often cited legislative inaction for why he’s acted so aggressively.
Advocates for reform, including leading conservatives, say they won’t limit what they can do, and remain hopeful about passing a left-for-dead comprehensive criminal justice reform bill next year.
And that’s true no matter how the executive branch decides to proceed—now, and into the next presidency.
“I don’t know what they are going to do or not do,” said Sen. Mike Lee, R-Utah., in an interview with The Daily Signal on Thursday. “What I do know is that this [criminal justice reform] effort needs to continue. It isn’t only possible. I think it’s an imperative. I will make sure it’s possible.”