THE BLOG
12/20/2013 07:37 pm ET Updated Feb 19, 2014

Is Obama Channeling Mandela?

On December 19, 2013, President Obama shortened the prison sentences of eight federal prisoners. Hooray! I have been urging him to do this for thousands of federal prisoners since he was elected.

Perhaps these commutations were inspired by Obama's eulogy at the memorial service for Nelson Mandela who,

"moved a nation towards justice, and in the process moved billions around the world... We, too, must act on behalf of justice. . . there are too many of us who stand on the sidelines, comfortable in complacency or cynicism when our voices must be heard."

I am very grateful that he commuted the life sentence of Clarence Aaron. Clarence has been in prison since September 30, 1993, when he was a 23-year old college student. Obama has ordered his release delayed until April 17, 2014.

Clarence's case came to national prominence in Ofra Bikel's award-winning January 1999 Frontline broadcast, "Snitch." The show reported on extensive miscarriages of injustice created by the mandatory minimum sentences of the Anti-Drug Abuse Act of 1986, which I helped write as counsel to the House Judiciary Committee.

The Criminal Justice Policy Foundation has had on its website a petition to the President to commute Clarence's sentence for a dozen years, and his cause has been championed by FAMM (Families Against Mandatory Minimums)

I have accompanied his mother, Linda Aaron, to press conferences to appeal to the President. And I worked with his attorneys, first Gregg Shapiro and then A. Hugh Scott at Choate, Hall and Stewart in Boston to strategize for his release. Their pro bono publico legal work consumed hundreds of valuable hours, and their commitment to Clarence's case, and to the freeing of Dorothy Gaines by President Clinton in December 2000, displayed the legal profession's highest values. In recent years I have worked with his current attorney, Margaret Colgate Love in Washington, probably the best known and most savvy practitioner of presidential pardon law.

Debra Saunders of the San Francisco Chronicle has written probably a dozen times chiding President Bush and then President Obama to release Clarence. Her recent column describes his minor role in the crack cocaine case that led to his sentence. All the ringleaders but one have been free since 2000.

Truly, I am very grateful that President Obama finally acted on Clarence's petition but I am very angry that this was so late, that instead of releasing him now, before Christmas, his release is delayed for four months, and that Obama has ignored thousands of legitimate pleas for mercy. My wife, quite rightly, accuses me of "sour grapes."

I wonder if Obama's words of praise for Mandela tasted of ashes because, since he took office, the federal prison population has grown from 201,280 in January 2009 to over 217,000 today, more than 78,000 of the prisoners are Black.

Out of over 8700 applications for commutation of sentence not acted upon over 5 3/4 years as President, the 8 sentences Obama commuted yesterday are eight times the entire number commuted in his previous 58 months in office, as Jacob Sullum wrote at Forbes.com. He has pardoned more Thanksgiving turkeys than human beings, who he has acknowledged suffer imprisonment for unjustly long terms.

In May 2012, Dafna Linzer
published on the front page of The Washington Post the shocking account that President George W. Bush had been considering commuting Clarence's sentence back in January 2008. By December, the Pardon Attorney had misrepresented to the White House the views of the U.S. Attorney and the Federal Judge in his case, and Bush then rejected Clarence's commutation application. Obama must have known then about the injustice in Clarence Aaron's case, which had previously been featured in a three-part series on Fox News in December 2008. Then the Pardon Attorney was blasted by the Inspector General of the Justice Department. It is critical that the Pardon Attorney protect the President with accurate advice on pardon applications. Yet Obama has taken no action to fix this broken process.

Jason Hernandez also had his life sentence commuted yesterday. In 1998, Jason Hernandez, who told Democracy Now that he started selling joints at age 15, was 21 when he was sentenced to life in prison without parole for selling cocaine and methamphetamine. Obama has commuted his sentence to 20 years -- he won't get out for another five years -- thus assuring he will have spent almost half his life in prison before he is released. Hernandez, of course, is thankful. What does Obama think is the benefit to Hernandez or to society for keeping him in prison for the next 5 years of his life? In what way has his imprisonment from age 21 to age 36 been an inadequate punishment for selling drugs?

For those of us who approve of yesterday's minimal acts of mercy, some fear that to criticize its minimalism may be a strategic mistake for it might reduce the likelihood of any more commutations from Obama. After all, who would criticize as stingy a John D. Rockefeller for giving a dime to a street beggar when he could yet give tens of millions to charity?

Yet, Obama has ignored the privately communicated requests of at least a dozen religious, civil rights and justice policy groups that he set up a comprehensive approach to review the sentences of the estimated 8700 crack cocaine prisoners who received no benefit from the Fair Sentencing Act of 2010 because it was not retroactive. (I wrote Section Four of that Act back in 2005). Yesterday Obama skipped a perfect opportunity to signal that he will take action to somehow address those cases.

In my view he successfully carried out what the White House constructed to appear as a magnanimous act of mercy. Is this really a generous Christmas gift to these men and women and their families when they won't be released until April? Call me cynical, but I see an effort to pump up his image when his approval ratings are in the basement.