WASHINGTON -- In one of the White House's sillier annual rituals, Barack Obama on Wednesday pardoned the second Thanksgiving turkey of his presidency.
He has, however, yet to pardon a single human.
A president's power to grant clemency is broad, unilateral and absolute. Obama, a constitutional lawyer by training, and the first African-American president, could issue pardons and commutations that make a powerful statement about the justice system past and present.
Indeed, presidents have a responsibility to use their pardon power to correct the excesses and errors of a system that is inevitably imperfect, often overloaded, and especially in this era of mandatory sentences, overly rigid.
Obama's grants could speak volumes about fairness, forgiveness, rehabilitation and renewal. He could restore rights, right wrongs, and bring freedom to the unduly oppressed.
But he chooses not to.
And it's not just that he hasn't gotten around to it, either. In October, he formally denied 71 pardon requests and 605 commutation requests sent over by the Justice Department for his consideration.
On Wednesday, the 674th day of his presidency, Obama officially becomes the second-slowest president in history to use his clemency authority.
President Clinton issued his first round of pardons and commutations on Nov. 23, 1994, the same day he pardoned his second turkey.
The average for all presidents is 133 days. The only president in modern times slower than Obama was George W. Bush.
If Obama goes past Dec. 20 -- just 27 more days -- without any action, he'll surpass even that record. (Bush actually announced them on Dec. 23.) And Bush was notoriously uninterested in clemency, granting only 200 pardons or commutations, the least of any two-term president in modern history.
"I'm just baffled. I never would have expected this," said P.S. Ruckman Jr., the editor of the Pardon Power blog and a political science professor in Illinois. "With Bush, I never really expected much out of him, because he had a track record for being really stingy as governor."
But, recalling how Obama spoke out during his presidential campaign against mandatory minimum sentences and laws with racially discriminatory impact, Ruckman said, "He sounded like he was someone who was passionate about this -- and where that went, I just don't know."
Incarceration rates in the United States have skyrocketed over the three decades since the "war on drugs" was first declared, to the point where the U.S. has the world's largest prison population and the world's highest incarceration rates.
Surely it wouldn't be hard for Obama to find some deserving men and women among the nearly 5,000 petitions being processed by the Justice Department -- not to mention among the nearly 2.5 million Americans currently behind bars, or the millions more whose lives are blighted by the legal discrimination against felons even decades after their sentences are served.
Obama could even announce his intention to grant clemency to an entire class of people -- sort of like Jimmy Carter did in granting amnesty to those who dodged the draft during the Vietnam war.
The obvious move would be to commute the sentences of thousands of people convicted of crack cocaine possession, most of them black, who have already served as much time as they would have if they had been caught with powder instead.
A 1986 law famously set a 100-to-1 disparity between the amounts of crack and powder cocaine that trigger a mandatory 5-year prison term. Congress this summer reduced that disparity to 18-to-1; raising the threshold for crack cocaine from 5 grams to 28 grams, while the level for powder remains 500 grams. But that change is not retroactive (and isn't even being applied to earlier cases still in the judicial process.)
"If you say the old law was unjust, and now we have a new law, wouldn't it make sense to take a look at some of these cases and see if they would be good candidates for commutation?" asked former Clinton administration pardon attorney Margaret Colgate Love.
"I don't think there's any reason in the world that any first-time non-violent offender who has served past that 18-to-1 ratio should be in prison another day," Ruckman told HuffPost.
Love suggested another possible class of cases Obama should consider: Longtime legal immigrants facing deportation for old or minor criminal convictions. In New York, Gov. David A. Paterson earlier this year launched an effort to speed the granting of pardons to such immigrants at the state level.
Obama could either declare some sort of across-the-board commutation, or could simply announce his intention to consider such requests. "You don't have to search, all you have to do is say you're open for business," Love said.
Voices from the left and right are calling upon Obama to act.
