Following President-elect Donald Trump's "law and order" campaign where he vowed, among other things, to "get rid of gang members so fast your head will spin," there doesn't seem to be much hope for federal criminal justice reform next year, or beyond. But President Barack Obama still can take one action that his successor cannot, by law, undo.
During this "midnight period," until Jan. 20, Obama must accelerate his pattern of commuting the sentences of federal prisoners penalized under outdated mandatory minimum penalties. These are men and women serving disproportionately long prison sentences that burden American taxpayers and overcrowd our already underfunded federal prison system. It's the right thing to do – morally and justly – for the country.
Approximately 46 percent of federal prisoners are serving time for drug-related crimes. Many were sentenced under outdated mandatory minimums established in the 1980s for crack and powder cocaine. Someone caught with one gram of crack cocaine went to jail for the same amount of time as someone caught with 100 grams of powder cocaine. These sentences disproportionately penalized people of color – and helped lead to an explosion in America's prison population.
In 2010, Congress passed the Fair Sentencing Act, or FSA, and narrowed the sentencing disparity between the two forms of the drug. However, the FSA did not apply to anyone already convicted under the older laws. As of 2013, more than 17,000 federal prisoners were serving sentences for crack convictions.
President Obama has helped chip away at the problem, using his clemency power more than any president since Woodrow Wilson. He's commuted 900 sentences – more than the last 11 presidents combined. But that's still a fraction of the total cases out there. The Clemency Project, a pro-bono effort of lawyers across the country working to file petitions, has alone submitted more than 2,150 cases to the Office of the Pardon Attorney since 2014. Of those, just 469 were granted clemency.
Before Trump takes office, however, Obama must go further. He should immediately ask the Justice Department to reduce prison stays for the thousands left behind by the FSA. This could impact more than 4,000 federal prisoners and make a big difference in the lives of people wronged by our criminal justice system.
How will this work? It's fairly simple. After identifying the lead charge of conviction for every Bureau of Prisons' inmate, the Justice Department can create a list of those incarcerated for low-level and nonviolent offenses. The department can then decide how much of the original sentence to commute.
For example, the department can identify people whose highest offense was a crack-cocaine crime eligible for a shorter sentence under the FSA. Those cases could then be elevated for quick review by the Pardon Attorney, to screen for exceptional circumstances. If none are found, the Pardon Attorney could determine how much of the original sentence is worth commuting and apply it across the board.
Starting next year, President-elect Trump will likely not continue granting clemency. In fact, in an outline of what he plans to do during the first 100 days in office, he vowed to "cancel every unconstitutional executive action, memorandum and order issued by President Obama." And while Obama's time in the Oval Office is almost up, his legacy of improving the criminal justice system will last forever. "He should be applauded for these efforts. But for every case where clemency has been granted, there is another person still waiting," said Rachel Barkow, a member of the United States Sentencing Commission and NYU law professor.
Aggressively expanding on the administration's commutation program in his final days, which cannot be reversed, will help counter Trump's threat. It's the last significant way Obama can advance criminal justice reform before leaving office.