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One Month Left for Criminal Justice Reform and Clemency

The Obama Administration has shown tremendous support for sensible criminal justice reform, but there is much more it can do in its last month.

  • Michael Crowley
December 19, 2016

Today, the Electoral College meets to ratify the results of our recent presidential election. It also marks the beginning of the last month of the Obama administration. Supporters of criminal justice reform are beginning to wonder whether the president plans to do anything else before handing the reigns to his successor, after which it’s anybody’s guess as to what happens. There is still tremendous opportunity during this final month for Obama to make an impact. The president wields powerful clemency authority to adjust sentences for thousands of federal prisoners.

The only thing holding the White House back? It needs to stop sitting on its figurative hands.

The president should use his clemency authority to revisit and fix the sentences of the about 5,000 prisoners convicted of crack cocaine offenses who were left behind in changes made through the Fair Sentencing Act of 2010. Making this fix was one of the goals of the bipartisan Sentencing Reform and Corrections Act — now dead in this Congress. Getting these sentences right via a categorical commutation would be a significant down payment on criminal justice reform. But the president can do more with the time remaining to him.

A Brennan Center report released last week, How Many Americans Are Unnecessarily Incarcerated?, highlights the tremendous number of Americans, about 576,000, who are locked up without any compelling public safety rationale. Of that, 364,000 — or 25 percent of the current prison population — would be better served by alternatives to prison like treatment, community service, electronic monitoring, or probation. Brennan Center experts estimate that figure could include more than 70,000 federal prisoners.  Clemency could make a significant dent in this population if the White House were inclined.

The way America uses prison isn’t just an astounding waste of $20 billion a year; it wastes lives. What can the president realistically do with just one month left in office? Well, one month is enough time for a robust categorical commutation process that leads to reduced sentences for every federal prisoner held on low-level and nonviolent criminal convictions.

It sounds labor intensive, but it is possible. The president can instruct the Justice Department to pull automated records for all federal prisoners with such convictions. Of course, the White House would want to weed out prisoners with serious and violent criminal histories, and this can be easily done with using the same automated records.

The Justice Department prefers a lengthy and elaborated clemency review process, but the White House should not let this be a bar to flagging those individuals for whom fairness argues for a reduced sentence. One month should be enough time to get the job done.

To be sure, the Obama administration has shown tremendous support for sensible criminal justice reform. Beginning with Attorney General Eric Holder’s “Smart on Crime” initiative in 2013; appointing Michael Botticelli as the nation’s Drug Czar, someone who finally understands that we won’t arrest our way out of substance abuse; and supporting legislation such as the Sentencing Reform and Corrections Act — these are just a few of the many noteworthy things this administration has done. Also, the Obama administration’s signature clemency initiative has led to sentence commutations for 1,176 people who have been incarcerated under unduly harsh circumstances. Just today, the president shortened sentences of 153 people and pardoned 78.

“It’s the most number of individual clemencies in a single day by any president,” reports the Associated Press. But, much more can be done – even with only one month left.

White House Press Secretary Josh Earnest indicated a week ago that it’s not likely the president will significantly alter the clemency process in his final days. If true, this is a terrible shame, as thousands of lives and much needless government spending is at stake.

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