Academics have it good. We can pick something that interests us and then pursue it full-force, in our teaching, writing and advocacy. For me, as a law professor at the University of St. Thomas, that something has been federal clemency — the president’s constitutional power to grant pardons and shorten sentences through commutation.
Four years ago, St. Thomas allowed me to open the nation’s first student clinic working with federal inmates to seek an early release. Our clients are mostly people who are serving very long terms for low-level and nonviolent drug offenses. For some, they would be out of prison by now if they had been sentenced under current law, because the sentencing rules have changed but were not made retroactive. They weren’t drug kingpins; they were the impoverished pawns — low-wage labor in the business of narcotics.
With collaborators like Nkechi Taifa at the Open Society Foundation and groups affiliated with the Koch brothers, we pushed for a broader use of the pardon power. In time, President Obama responded, announcing in spring 2014 that he was going to use clemency more aggressively to address cases like those we were presenting. My clinic redoubled its efforts, and with New York University Prof. Rachel Barkow, I started the Clemency Resource Center, a pop-up law firm that will work on these cases for one year at no cost to the clients.
Unfortunately, Obama promised hope to those in prison, but did not fix the underlying problem: a process that courses hard files through four different federal buildings and seven levels of review. It’s the kind of self-perpetuating, counterproductive federal bureaucracy Ronald Reagan so often decried. There is an easy fix, too: Just put the pardon attorney in the office of the White House counsel and have her report directly to the president. All the president needs to make it happen is the political will and a pen. We know he has the pen. He hasn’t used it.
This month, in a cloud of self-congratulation, Obama announced the commutation of federal sentences in 95 cases (not to be confused with the 6,000 early releases in November, which were the result of a sentencing commission rule change). Those 95 were more than his immediate predecessors had granted, yes, but the administration’s news releases ignored the bloated denominator — there are more than 8,000 cases pending, hard files sitting on someone’s desk in one of those four federal buildings.
That day, I was having lunch with two longtime friends at the Surly Brewery, amid a happy holiday crowd seated at long tables beneath the towering tanks. I ignored it when my phone blew up with calls and messages, though I knew what it was.
When we were done with lunch, I sat in my car and took a deep breath. I knew that one of the 45 e-mails I had gotten in 10 minutes would have a link to a list of those who had received clemency. I found it, and clicked.
I ran down the long list, and my heart sank. Two of our clients at the Clemency Resource Center were a part of this set, but many people I have worked for were not.
Feeling overwhelmed, I checked again, looking at the As and the Bs and the Fs and the Ls. Their names were not there, all of them small-time, long-ago drug dealers who have turned their lives around after a decade or more in prison. None of them had a history of violence. As a former federal prosecutor, I know that they probably were replaced in the drug business the day after they were arrested; their incarceration for decades solves no problem. Each one has a family who had been given hope by Obama’s promise. I drove back to work quietly, thinking about the list and the winners of the freedom lottery.
I had grading to do, but as I sat at my desk with the stack of tests, I dreaded the phone ringing. It rang anyway. I looked at the screen, and it said what I feared it would: “Unknown,” which is how calls from prison always come up. I let it ring once, twice, three times, before pressing “answer.”
And they did call. Not in anger, but in sadness. And each time I talked to them about what had happened, how I did not know how they picked the lucky ones. They told me, in heavy voices, what they would miss: a son’s graduation, the last days of a mother in fading health. And each time I hung up and sat in silence. When it got dark around 4:30, I neglected to turn on my lights. Outside, my window, the city transformed in the dusk. My office looks out over the Doubletree Hotel, and it bustled with activity as people returned from shopping. A man walked out and stepped into a cab, and it drove off taking him wherever he wanted to go. It looked effortless, normal.
In the shroud of quiet, I mourned. This can’t be how the movie ends. There has to be more, in the months to come, because a promise was made to those who had no hope.
Mark Osler is the Robert and Marion Short Professor of Law at the University of St. Thomas and a former federal prosecutor.”