As President Obama and Attorney General Eric Holder ramp up the administration's support for reforming federal mandatory minimum sentencing laws, there is one tool they have not used yet and should: the presidential pardon power.
That power allows the president to pardon former offenders, thus restoring their rights. It also allows him to commute (reduce) the sentences of federal prisoners serving punishments that are unjust, unnecessary by virtue of the person's extraordinary rehabilitation, or both. President Obama will soon issue pardons to two otherwise destined-for-dinner Thanksgiving turkeys. Granting some commutations for humans would not just use the pardon power as our founding fathers intended, but also could add momentum to sentencing reform bills being considered by the Senate Judiciary Committee in the next several weeks.
More commutations would also fatten up President Obama's rail-thin pardoning record of a mere 39 pardons and a single commutation -- the worst tally of any president in history. This lack of commutations and pardons is puzzling from an administration that has otherwise been active and vocal on federal criminal justice reform.
President Obama and his attorney general, Eric Holder, have recently instructed federal prosecutors not to apply mandatory minimum sentences to some nonviolent drug offenders. Public safety concerns fuel Mr. Holder's interest in sentencing reform. Currently, one of every four Justice Department dollars is spent on maintaining the federal prison system. Half of all federal prisoners are drug offenders, and most of them are small fish with minor records and no use of guns or violence in their crimes.
Giving nonviolent offenders decades in prison siphons off money that could be spent on catching terrorists, or funding the cheaper and more effective drug court and intensive probation programs that states are using to cut crime. Reforming mandatory minimum sentences will actually make us safer. Weldon Angelos' 55-year mandatory minimum sentence for selling marijuana is longer than the prison terms of many child rapists and airline hijackers. Commuting his sentence would send a strong message to Congress: it's time to save scarce prison cells and funding for the truly violent and dangerous.
Fifty years ago, another reform-minded U.S. president and his attorney general were frustrated about mandatory minimum drug sentences, and they did what they could until Congress acted. President John F. Kennedy and attorney general Robert F. Kennedy criticized American sentencing policy by commuting the excessive sentences of many federal drug offenders. It took Congress until 1970 to repeal the mandatory minimum sentences the Kennedys opposed, in legislation signed into law by President Richard Nixon.
With as much bipartisan and presidential support as mandatory minimum sentencing reform has right now, it shouldn't take another decade for Congress to act. But until a bill lands on his desk, President Obama should use the pardon power to correct any injustices he can. He may discover that correcting one injustice today could inspire Congress to prevent many injustices tomorrow.