The 'Magic Wand' Obama Should Wave
On clemency reform, Obama has the power and the responsibility to act.
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.
I don't know Obama's motives here. Does he want to kill clemency reform? Or does he just have no clue how to manage a complicated problem?
If he wants to do some good and do it without Congress, Obama can unilaterally approve scores of clemency petitions -- far above the symbolic effort he's made to date. He can use the magic wand the Founders gave him.
He can be even bolder: Scrap the broken institution and hand his successors a new one. First, remove the process from the Justice Department—which has an inherent conflict of interest—and put it in the hands of a small independent agency.
Obama would need Congress's support to fund such an agency, which shouldn't be a problem given the shift against the moral and financial costs of mass incarcerations.
Second, appoint a bipartisan commission with expertise in criminal law to review and track data on recidivism and related issues. "And because the commission would be politically balanced, the president would not need to worry about being exposed to Willie Horton-style attacks, should a convict commit some new crime after being freed; these will be cases that people of all political stripes agreed deserved relief," wrote Barkow and Osler.
"President Gerald Ford used this device in 1974 when he created a temporary board to quickly process about 21,000 Vietnam-era draft-evasion and deserter cases," the law professors continued. "One reason we know the Ford plan was a political success is because so few people remember it."
Obama could make a success out of clemency reform.
Instead, after saying he couldn't "wave a magic wand" and protect immigrants from deportation, he flip-flopped. Now his executive action on immigration is the subject of a court battle; a federal judge temporarily blocked it. His unilateral action on climate change also faces GOP resistance and court challenges.
And that makes the president whine.