Under President Obama, the odds of clemency or commutation are shamefully slim.
If President Obama follows tradition and pardons a turkey this week, it will be a ceremony rich in irony. While the president has been a regular dispenser of clemency to fowl, he has not been so generous to humans. It is time for that disjuncture to end.
As ProPublica journalist Dafna Linzer pointed out earlier this month, President Obama has granted clemency more rarely than any modern president. This is particularly striking when considering commutations, or the power to lessen a sentence while maintaining the underlying conviction (a pardon wipes out the conviction). According to Linzer's calculations, "under Reagan and Clinton, applicants for commutations had a 1 in 100 chance of success. Under George W. Bush, that fell to a little less than 1 in 1,000. Under Obama, an applicant's chance is slightly less than 1 in 5,000."
The founding fathers did not intend for the pardon power to fall into such disuse. As the framers made clear, this vestigial power of kings is rooted in policy concerns that ring very true today. Alexander Hamilton, in Federalist 74, argued that "the criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel."
Our federal system of criminal law has, of late, been "too sanguinary and cruel." For example, thousands of federal prisoners still languish under long sentences doled out under the now-amended 100-to-1 ratio between powder and crack cocaine that was built into the federal statutes and sentencing guidelines. That ratio has been actively rejected by all three branches of government, but the only avenue to relief for those prisoners is commutation. President Obama should look to the approach President Ford employed for draft evaders in 1974: A mass commutation pursuant to a process created to provide careful review of each case.
At the individual level, there are strikingly strong petitions for clemency currently before the president. Since we started the nation's first law school clinic focused on federal commutations here at the University of St. Thomas, we have been deluged with letters asking for help. One was from Weldon Angelos, who was sentenced to 55 years in prison for three small marijuana infractions and the possession of firearms that were neither used nor brandished. He had only one prior conviction, stemming from a juvenile court charge for gun possession.
The Angelos case grew out of a perversion of mandatory minimum sentences embedded in federal statute and the actions of overaggressive prosecutors in Utah. The result was so unfair that the sentencing judge, George W. Bush appointee Paul Cassell, pled for a presidential commutation of the sentence on the very pages of the sentencing opinion, saying that the 55-year term of imprisonment he was forced by statute to issue was "unjust, cruel, and even irrational." Cassell substantiated this by pointing out the types of crimes that would have received a much shorter sentence: hijacking planes, raping children and murder.
Weldon Angelos has now served the same amount of time, 10 years, as Judge Cassell felt would truly fit his crime. He should be released.
Nor is Weldon Angelos the only such petitioner. For too long, we have filled our prisons with similar minor-league players in the drug game. It might make sense if this had solved a problem, but it hasn't. The billions spent have not bought success at reducing drug use in this country.
A step in the right direction would be to use the pardon power to release those who present the strongest cases and those sentenced under statutes we have now seen fit to amend. In those cases, clemency is more justice than mercy. Instead of a photo op with a turkey, President Obama should begin a Thanksgiving tradition that reaches back to our true origins and our best values.
Mark Osler is a professor of law at the University of St. Thomas.