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Criminal Injustice

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For decades, Congress has implemented policies that distort America's criminal justice system and tip the scales of justice in favor of punishment over rehabilitation. As a matter of civil rights and basic justice, our criminal justice system must change. Fortunately, the Obama Administration recognizes the unacceptable status quo, and recently announced an initiative to spur change. This new proposal will expedite the clemency process for thousands of non-violent offenders serving lengthy sentences behind bars -- sentences they would not have received had they been sentenced today due to changes in the law.

Regrettably, this initiative has come under fire, with the vitriol taking the form of executive fiat and the worthiness of the clemency candidates. But this criticism is based on rhetoric, not reality.

Article II, Section 2, of the Constitution provides that the President "shall have power to grant reprieves and pardons for offenses against the United States." The Constitution bestows pardon power without restriction or equivocation. For critics to suggest otherwise betrays both a fundamental misreading of the Constitution and a misremembered history of prior Presidents using that power.

As a textual matter, the pardon power is one of the broadest grants of authority in the Constitution. The only two limits that the Constitution imposes on that plenary power are its applicability to offenses against the United States (i.e., not civil or state cases) and the prohibition on its use in an impeachment process.

Borrowing from English law, our founding fathers understood that the executive served an important role to counterbalance the possible tyranny of the legislature and the courts. They understood that in the laudable quest for justice, injustice could result from rush to judgment, underdeveloped factual records, and emotion glorified over reason. They understood that pardons and clemency were necessary adjuncts to mitigate harsh penalties.

In The Federalist No. 74, Alexander Hamilton explained it succinctly when he wrote, "[H]umanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. 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." Hamilton argued that the executive's use of the pardon power could be essential in the restoration of peace in the union during times of domestic crisis.

Building on the text and history of the pardon power -- and paraphrasing Hamilton -- the question presented to us now is this: Has our federal criminal code, in its gluttony for mandatory minimums, partaken so much of that sanguine, severe and cruel injustice that humanity and good policy now dictate access to an exception in favor of those unfortunate enough to be sentenced under them?

The Obama Administration has answered with a resounding "yes," the same answer many of us would give. The nonviolent, low-level inmates with records of good behavior during the 10 years or more that they have already served for sentences that would not be imposed today due to changes in the law are precisely the individuals for whom this relief was intended. These potential clemency recipients have experienced severe, cruel, and unjust mandatory sentences.

For purposes of comparison, Lewis Libby, former chief of staff to Vice President Cheney, was convicted of perjury and obstruction in connection with the investigation into who had revealed the identity of a covert CIA operative. For these actions, Mr. Libby received a two-and-a-half-year sentence, and did not serve a day in prison because his sentence was commuted merely two months afterward.

Who then is more deserving of a second chance?

To myself -- and an increasing number of reform-minded lawmakers -- there is no question that contributing members of our society with a minor transgression are worthy of a second chance under President Obama's clemency initiative. Relief to them gives form to our Founding Father's prescience that the executive clemency power and the independence of the judiciary are necessary bulwarks against the severity and tyranny that the majority could exact against a powerless minority.

While clemency attempts to fix our broken system of mandatory sentencing solely on the back end, clemency is not a guarantee in any circumstance, certainly not when it depends on the discretion of the President. Clemency provides relief to a few lucky individuals plucked from the stack of petitions, but does not repair the inherently broken system that put thousands of individuals behind bars in the first place. Clemency is therefore not a viable or intended permanent solution.

But Congressional action is. By writing laws with logical, proportional and effective penalties, Congress can put a stop to existing and continuing injustice.

To achieve this, Congress first needs to stop passing laws that contain mandatory sentencing provisions. Mandatory sentences do not work: they discriminate racially, treat low-level offenders identically to kingpins for whom these laws were intended; and they undermine any chance of rehabilitation. Prosecutors too often wield enhancements to pressure defendants to plead rather than exercise their constitutional right to go to trial -- or to punish those that do. These mandatory weapons rob people of their freedom and families of their loved ones.

Second, Congress needs to eliminate, or greatly reduce, existing mandatory minimums and grant retroactive relief to those sentenced before current changes to sentencing policies took effect. Further, Congress needs to return discretion to judges, empowering them to impose sentences that truly fit the crime and the person before them, rather than being conscripted to impose mandatory minimums they may oppose.

Finally, Congress has a moral obligation to achieve a 1:1 ratio in sentencing for crack cocaine cases compared to powder cocaine cases. At the height of the so-called "War on Drugs," Congress passed laws that created 100:1 crack cocaine to powder cocaine disparity at the time of sentencing. Not only was that ratio not based on sound scientific or empirical evidence, but it perpetrated existing prejudices in how defendants of color were targeted, charged, and sentenced. Four years ago, during my tenure as Chairman, the U.S. House Judiciary Committee worked to reduce this arbitrary and discriminatory disparity to 18:1 by passing the Fair Sentencing Act of 2010 into law. To restore a semblance of justice in our drug laws, Congress must achieve a 1:1 parity.

Clemency is a first step, but Congress has duty -- regardless of political affiliation -- to reintroduce a sense of justice to a dated, disastrous and discriminatory regime.