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Pardon power and compassionate release

  • Written by Steve Cohen

Cohen-Steve-400President Obama and his administration have, at times, made bold use of executive authorities and powers to help the powerless, from granting deferred action to DREAM Act beneficiaries to providing some relief from crushing student loan burdens. Atty Gen. Eric Holder's announcement this week of a smarter, fairer, and more just approach to the prosecution of non-violent offenses, including the possession of small amounts of drugs, is another example of President Obama's willingness to align our nation's policies with our ideals, the goals of our justice system, and our laws.

But the President remains surprisingly reluctant to use his pardon and commutation power. Thankfully, he still has the opportunity to help those who need it most and leave an even larger legacy of justice.

Criminal sentences reflect a society's values but as our values change, many of those sentences unfortunately remain on the books and people still serving them suffer needlessly – and those unjustly long sentences unfairly and unequally harm people of color and minority communities.

In his "Letter from a Birmingham Jail," Dr. Martin Luther King Jr. argued that "one has a moral responsibility to disobey unjust laws." With this in mind, President Obama should use his legal authority under the Constitution, and his moral responsibility in the spirit of Dr. King, to "disobey" unjust sentences and make them right through his pardon power.

To date, President Obama has pardoned only 39 people and commuted one sentence, far fewer than most of his recent predecessors. Meanwhile, our prisons are packed with non-violent offenders serving excessive sentences, particularly for drugs, simply because Congress wanted to look tough on crime.

The public is awakening to the fact that this policy is taking us in the wrong direction. Forty years of the drug war have proven to be a failure and not only are we throwing away the lives of millions of people who pose no risk to society, but we are also wasting precious resources through our vast prison industrial complex.

We can do better and, while Atty. Gen. Holder's decision to seek smarter sentences is a step in the right direction, the President should do more. He should lead the way.

There is one thing that may be holding him back: the Pardon Office at the Department of Justice (DOJ) is currently headed by a holdover from the Bush Administration who has been admonished by the DOJ's Inspector General for withholding and misrepresenting information to the President. He should be immediately replaced by a highly respected figure in the legal field, someone who would see the job as an opportunity to restore liberty to those who have long since paid their debt to society, not one who sees denying justice as his mission.

As I have said directly to the President, this new leader of the Pardon Office also ought to create a special Compassionate Release Review Board (CRRB) to conduct a systematic review of the sentences of all current prisoners and recommend worthy candidates for pardon or commutation. As part of this review, a CRRB would also consider broad classes of offenders serving unjust sentences that no longer align with our national values and policies.

For example, in the 1980s, tough new sentences were imposed on crack cocaine, leading to a 100:1 disparity compared to powder cocaine. Congress recognized the injustice of this law, including the racial disparities in sentencing it created, and in 2010 President Obama signed the Fair Sentencing Act, which greatly reduced the disparity. Yet because the law was not made retroactive, thousands of individuals who were sentenced prior to 2010 remain in prison, serving sentences that have now been repudiated by the public policy of this nation – public policy that the President himself signed into law.

Similarly, the American people have changed their attitudes towards marijuana, and a majority now supports legalization, but the laws on our books have yet to catch up, leaving too many people in prison waiting for Congress to act. The President ought to use his commutation authority to correct these injustices.

This is not only a matter of fairness. Considering the historic fiscal constraints we face, releasing prisoners who pose no risk to society and who have served the bulk of their sentences would help save precious resources. Acting to reduce prison overcrowding and unnecessarily long prison sentences would save a significant amount of taxpayer money. This is an issue that should bring liberals and conservatives together.

In his recent inspiring speech at Morehouse College, President Obama urged the graduating class to defend the powerless. He also spoke of the special obligation he felt to "help those who need it most, people who didn't have the opportunities that I had – because there but for the grace of God, go I – I might have been in their shoes. I might have been in prison. I might have been unemployed. I might not have been able to support a family. And that motivates me."

The President can channel this motivation into a historic opportunity to give a second chance to people who have paid their rightful debt to society. In one bold stroke, he can create a CRRB to evaluate existing sentences in light of our shifting policies and values and recommend release where justice no longer calls for an offender's confinement. The Constitution grants him unlimited, unfettered authority to grant pardons and commutations and this power cannot be thwarted by Congress, like so much of his agenda.

While Atty. Gen. Holder's recent announcement will hopefully prevent the unreasonably long incarceration of countless Americans, President Obama can – today – use the pardon power to reduce unjust sentences and right some of the wrongs being faced by those already in our criminal justice system. I urge him to use it fully, compassionately, and without delay for justice delayed is most certainly justice denied.

(Congressman Steve Cohen represents Tennessee's 9th Congressional District.)


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