A More Historic Act of Clemency

On Monday, President Obama commuted the sentences of 46 federal prisoners locked up for nonviolent drug offenses, raising the total number of commutations he’s issued to 89. The decision came 15 months after former Attorney General Eric Holder announced the president’s request to prioritize clemency applications from nonviolent, well-behaved, oversentenced drug offenders.

Good news, no doubt, and an invitation to consider how we measure progress when it comes to executive clemency. Take The Washington Post as a baseline: “more than double the number of commutations he granted earlier this year.” Then there’s The New York Times: “exceeding that of any president since Lyndon B. Johnson.” And here, for the glass-mostly-emptiers, is the number of drug offenders serving time in federal prison: 95,265.

While there’s still time, the president should consider an act of clemency that measures up to history: pardoning every marijuana offender.

A few things bear mention. First, a commutation simply shortens jail-time. Unlike a pardon, it does not eliminate a criminal record, nor does it restore any civil rights lost upon conviction.

Second, the expression “nonviolent drug offense” creates a false equivalence between crimes that are incongruent; for instance, between crack-cocaine, which was involved in most of the sentences President Obama just commuted, and marijuana, which obtained exclusively in only two.

And finally, as the Times implied, presidential pardoning has declined since it pilloried Gerald Ford for pardoning Richard Nixon. (“A profoundly unwise, divisive and unjust act” is how its editorial page put it the morning after.) Historians have been more sympathetic to Ford’s decision, but every president since has weighed his pardon—the only executive power unchecked by Congress or the courts—against poisonous headlines and opinion polls, and to tragic effect.

“On the ride up Pennsylvania Avenue on Inauguration Day, I told Barack Obama about my frustrations with the pardon system,” George W. Bush recalled in his memoir. “I gave him a suggestion: announce a pardon policy early on, and stick to it.”

That morning, Bush ended his presidency with 189 pardons to his name, fewer than sworn punishers like Ronald Reagan (393) or Richard Nixon (863) or, for that matter, every two-term president since Thomas Jefferson. Of those 189, seven were black, four Latino, one Asian, and the other 176, white. Nevertheless a memo obtained by USA Today last April revealed that President Obama’s pardon policy early on was “largely modeled after the policy of George W. Bush.”

There’s a spin-lesson in all this—if you want to exaggerate any measure of progress, use the last half-century as a denominator. Compared with the last few administrations, commuting the sentences of 46 nonviolent drug offenders may seem historic. But history sets the bar higher still.

In May 1919, Woodrow Wilson was in Paris negotiating the Treaty of Versailles. It’s hard to think of a moment when any president had a better reason to shelve domestic affairs, but on Monday, May 12, Wilson telegraphed his secretary in Washington: “Please ask the Attorney General to advise me what action I can take with regard to removing the ban from the manufacture of drink.” A week later Wilson sent another cable, this time to Congress: “It seems to me entirely safe now to remove the ban upon the manufacture and sale of wines and beers.”

Congress declined, and instead introduced a bill to shore up the Eighteenth Amendment, known as the Volstead Act. Wilson vetoed the Act. Congress overrode his veto. With no legislative recourse, Wilson chipped away at Prohibition using the executive power that Congress could not check: his pardon. By the end of his second term, alcohol offenders accounted for more than one-fifth of Wilson’s clemency recipients.

Unlike Wilson, Franklin D. Roosevelt had been ambivalent about Prohibition. During his time in the New York State Senate, the powerful Anti-Saloon League had praised Roosevelt’s “perfect voting record.” Even after the repeal of Prohibition became central to his presidential platform, according to one biographer, “the story persisted that whatever Roosevelt might say, there was a voting record to prove he was ‘dry’ at heart.” But when Prohibition was repealed by popular demand in 1933, FDR went on a pardoning spree that outclassed his predecessors, approving alcohol offenders who had been previously rejected or otherwise hadn’t even applied.

Wilson used his pardon to protest an impossible law. Roosevelt used his to acknowledge the change in social norms.

Data: P.S. Ruckman, Jr.

The time when most Americans condoned alcohol consumption despite Prohibition rhymes with our own, when 53 percent of the country supports the legalization of marijuana, and pot laws have been curtailed in 23 states and the nation’s capital. And just as Prohibition offered a legal apparatus for racism, today, the racial imbalances in marijuana arrests and sentencing are so stark that many in this country consider them a proxy for racial control. In 49 states, blacks are more likely than whites to be arrested for marijuana—in the worst offending counties, by a factor of eight. The limit of this analogy is scale—together, Wilson and Roosevelt issued some 2,000 alcohol-related acts of clemency. In 2012 alone, almost 7,000 people were convicted in federal courts for marijuana offenses, according to the U.S. Sentencing Commission, more than for any other type of drug.

I recently ran the idea of amnesty for all marijuana offenders past one of the country’s foremost pardons scholars, P. S. Ruckman Jr. “Courage and leadership—that’s what it comes down to,” he said. “Sure, we could wait until all the states line up or the Supreme Court reinterprets the law, but why? The president could step up to the plate. Whether he will…”

Stepping up would mean emptier courts, for starters, and more than 10 billion dollars in deferred annual law-enforcement spending. And by pardoning federal marijuana offenders, the president would set a powerful precedent for governors. Even if his lead were followed only by the governors of those states in which pot laws have already softened, the number of Americans released from the criminal justice system would quickly exceed the populations of the largest American cities. Since 1970, U.S. law enforcement has made over 24 million arrests for marijuana offenses, the overwhelming majority of which targeted people of color.

The precedents are clear. When an executive believes that the letter of the law runs counter to the public interest, it’s his prerogative to pardon. Consider, for instance, the amnesties granted to tax-resisting Whiskey Rebels by Washington and Adams, to aliens and seditionists by Jefferson, to pirates by Madison, to Confederate soldiers by Johnson, to draft-dodgers by Carter—or, in effect, to 4.3 million undocumented immigrants last November, by President Obama. Just as that decision pressed Congress and state legislatures to come around on immigration, amnesty for marijuana offenders would send a reality check—to governors who wield their own pardon power, to police and judges, as well as to employers, landlords, and college admissions committees—that most Americans don’t believe marijuana-use needs punishing, and that there’s justice in forgiveness.