Even in the twilight of his administration, President Barack Obama has the power to strike at mass incarceration by freeing tens of thousands of men and women from federal prison and reuniting them with their families.
With his legacy on the verge of evisceration by President-Elect Donald TrumpDonald TrumpHarris stumps for McAuliffe in Virginia On The Money — Sussing out what Sinema wants Hillicon Valley — Presented by Xerox — The Facebook Oversight Board is not pleased MORE, this opportunity—curbing mass incarceration through mass sentence reductions—is his best remaining shot at durable change. The President should take it.
In its final months, the Obama administration should reduce sentences not prisoner-by-prisoner but category-by-category, focusing on groups such as older prisoners and people convicted of nonviolent offenses. Using such categories, the President should cut prisoners’ sentences not by the hundreds but by the thousands and tens of thousands.
No legal constraint would prevent the President from using his clemency prerogative as a weapon to roll back mass incarceration The United States locks up more of its people than any nation on earth, including Russia and China. This tears families apart on a massive scale, takes money away from schools and roads, and lands most heavily on people of color.
Article II of the United States Constitution provides that the President “shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” The power is virtually limitless. It cannot be blocked by Paul RyanPaul Davis RyanJuan Williams: Pelosi shows her power Cheney takes shot at Trump: 'I like Republican presidents who win re-election' Cheney allies flock to her defense against Trump challenge MORE, stymied by Mitch McConnellAddison (Mitch) Mitchell McConnellBiden says he's open to altering, eliminating filibuster to advance voting rights Pelosi says GOP senators 'voted to aid and abet' voter suppression for blocking revised elections bill Manchin insists he hasn't threatened to leave Democrats MORE, or curtailed by John Roberts. According to the conservative Heritage Foundation, “the power to pardon is one of the least limited powers granted to the President in the Constitution.”
Most importantly, a pardon cannot be undone by Trump or anyone in his administration. In 2017, the President Elect and the Republican Congress may tear down most of what Obama has built, but pardons and sentence commutations cannot be revoked. Obama's arsenal is dwindling, but the clemency power is intact and unbowed.
The Obama administration has reduced mass federal incarceration, to a point. From 2013 to the present, the number of prisoners in federal custody shrank from nearly 210,000 to approximately 190,000. But that’s small potatoes—in 1980, there were only 25,000 federal prisoners. A small fraction of federal prisoners are locked up for violent crimes. Most languish in prison for drug offenses, property crimes, and immigration violations.
The clemency power is ancient, tracing its heritage to a monarch’s prerogative to show a subject mercy and demonstrate grace. Presidents have generally exercised their pardon authority so as to grant individuals personal forgiveness. Lincoln is said to have received a pardon request unsupported by letters from anyone but the petitioner himself. “Why if he has no friends,” Lincoln is reported to have said while granting the pardon, “the President shall be his friend.” But clemency has also been exercised through sweeping action, as when President Carter pardoned all Vietnam draft evaders.
President ObamaBarack Hussein ObamaBiden: Democrats' spending plan is 'a bigger darn deal' than Obamacare Harris stumps for McAuliffe in Virginia Biden to stump with McAuliffe Tuesday MORE’s pardons and commutations to date show that he already conceives of his prerogative not merely as individual acts of compassion but in more systemic terms. He has commuted the sentence of 774 prisoners, more than the last eleven Presidents combined. But this is still a drop in the bucket compared to the huge numbers of people the feds lock up.
Now is the time for Obama to use the clemency power, and with muscle. He could commute the sentences of federal prisoners convicted of non-violent offenses by 50%. He could commute to time served the sentences of all prisoners over 50—a group that is unlikely to recidivate and uniquely expensive to lock up—if they have been imprisoned for more than 10 years. He could commute all federal death sentences to life imprisonment or a term of years. He could free prisoners near death so they do not die in prison. Given the 7.3 billion yearly price tag of operating the federal prison system, real population reductions would yield massive savings.
To be sure, a safety valve would be required to ensure some individual consideration and to prevent the rigid application of these rules. After establishing the categories of prisoners eligible to receive sentencing reductions, the President could direct the chief federal prosecutors in each jurisdiction to send him a list of the top five or ten percent of serious convicts in those eligible groups, and he could exempt them from commutations. He could also grant a fixed number of vetoes to the Bureau of Prisons, enabling it to block the release of the prisoners it deems most dangerous.
Whatever the specific mechanism, the key to using pardons reduce mass incarceration is to reverse the usual presumption in which a pardon is denied unless compelled by individual circumstances. Instead, if a prisoner falls into an eligible category, the commutation should be granted unless individual circumstances compel a denial.
There is no time like the present to get this done. The election over, we celebrate mercy and forgiveness in the coming holidays. And the departing President, unlikely now to run for any office, can do the right thing—without caring if we’ll forgive him.
David M. Shapiro is the director of appellate litigation for the Roderick and Solange MacArthur Justice Center and a clinical assistant professor of law at Pritzker Northwestern School of Law, Chicago. He is a Public Voices Fellow.
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