Pardons, Presidents, and Drugs
Attorney-General Holder, in a recent speech to the American Bar Association, admitted that the War on Drugs and the criminal justice system are severely broken. As a step toward repair, he announced that federal prosecutors would begin drafting charging documents in minor drug cases not involving violence so that mandatory minimum sentences would not be required.
Some immediately pointed out that, in a sense, this new approach would continue a major injustice in that, while new defendants would be spared these draconian sentences, thousands were now in prison serving long sentences imposed under those laws. Many proposed that the president use his pardoning power to grant relief to those currently serving those sentences.
Using the pardon power would involve more than the stroke of a pen. Determining the wisdom and practicality of that program requires answering at least four questions:
Can he do it?
Should he do it?
How would he do it?
What would happen then?
The power to pardon is granted to the president in Article II, but no details or specifics are enumerated. Past practice has incorporated commutation of sentences and has used it both prospectively, even before charges are filed, and retroactively, not only to current sentences but to convictions for which the convict has completed his sentence and been discharged from custody. It has even been used posthumously. Jimmy Carter may provide some guidance to the extent of the pardon power; he extended a wide-spread amnesty to Viet Nam era draft evaders. One shadowy area is whether the president’s power extends to state convictions. It is expressly granted in the constitution without limits, so no reason for limiting it only to federal convictions is obvious.
Should a pardon program be set in place? As a matter of fairness and justice, imprisoning these people for long terms while others guilty of crimes with much more serious social impact are treated less harshly is unconscionable. As a fiscal matter, keeping one person in federal prison for one year costs about $50,000; multiplied by thousands affected by minimum sentences, the total is a major burden on the federal budget. Each year a person spends in prison increases his difficulty in reintegrating into society – finding a job, getting a place to live, reestablishing family networks. The burden on families living without a breadwinner or doing without a parent is heavy. All of these costs would be ameliorated by a pardon program without incurring any measurable social costs.
Implementing a pardon program, which would involve thousands of cases, could be an administrative and bureaucratic nightmare. Even the simple problem of identifying the tens of thousands of cases that would need to be reviewed would require plowing through mountains of records, many of which date back to times before complete computerization of those records (not as long ago as most people would think). The prison records rarely include anything before the judgment of conviction. Since most convictions are based on guilty pleas, not trials, even the court records may omit facts needed for pardon decisions; these facts, if anywhere, are in the individual prosecutor’s files. These court and prosecutorial files are distributed in over four hundred judicial districts. If state-level convictions are included, the search would have to be on a county-by-county basis. This mass of records argues against a top-down executive originated system and in favor of a bottom-up method initiated by the individual petitioners. In either case, a substantial bureaucracy will be necessary to process the cases. It could probably be superimposed on an existing agency: U. S. Attorneys, the FBI, or the federal defender’s offices. Something like Administrative Law Judges would be needed to process the claims, similar to those in Immigration cases or Social Security claims. In any case, this bureaucratic overload with be temporary, complicating the staffing and budgetary processes. Although these processes sound expensive, the savings from reduced imprisonment discussed above, will pay for them multiple times.
Commutation, reduction of sentence, will be preferable to pardon in many, perhaps most, cases. Two reasons support this preference. First, these are not cases of wrongful or improper convictions; and those convicted do not have a claim to have their records expunged, the result of a pardon. While their sentences are excessive, these people did commit the crimes with which they were charged, and merit punishment and the resulting disabilities.
The second virtue of commutation, paradoxical as it sounds, is that it could be used to extend the time before the convict is released. Pardon or commutation to time already served would entitle the recipient to immediate release. But release is perilous for long-term convicts. They have lost family and social connections. They have no current job skills. Those who have been confined for ten years or more possibly have not seen a cell phone, an ATM, or the internet. The Bureau of Prisons recognizes this problem and shifts releasees to halfway houses about three months before their release date. There these people are provided shelter, counseling, and employment assistance, greatly improving their probability of success in the outside world. Those who have been imprisoned for at least five years should be offered a commutation release date at least three months in the future, allowing them to have the benefit of halfway house transaction.
The United States has been on a Prohibition spree for over forty years. As anyone who has hosted a wild party knows, the next morning’s mess can be horrible to clean up. Drug Prohibition is coming to an end. Part of the sobering up is cleaning up the mess it left. The suffering of people warehoused by excessive, unjust sentencing is part of that mess. Now is the time to grab the trash bags and mops and to start the massive cleaning job we have created.