Our lightly edited email exchange:
FOURNIER: OK. Let's get the personal disclosure out of the way. Have we ever met before?
OSLER: Yup—we met back when we were scrawny runners, student journalists, and friends in high school. I like to pretend we look pretty much the same now.
FOURNIER: We do. But that's off the record. So tell me why a former federal prosecutor from Detroit cares so passionately about clemency for convicted drug dealers and users. Why should anybody care about them?
OSLER: I'm still a prosecutor at heart. Some people are dangerous, and need to be locked up. But when I was prosecuting young black men for selling crack, I realized it did not make any difference. We were sweeping up low-wage labor, people who would be replaced the next day by someone else selling crack. Their sentences were out of line, too. Low-level, non-violent drug dealers were getting longer sentences than bank robbers and those who committed major frauds. We have changed the laws, but many of those people are still in prison even though they would be out if they had been sentenced under our current laws, sentencing guidelines, and policies. Keeping them in prison is a failure of justice and mercy at the same time. It wastes money, tears up lives, and solves no problem. As justice issues go, this should be an easy one, a layup.
FOURNIER: Then why the air balls? Tell me what you want President Obama to do and why you think he hasn't gotten it done.
OSLER: It's the same reason that GM can't fix an ignition switch that kills people: too much bureaucracy and not enough accountability (we Detroit guys can't stay away from car analogies). He sees the problem. He knows the broad scope of the pardon power, too, since he taught constitutional law for all those years at the University of Chicago. He just refuses to fix a broken system, something he could do with the stroke of a pen on an executive order.
FOURNIER: Why? Why does he refuse to do what he says is the right thing?
OSLER: My suspicion—and it is only that—is that he defers to old heads at the Department of Justice who are loath to give up any power. That's not a good reason, especially when voices on the Right and Left (even a white paper from the Heritage Foundation) recognize the conflict inherent in giving the DOJ an effective veto over a power meant by the Framers to be wielded by the president as a tool of balance against legislative and prosecutorial overreach.
FOURNIER: OK. Let's say you're advising him. What does he do today with the stroke of a pen to fix the system?
OSLER: Right now there are four different officials and their staffs analyzing each of these thousands of petitions: the pardon attorney, the deputy attorney general, the White House counsel, and the president. Physical files are literally shuttled between four different federal buildings. The deputy attorney general has a ton of other things to do, and works in a building full of prosecutors. That step should be cut out. Bring the pardon attorney over to the office with the White House counsel, and have petitions go directly to them. That way, a file goes to just two buildings, the cases get proper vetting, and there is efficiency. The Washington Post last Sunday had former Deputy Attorney General James Cole describe how he schlepped clemency files home on Saturday—the only time he had to consider them uninterrupted. That is the problem in a single image. The fix needs no appropriation, just political will and a pen. We know that President Obama has the pen, at least.