Attorney General Eric Holder's remarks about criminal justice to an American Bar Association gathering this week were in many ways groundbreaking. After nearly 35 years of "lock 'em up" rhetoric from public officials, a sitting United States attorney general has finally conceded that the policies resulting from that rhetoric may have gone too far.
Holder declared that the criminal justice system is "in too many respects broken." He added that "too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason." He noted that people convicted of drug crimes make up nearly half the federal prison population, and that "widespread incarceration at the federal, state and local levels is both ineffective and unsustainable."
There is significant symbolic value in someone in Holder's position uttering those words. Fifteen years ago, they would have been highly controversial, possibly career ending. But the consensus in the legal community appears to be that Holder's proposed reforms will at best put but a small dent in the federal prison population. In the end, the actual policy changes will give federal prosecutors yet more discretion (which means more power), but recommend they go easier on some defendants in some drug cases. Former federal prosecutor Ken White concluded of Holder's memo, "Great and terrible power, exercised with some lenience, is still great and terrible power."
But if Holder and his boss truly believe that our federal prisons are populated with large numbers of people who don't deserve to be locked up, there's something they could do immediately to change that: grant those people clemency. Indeed, if Holder and Obama feel the sentences some in the federal prison system are unjust, you could make a strong argument that they're obligated to commute those people's sentences, at least morally if not legally.
Unfortunately, the Obama administration's record here isn't just poor, it's historically poor. Thus far, after four and a half years in office, Obama has commuted exactly one sentence. (He has also issued 39 pardons, but all for people who had already served their sentences.) As journalist Jacob Sullum points out, even when compared to Richard Nixon -- the president who ushered in the modern drug war -- Obama looks heartless: "Nixon granted 60 commutations, 7 percent of the 892 applications he received, during his 67 months in office, while Obama has granted one out of 8,126, or 0.01 percent, over 55 months."
In fact, according to P.S. Ruckman, editor of PardonResearch.com, only three presidents have granted fewer commutations than Obama. Two of them died months into their first terms. The third, George Washington, served when there weren't very many people in federal prisons, and therefore few requests for mercy. In an ongoing investigative series, ProPublica has also looked at Obama's record in comparison to his more recent predecessors: "Under Reagan and Clinton, applicants for commutations had a 1 in 100 chance of success. Under George W. Bush, that fell to a little less than 1 in 1,000. Under Obama, an applicant's chance is slightly less than 1 in 5,000."
Another ProPublica piece published in May cited legal scholars and anonymous sources who put much of the blame on the Office of the U.S. Pardon Attorney. It's this office that makes pardon and commutation recommendations to the president. Without an endorsement from the office, Obama doesn't even see a petition.
In 2008, near the end of his term, President Bush appointed Ronald L. Rodgers to head up the Pardon Office. He's been there ever since. Prior 2008, Rodgers spent 10 years working as a drug warrior, first as a prosecuting attorney for the Narcotic and Dangerous Drug Section of the Justice Department's Criminal Division , then as director of the Drug Intelligence Unit of the Criminal Division.
Obama has decried overly harsh drug sentences for much of his political career. During the 2008 presidential campaign, he vowed to "review drug sentences to see where we can be smarter on crime and reduce the blind and counterproductive sentencing of nonviolent offenders."
It seems odd, then, that Obama has kept Rodgers, a man who long worked to put people in prison for drug crimes, in charge of reviewing and filtering the pardon and commutation petitions of people who may have been given such "blind and counterproductive" sentences.
ProPublica has found that under Rodgers, the Pardon Office has been denying petitions in batches, often with very little explanation (also a break from prior administrations).
Given that his office sits under the Department of Justice, Rodgers reports to Holder -- and, of course, ultimately to Obama. Perhaps Obama felt it would be untoward to replace Rodgers just months after his appointment. But five years have passed. If Obama and Holder were unhappy with Rodgers' performance, they could have quite easily replaced him by now, particularly after the series of ProPublica reports, which were also published in the Washington Post.
The White House responded to those reports by promising to reform the Pardon Office. That hasn't happened. As Julie Stewart of Families Against Mandatory Minimums wrote here in The Huffington Post last month, "The pardon power can't fix 30 years of flawed policy, but it can provide meaningful -- and best of all, immediate -- relief to thousands who have already served long sentences and who pose no threat to public safety. It has been a year since the White House said it would get moving on clemency. We're still waiting."
If Obama and Holder are really concerned about unfair sentences, they could release the unfairly sentenced with a stroke of a pen. The only logical conclusion to draw from the fact that they have not yet done so is that they're perfectly comfortable with the administration's paltry pardon record. That calls into question the authenticity of Holder's remarks this week, and it may also explain why the actual policy changes associated with those remarks are so underwhelming.