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The fight over clemency

In terms of real-world impact, the Obama administration's policy on presidential clemency is quietly going to be one of the year's biggest political stories.
Deputy Attorney General James Cole at the Justice Department in Washington, April 3, 2014.
Deputy Attorney General James Cole at the Justice Department in Washington, April 3, 2014.
In terms of the real-world impact and the ability to change the lives of many Americans, the Obama administration's new policy on presidential clemency is quietly going to be one of the year's biggest political stories. The politics surrounding the policy, however, is more nuanced.

The Justice Department announced a plan on Wednesday to canvass the entire federal prison population for the first time to find inmates who committed low-level crimes and could be released early. The move, which expands a plan announced in January, is expected to generate thousands, if not tens of thousands, of applications for clemency. It represents the Obama administration's latest break from the criminal justice policies created to fight drugs. Deputy Attorney General James M. Cole said Wednesday that the department would consider recommending clemency for nonviolent felons who have served at least 10 years in prison and who would have received significantly lower prison terms if convicted under today's more lenient sentencing laws.

President Obama has changed the national conversation in a more progressive direction on a variety of major issues, but arguably the most profound change has been on U.S. drug policy. After nearly a half-century of a costly and needlessly punitive "war on drugs" -- a "war" fought by both parties -- it was this president that forced a dramatic change of course.
There's no great mystery as to why it took so long. As we've discussed before, the political environment has been, to put it mildly, inhospitable -- Democrats who dared to question the wisdom of U.S. drug policy risked being labeled out-of-touch liberals and "soft" on crime.
For the most part, the political conversation has matured and the Obama White House has faced very little partisan pushback. Indeed, following the president's lead, it's no longer uncommon for even prominent Republicans to decry the "failed war on drugs" and endorse sentencing reforms.
But as Rachel noted on the show last night, the new clemency policy has sparked more pushback than most recent initiatives in this area.
House Judiciary Committee Chairman Bob Goodlatte (R-Va.), for example, threw a fit.

"In an unprecedented move to dramatically expand the clemency process for federal drug offenders, President Obama has again demonstrated his blatant disregard for our nation's laws and our system of checks and balances embedded in the U.S. Constitution," he said. [...] "Congress is charged with establishing categories of punishments for federal crimes, not the president. This pattern of President Obama picking and choosing which laws to enforce and which to change according to his whim is an alarming trend that must stop."

Part of the trouble here is that Republicans have a square-peg, round-hole sort of problem. They start with a transparently silly premise -- Obama is a lawless tyrant who casually breaks laws on a whim -- which the GOP then tries to force onto the topic of the day.
But the Constitution empowers the president to act in this area, so it's hardly a scandal when Obama does exactly that. If Congress wants to act, I suspect the White House would be delighted, but the administration doesn't need a dysfunctional legislative branch to take advantage of the legal authority it already has.
Goodlatte isn't the only one complaining.

Sen. Jeff Sessions (R-Ala.) called the Obama administration's decision to allow nonviolent drug convicts to apply for presidential clemency "an alarming abuse of the pardon power." "If this latest unilateral action becomes the norm, then what kind of Pandora's box has the president opened?" Sessions said Wednesday evening. "Can a president pardon all people convicted of financial fraud, or identity theft, or unlawful re-entry into the country, or any category of crime when Congress does not act as the executive wishes?" [...] "To unilaterally determine that a sentence was unjustified simply because the president disagrees with the underlying criminal justice policy is a thumb in the eye of the law enforcement officers, prosecutors, defense attorneys, judges, court and prison personnel who put time and resources into these cases," Sessions said. "And it sends the message that the United States government is not serious about combating drug crimes."

Charles Krauthammer, meanwhile, whined about the "lawlessness" administration, but then added, "If it were just this alone, you would say yes. On the merits it's not a bad idea, there was over-sentencing in the past."
And then there was Senate Minority Whip John Cornyn (R-Texas) who called for "meaningful reform of our nation's prison system," which "requires a well-thought-out proposal for using rehabilitation, jobs, and training to help prisoners re-enter society -- not an election-year push with no plan to reduce their risk of becoming repeat offenders."
The White House, in other words, after slowly pushing the envelope on federal drug policy, is getting pushback from the right for the first time. And that's fine -- let's have the debate. The status quo doesn't work; most agree that the United States locks up far too many of its own citizens and for far too long; and Obama is taking sensible, humane steps in the right direction. Republicans who've been willing to sit on their hands now want to raise a fuss? Great, it's a fight worth having. Policymakers should make clear to the public where officials stand.
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