Conservative columnist Debra J. Saunders, while acknowledging that presidential pardons carry political risk, wrote in the San Francisco Chronicle:
Obama can avoid those pitfalls by focusing on nonviolent drug offenders serving outrageously long time behind bars because of the draconian federal mandatory minimum sentencing system. He can limit clemency to inmates with clean prison records. He can commute prison terms but require that inmates be released under supervision.
Love wrote in the Washington Post:
Pardoning people should not be that hard. In fact, it should be one of the happiest of your official duties. It requires no permission or negotiation with the other branches of government. It allows you to put your personal stamp on the justice system and to speak directly to the American people about it. Judicious pardoning has been an important legacy of some of our greatest presidents....
[T]here has never been a greater need for a robust and respectable pardon program. The federal prison population of roughly 200,000 includes many who have served decades for nonviolent drug offenses and others who deserve a second look to determine whether midcourse correction would be appropriate. Thousands of ordinary people living productive and law-abiding lives in this country are disqualified from opportunities and benefits because of a conviction record that may be decades old. These are people who have earned the second chance that a pardon represents.
Author George Lardner Jr. wrote in a New York Times op-ed on Wednesday:
It's difficult to understand why the president has been so unwilling to grant any clemency. As someone who has taught constitutional law, he knows that the founders gave him, and him alone, the power "to grant reprieves and pardons for offenses against the United States except in cases of impeachment." It is likely that he also knows that a disproportionate number of federal prisoners are black, that mandatory sentencing guidelines have left many of them with excessive sentences and that at least a few of them deserve clemency, whether they've asked for it or not.
The president has not only the power but also the responsibility to grant clemency when it is warranted. A pardon can help a worthy former prisoner qualify for a job or a license. But mainly it restores the person's civil rights, including the right to vote.
But the lack of pardons is a symptom of a more basic problem, Love told HuffPost. "This White House has shown itself really not very interested in criminal justice issues generally."
And Attorney General Eric Holder bears responsibility too. Holder, whose reputation was badly tarnished by his role in Clinton's last-minute pardon for a fugitive financier, seems averse to getting involved again. And among other things, he has allowed the Bush-era pardon attorney, Ronald L. Rogers, to stay on. Rogers, a longtime prosecutor, took over in 2008 after Bush's previous appointee was accused of mismanagement and of making racially offensive statements.
Obama "should appoint his own pardon attorney and decide how he wants to use his power," Love said.
Furthermore, a former attorney in that office recently complained in the Los Angeles Times that the current staff is actually biased against the very work they're supposed to be doing. Samuel T. Morrison wrote:
Having spent more than 10 years as a staff attorney in that office, I can say with some authority that the prevailing view within the Justice Department is that the pardon attorney's sole institutional function is to defend the department's prosecutorial prerogatives....
As a result, there is a strong presumption within the pardon office that the number of favorable recommendations should be kept to an absolute minimum, regardless of the equitable merits of any individual petition. This stance ignores the reality of a burgeoning federal prison population of more than 200,000 inmates, many serving lengthy sentences for nonviolent drug offenses, and the proliferation of collateral disabilities that hinder ex-offenders' ability to restart their lives, which the attorney general himself has criticized as a "recipe for high recidivism."
The work of the pardon attorney's office (which has a staff of 13) has historically been conducted in secrecy. A Freedom of Information Act filed by Lardner and upheld last month by the U.S. Court of Appeals promises to change some of that. But as of now, all we know is what's on the DOJ website, where a fairly inscrutable chart informs us that there were 1,287 pardon requests and 3,430 commutation requests pending as of Sept. 30, 2010.
Rumors are now swirling within pardon circles that at least some grants of clemency are expected soon. The vast majority of such grants in modern times have been issued in December.
Ruckman thinks that's a mistake. "These Christmas pardons, I think they send the wrong message, that pardons are gifts to people who may or may not deserve them," he said. "We think presidents should pardon on a regular basis, instead of fourth-year splurges and at Christmastime."
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