President Obama deserves some real credit for his intention to offer clemency to a number of drug offenders. Executive clemency powers have been greatly underused in recent years. That’s a shame, because they’re a good way of righting obvious wrongs in our justice system. That said, the forthcoming clemency push raises lots of questions in my mind. Three stand out:


How many “easy cases” are there really in federal prisons? Certainly, there are some cases (like this one) that do seem to cry out for clemency. But the fact that I hear about the same handful of cases over and over makes me think that there aren’t that many in the federal system. I think that some mandatory minimums are too stiff and that at least some people are in prison for things that shouldn’t be crimes at all. That said, the overwhelming majority of people in federal prisons are guilty of pretty serious crimes. The best policy would mostly involve shortening sentences for people who were clearly guilty of bad acts but who have simply served enough time. That would be just, but it’s not easy.

What about drug money? People who end up in federal prison for offenses only involving the sale or transport of drugs are mostly players in major international drug rings who probably won’t get clemency of any sort. While truly low-level drug offenders (street runners and the like) almost never end up in federal custody at all, many of the more sympathetic cases prosecuted under federal law involve moving drug money. (Piper Kerman, the author of the book-turned-Netflix-series Orange Is the New Black, is a good example of a drug-money courier.) And this makes things a lot more complicated. Transferring money to an international criminal gang would (and should) continue to be illegal under all circumstances. To what extent will a clemency touch people convicted of money crimes that involved drugs? If it does, will there be a distinction made between, say, drug-money couriers and others guilty of financial crimes? If the clemency doesn’t touch money crimes, then a lot of the most sympathetic drug-related offenders will continue to languish behind bars. If it does — and is limited to drug offenders — then we’ll be granting more leniency to people who concealed financial transactions for purposes of selling drugs than to people who did so for other reasons. And that also seems unfair, unless we somehow want to privilege drug dealers. Thus, it seems to me that any review of drug crimes is going to have to involve a full review of just about every financial crime for which a person can be sent to federal prison.

Is this a major change in the tradition of clemency? Historically in the United States, far-reaching clemencies that I’m aware of have been either a way of healing after a divisive war (the Civil War and Vietnam) or an act in opposition to the death penalty (Governors George Ryan of Illinois and Winthrop Rockefeller of Arkansas). Obama proposes to do something much broader and dispense mercy based on criteria his administration develops rather than on some general principle. This is, to the best of my understanding, perfectly constitutional (I’m no expert on pardons), but it’s also something that American executives have not done in the past (although executives of other countries, both democratic and not, do it with some frequency).

Obama’s decision to make greater use of his clemency powers deserves at least two cheers. It offers the opportunity to right a lot of wrongs. That said, it’s not a solution to the problems of the real excesses of the war on drugs, too-long mandatory minimums and criminalization of things that really shouldn’t be crimes at all. Dealing with those problems will take action from Congress.

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