To excuse his failures, Barack Obama often whines about the limits of the modern presidency. The world is complicated. Republicans are mean. Voters are polarized. The media are balkanized. No president can "wave a magic wand," he gripes.
Which is why I'm baffled at Obama's refusal to boldly tackle a problem that has a bipartisan consensus and is clearly within his authority: the federal clemency process.
It is utterly broken—and needs the attention of a president who cares about the issue, has the mettle to fix it, and knows how to effectively wield his constitutional powers. I don't know whether the problem is Obama's lack of heart, guts, or savvy. But his general fecklessness is inexcusable.
The U.S. Constitution explicitly gives the president authority to commute sentences and grant pardons. It was designed to reverse convictions or temper unreasonably harsh punishments approved by legislators. Clemencies can also restore basic rights, like the right to vote, after a sentence is served.
The problem and possible solutions were detailed in a Washington Post op-ed published in November by law professors Rachel E. Barkow and Mark Osler (disclosure: Osler is a friend of mine):
Since the 1980s, presidents have utterly failed to use their constitutional pardon power as a systemic check on federal laws and prosecutors that go too far. As a series of ProPublica reports published in the Post revealed in 2011, recent presidents grant pardons and commutations rarely and arbitrarily, largely giving relief only when it is requested by members of Congress or other influential people. Obama has been among the worst of the lot.
Given a bipartisan shift in public sentiment against mass incarceration, Obama seems aware that there are times when a pardon is appropriate. In January, his administration began rolling out a temporary program, called Clemency Project 2014, to consider cases where nonviolent offenders are serving sentences of at least 10 years but would not be similarly sentenced today because of changes in the law. Deputy Attorney General James Cole asked private lawyers and nongovernmental organizations to identify cases that meet the announced criteria. But such a short-term program does nothing to fix the problematic regular clemency process that will survive this administration unless action is taken.
One may well ask why the president needed private help at all, since it is his job to identify meritorious cases for clemency.
It's a good question with no good answer. White House officials argue that the Clemency Project is a solution, but it's not. It's a dodge. Even as a short-term antidote, the project is a bureaucratic travesty—adding multiple levels of review from advocacy groups.
