Until Federal Sentencing Reform Passes, the President Has Other Tools in His Pocket

This week, President Barack Obama commuted the sentences of 214 federal inmates, including 67 serving life sentences for nonviolent drug crimes. This brings the President’s total commutations to 562, more than any other president in nearly 100 years.  

This is good news, but it also underscores the need for broader change at the federal level. Yet, our legislators are dithering on enacting the Sentencing Reform and Corrections Act, and time is running out for passage in this Congress. Clemency is a workaround — a chance for the president to walk back undue exuberance in criminal sentencing of past years, and release people who present no risk to public safety.

Until federal legislation is passed, the president has an important tool at his disposal to help right the ship: categorical commutations. He can use it to make a significant impact on the prison population in the coming months. He can make a down payment on curbing mass incarceration, even without legislation.

In April 2014, The Brennan Center suggested categorical commutations in its report, 15 Executive Actions. The report recommended that the president direct the Justice Department to identify and suggest commutations, barring exceptional circumstances, for all federal prisoners whose crack cocaine sentences would have been reduced had the Fair Sentencing Act of 2010 been retroactive. The Act reduced the disparity in sentences for crack cocaine versus powder cocaine, but not for those sentenced before it was enacted. The Sentencing Reform and Corrections Act pending before Congress makes this change retroactive.

An executive action in this vein could commute the sentences of roughly 5,000 to 5,800 prisoners with the stroke of a pen. That’s nearly half of the 12,000 commutation petitions that have been filed by federal prisoners.

The Justice Department has indicated fewer than 2,000 of the petitions meet guidelines in the president’s 2014 clemency initiative. Under that plan, commutations may be made for low level, non-violent offenders who would have received lower sentences if convicted today, who have served at least 10 years, who have no significant criminal history, who have demonstrated good conduct, and who have no history of violence.

Recently, a team of legal scholars and justice advocates argued that the president needs to find a way to ensure that all 12,000 petitions are considered before the end of his term. But he’ll be hard pressed to reach that goal under the current bureaucratic review process, which prompted the former Pardon Attorney to resign in protest. That’s why he needs to take bolder action now.

There is ample precedent in history for the use of the president’s categorical clemency authority. President’s Ford and Carter issued broad amnesties for Vietnam era offenses, including draft evasion. President Truman granted a number of amnesties for military and selective service violations, including a blanket amnesty and pardon for many convicted of military desertion between 1945 and 1950. President Lincoln granted a broad pardon to most combatants of the Confederacy willing to swear an oath of allegiance to the Constitution and the United States in 1863. There are plenty of other examples.

The president’s categorical clemency authority is long established. Using it now to reduce the sentences for people who would face less prison time if convicted today is fair and reasonable, and a great step along the road of ending unnecessary incarceration.

The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.