There are about 7,000 people serving federal prison sentences for crimes related to crack cocaine who would not still be there if they had, instead, possessed or sold powder cocaine. That's the non-sensical and costly result of Congress' panic over the crack epidemic of the 1980s and 1990s — and one that has profoundly unjust consequences since blacks were more likely to use crack and whites more likely to use powder cocaine. In 2010, Congress acted to reduce that disparity in mandatory minimum sentences, but that did no good for all the people already in prison.
Last year, recognizing the unfairness of those old laws, President Barack Obama made an important symbolic gesture when he granted clemency to eight people who had been languishing in prison under mandatory minimum sentences. This week, he went beyond symbolism with a real and systematic effort to begin undoing the wrongs caused by those pointlessly harsh sentencing laws. Still, it will not be enough. Congress must take the president's cue and act on legislation that will vastly increase the ability of those serving excessive sentences to actually get relief and to provide federal judges with greater flexibility in sentencing in future cases.
The new guidelines set out by the president for clemency cases are a sensible approach to identifying cases in which society is made no safer (and in fact, is made poorer to the tune of $30,000 a year per prisoner) by continuing to keep offenders behind bars in federal prison. The Justice Department will consider clemency for those who would have received a lower sentence under current law, have no record of violence before or after being locked up, have been in prison for at least 10 years, have demonstrated good behavior behind bars and have no significant criminal history. By the White House's estimate, that may cover several thousand of the 216,000 current federal inmates. It's not specifically targeted to those who were affected by the crack sentencing disparity, but it would likely cover many of them.
Perhaps more importantly, Mr. Obama is making changes in the Office of the Pardon Attorney, which has come under criticism in recent years as being excessively strict in its reviews of applications for pardons and clemency. Indeed, according to a ProPublica analysis of Justice Department data, Mr. Obama has to date exercised his clemency powers less than any of his four immediate predecessors, three of whom were Republicans. He only granted one clemency request in his entire first term. The president is replacing the head of that office, Ronald Rogers, a holdover from the George W. Bush administration, with Deborah Leff, who has been in charge of the Justice Department's "Access to Justice" initiative, which helps improve access to legal assistance for indigent defendants. One imagines she might be more sympathetic to the cause. Moreover, Attorney General Eric Holder said this week that the department would assign "potentially dozens of lawyers — with backgrounds in both prosecution and defense — to review applications and provide the rigorous scrutiny that all clemency applications require."
Even so, there's reason to doubt that any such centralized effort can wade through all the cases that could be eligible under these new criteria in the limited time the Obama administration has left. That's why, welcome as this new initiative is, Congress still needs to step in. There are a number of pieces of legislation under consideration to address the legacy of excessive mandatory minimum sentences, and perhaps the most prominent of them, the Smarter Sentencing Act, appears to have some momentum.
Sponsored by the odd-couple pairing of Sen. Dick Durbin, the Illinois Democrat who serves as assistant majority leader, and Sen. Mike Lee, the Republican and tea party favorite from Utah, the bill would not only provide a broader mechanism for judges to reconsider overly harsh sentences but would also give them greater flexibility in how they handle non-violent drug cases in the future. The legislation specifically authorizes judges to reduce excessive crack sentences under certain conditions, and in so doing, it brings far more resources to bear on the problem than even a beefed-up Office of the Pardon Attorney could. The bill moved this year from the Judiciary Committee to the Senate floor, where it was amended last month. A companion measure in the House, however, has not progressed.
Some Republican leaders have criticized President Obama's move toward expanding clemency as an end-run around Congress. Given that Congress has already recognized the unfairness of the disparate sentences for crack and powder cocaine, his action is consistent with the legislature's will. That said, if members of Congress want a say in how this policy is carried out, they should pass the Safer Sentencing Act and ensure that existing unjust sentences are handled systematically and are not repeated in the future.
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