Obama Should kick to the finish on clemency

We are in the heart of cross country season for high school and college athletes. Watching a race last week reminded me of this crucial point in the Obama presidency. Just as runners accelerate to the finish, knowing that moving up in those last few hundred yards may be the difference between a victory for their team or a loss, President Obama will finish his clemency project either with a flourish—thus ensuring his legacy for restoring the lost tool of the pardon power—or with a limp, coloring his record on criminal justice. If he fails to finish strong, it will not just be his legacy that suffers, but the hopes of prisoners with good cases and the sense of fairness one hopes for when justice and mercy meet the levers of power.

There is reason to hope that the finish will be strong. By all accounts, Pardon Attorney Robert Zauzmer and his staff have been dedicated and hard-working even in the face of inadequate resources for the task they face. While the machine of clemency is still too complicated, coursing through four different federal buildings and seven levels of review, that flawed machine is moving faster than some expected through sheer force of will and the sacrifice of those who work within it. President Obama has recently granted commutations of sentence to over 600 federal prisoners, nearly all of them serving very long terms for non-violent narcotics crimes.

{mosads}Yet, these last months are crucial. Many inmates who waited for months to be assigned a pro bono attorney by the clemency initiative never received one, and others were poorly served by the attorneys they were assigned (others, of course, received excellent representation). As a result of this unevenness, many petitioners with good cases are only now filing papers on their own. The administration has publicly promised to rule on all narcotics cases that were received by the Pardon Attorney by August 30. That promise, if kept, will still leave out in the cold hundreds and possibly thousands of people whose petitions were delayed through no fault of their own. Leaving them for the next administration offers little consolation: Donald Trump has criticized the clemency initiative, and Hillary Clinton has studiously avoided mentioning it at all.

The administration is only being realistic in recognizing that it cannot adequately review every petition filed right up to the day President Obama leaves office. There are ways to expedite the process, however. Certain groups of relatively easy cases could be identified and given priority, to ensure that those most deserving of clemency are not lost in the process. For example, those convicted of non-violent crack offenses who did not get the benefit of a 2010 law lowering the sentences for that kind of crime could be quickly spotted, screened for prison behavior, and given clemency. Similar attention could be given those who those whose cases triggered career offender provisions through prior non-violent drug crimes, or cases where mandatory minimums were triggered by such priors. If a request is made from the Department of Justice to the Sentencing Commission for data on these groups, the Sentencing Commission staff has the ability to quickly assemble the numbers. Also at hand is a quick proxy for prison behavior: Those who have behaved well will have worked their way down to medium or low-security facilities.

Many unheralded members of the Administration and the Department of Justice have been running this race for a while. They are, no doubt, reaching a point of exhaustion. But that is when the kick becomes determinative of ultimate success or failure.

A long time ago, I was a runner in high school. An older guy, a star of the team, once gave me a key piece of advice: The key to a strong kick is to start at the right time. If you accelerate early, before the finish line is directly ahead, your momentum will carry you past others and over the line. We have reached that point in this race. At stake is something more than a medal: the freedom of those who merit it, and the recovery of the Constitution’s pardon power as a principled tool of the President.

Osler is the Robert and Marion Short Professor of Law at the University of St. Thomas (MN) and co-founder of the Clemency Resource Center at NYU. Follow him on Twitter@Oslerguy

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