Hillary Clinton and Sen. Bernie Sanders have both rooted their appeal to black voters on promises to address the over-incarceration of federal narcotics prisoners. Everyone from the Congressional Black Caucus to the Koch brothers supports this cause.
The candidates' ideas to counter over-incarceration appear solely to depend on congressional action, rather than direct executive action. They aren't running for Congress, though, and this is an issue where the stroke of the president's pen can have an immediate impact. The next president can follow President Barack Obama's blueprint and strategically use the power to pardon to release currently non-violent, low risk prisoners serving time for drug offenses.
As part of her plan for criminal justice reform, Ms. Clinton supports slashing mandatory minimum sentences in half. Mr. Sanders would reinstate parole in the federal system as part of his platform (it was eliminated in 1984). Both are great ideas, but they require that Congress pass legislation, and that could take years to accomplish. In addition to pursuing legislative reform, both candidates should pledge to vigorously use the pardon power granted to the president in the U.S. Constitution from the first month of their presidency to immediately reduce costly and unnecessary over-incarceration.
What is at stake is important. The president of the United States has the unique and ancient ability through the pardon power to commute federal sentences — granting prisoners release before their full sentences are served. There are no real limits on that power available to the other branches of government. Congress cannot restrict it. Judges cannot reverse the decision. If a president — or a presidential candidate — wants to promise to make a dent in over-incarceration, he or she must have a clear commitment to the robust and consistent use of clemency.
Other presidents have done exactly that. In 1963-64, President John F. Kennedy and Attorney General Robert Kennedy released more than 1 percent of the federal prison population by targeting those subjected to harsh drug laws. Today, that would be about 2,000 prisoners. President Ford went even further in 1974; he created a special bi-partisan commission to guide him in applying the pardon power to Vietnam-era draft dodgers and Army deserters. In just one year, he granted clemency to more than 14,000 people.
President Obama has talked about using clemency broadly, but to date he has granted 306 commutations, a tiny fraction of the over 8,000 petitions filed pursuant to his initiative that remain outstanding. Unless something truly unusual happens, even some of the most obvious candidates (those who would be out today if sentenced under drug laws and guidelines that have changed since they were sentenced) will likely not have their petitions reviewed and acted upon by the end of his term. That makes the next president's clemency policy particularly important.
The problem now is an unwieldy bureaucratic process that features seven distinct levels of review, each a stumbling block to justice. Much of that process rambles through the Department of Justice itself. Many critics of the process have focused on a conflict of interest some feel is inherent as long as the DOJ is involved. After all, should we really expect wide-ranging mercy from the very department that over-prosecuted people in the first place?
Hillary Clinton and Bernie Sanders want the public trust. One way to earn that trust would be to deliver on promises that are not contingent on the actions of Congress or others. Clemency is a solid way forward. If the candidates want the trust of communities damaged by over-incarceration, they should commit to using a more efficient process to continue and expand President Obama's initiative to free deserving candidates who were over-sentenced for drug offenses.
In adding clemency to their criminal justice reform toolkits, both candidates would be taking a principled stand, signaling that they are serious about smart strategies and ending the era of mass incarceration. If you see Hillary or Bernie on the campaign trail, ask them to take a stand. Black lives depend on it.