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Expanded Clemency Program Deserves Bipartisan Support

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Co-authored by Nicole Fortier, Counsel in the Justice Program at the Brennan Center for Justice.

In a speech last month, Ohio Senator Rob Portman took a step toward placing his party firmly behind meaningful efforts to roll back mass incarceration in America. Portman, a respected voice of the Republican establishment, is joining the chorus of long-time libertarian criminal justice reform advocates like Senators Mike Lee and Rand Paul. It was a reminder both of the enormous potential for bipartisan cooperation on the issue -- and of how politics can hold the parties back from working together even on issues they agree on.

Criminal justice reform, Portman said, "Is an area where we could use an assist from the President." However President Obama's recent initiative encouraging clemency petitions from certain non-violent offenders, he continued, "May be within [Obama's] power, but it's like placing a band-aid on a deep wound... Instead of taking the easy path of executive action, I would ask the President to come to Congress to work with us to pass our legislation to reform federal prisons, leveraging our criminal justice system to incentivize long-term solutions based on what we know works... things like diversion programs, drug courts, job training, treatment for addiction and mental health."

Senator Portman is partially right. President Obama's new clemency initiative, while smart, is too small to make a serious dent in our mass incarceration epidemic. With five percent of the world's population, the United States has 25 percent of its prisoners. The Bureau of Prisons is eating up a steadily higher percentage of the Justice Department's budget -- each prisoner costs taxpayers an average of $30,000 a year -- leaving fewer dollars for priorities like law enforcement, courts, and the type of effective, evidence-based treatment programs Portman supports. Until Congress passes bills like Portman's Second Chance Reauthorization Act, or the bipartisan Smarter Sentencing Act, we'll remain a long way off from a fair, effective criminal justice system.

But the clemency program, which should in no way interfere with Congress' ability to act on these bills, can have a real impact. Legislative and executive action are not exclusive paths, but rather complementary ones. And there are ways President Obama could -- and should -- expand the program to make it more effective.

The clemency initiative seeks to address a real problem: a significant number of federal prisoners received their lengthy sentences for non-violent drug crimes. Overly harsh sentences for these crimes were one of the biggest drivers behind the quadrupling of America's incarcerated population since 1980. The clemency program would bring justice to the many of men and women in prison who would have received lower sentences under today's laws.

Yet the design of this process will create a system that moves too slowly for many prisoners, while leaving others untouched altogether. The president should direct DOJ to take a harder hitting approach and start with the estimated 5,000 eligible non-violent prisoners. In particular, prisoners who should have benefitted from the 2010 Fair Sentencing Act (FSA), which did not apply to those already in prison, should be a priority. The bipartisan FSA reduced the sentencing disparity for crack and powder cocaine possession from 100 to 1 to 18 to 1. It also reduced the maximum prison time for simple possession of any amount of crack to one year. So Congress has already decided that the egregiously over-punitive sentencing policies under which these men and women were incarcerated were unjust.

Instead of waiting for these prisoners to self-identify and come forward, the Justice Department should actively search out and identify all federal prisoners whose sentences would be reduced if the FSA were retroactively applied. It should encourage these prisoners to file clemency petitions and expedite their review. And it should recommend reduced sentences for all those inmates, excluding exceptional cases where public safety would be affected. It should also recommend the President expand clemency to include those sentenced between 2004 and 2010, who are arbitrarily excluded from the current clemency initiative because they haven't been in prison for at least 10 years.

In this, President Obama would be following in the steps of his predecessors. Under Article II of the Constitution, the president has the unreviewable power to pardon and commute federal sentences, broadly referred to as the "clemency" power. George Washington, for example, pardoned participants involved in the Pennsylvania Whiskey Rebellion, Jimmy Carter pardoned Vietnam-era violators of the Selective Service Act, and John F. Kennedy systematically commuted sentences for drug offenders sentenced under excessive mandatory minimum penalties.

If Portman and his colleagues in Congress are serious about the need for criminal justice reform, they should back an expanded clemency initiative by the White House. And President Obama should take up Portman's offer to work together to get bipartisan reform bills through Congress. Mass incarceration is a problem that won't go away unless the different branches - and parties - work together. Unlike so many other issues, there is no gaping ideological divide preventing them from doing so. They should start now.