01/29/2014 02:18 pm ET Updated Mar 31, 2014

Obama's Opening to Mercy


Americans often, and wrongly, assert that the United States Constitution reflects a Christian heritage or the Ten Commandments. Nothing could be further from the truth -- the Constitution (unlike the Declaration of Independence) is a thoroughly secular document, and at times the Bill of Rights countermands the Ten Commandments directly. For example, the First Commandment directs "you shall have no other God before me," but the First Amendment guarantees freedom of religion.

There is one pure, unadulterated Judeo-Christian virtue in the Constitution, though: The mercy afforded through the pardon power. It is unique among the powers of the executive because neither of the other branches can exercise a check on it. Congress cannot limit the president's abilities to grant clemency, and courts cannot review them. There is no doubt that the framers intended clemency to involve mercy -- Alexander Hamilton described it exactly that way in Federalist 74.

Shortly before Christmas, we saw President Obama employ this power in a meaningful and strategic way. He granted 13 pardons (which remove some penalties associated with a felony conviction) and commuted eight prisoners (meaning that he shortened their sentences). The commutations were particularly significant, as they represented the largest number of commutations in a single day in over a decade. Moreover, the commutations were targeted towards a specific injustice, as each of those eight prisoners were serving long terms for crack cocaine offenses -- they were among the casualties of Congress and the DOJ's overzealousness in the War on Drugs. In granting these releases, the President served a remarkable combination of political values -- this is the rare act that serves racial justice, proportionality and a restraint of federal power all on the same platter.

By focusing his commutations on crack defendants, the President has signaled a remarkably principled and selfless course. This is not President Bush and Scooter Libby, or Bill Clinton and Marc Rich, or Haley Barbour and the felons who served him his dinner, or Gerald Ford and Richard Nixon -- this is the President showing mercy on those to whom he owes nothing, and from whom he has nothing to gain. Rather, he is granting them mercy because they were over-sentenced for their crimes, because these sentences solved no problem, and (importantly) because the sentencing regime that sent them there created striking and senseless racial disparities. He's granting them mercy because it is the right thing to do.

Yes, there are political risks (which may be one reason this vigorous use of clemency was not mentioned in the State of the Union address). Perhaps one of the freed prisoners will commit another offense. Opponents might try to argue that he is over-stepping his mandate, or buddying up to crack dealers.

Still, he did it. We can hope that this is not a completed course, but the first step in a broad and principled use of the pardon power. If so, it will both address a concern of justice (over-sentencing in crack cases) and return the pardon power to its proper place rather than the bottom drawer where Clinton and Bush left it to fester.

If that is the case, if there is more to come, then it will become a crucial part of Obama's legacy -- a legacy of mercy. Other presidents have left legacies of war, and legacies of economic change. Those can be good or bad, but it is hard to argue that they are Christian. In the end, the very end, if he expands the clemency trend he has started, it may be that this president is the most Christian of all. A legacy of mercy will do that.