Journalism in the Public Interest

The Sweeping Presidential Power to Help Prisoners That Holder Didn’t Mention


Attorney General Eric Holder (SAUL LOEB/AFP/Getty Images)

This week, Attorney General Eric Holder spoke out against the impacts of “draconian” sentences for nonviolent drug offenders. “Too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason,” said Holder.

But in unveiling the new “smart on crime” initiative, Holder skipped mention of the sweeping power the president has to shorten or forgive a federal prisoner’s sentence.

President Obama has given just one person early release from prison. As ProPublica has documented, Obama has overall granted clemency at a lower rate than any modern president, which includes both commutations – early release – and pardons. Last year, ProPublica reported that the Justice Department’s Office of the Pardon Attorney rarely gives positive clemency recommendations to the president. Experts have been calling for reform of the entire clemency process.

“Holder’s speech begs the question, why is not more attention given to the broken pardons office?” said Robert Ehrlich, a former Republican governor of Maryland who recently started a law clinic devoted to pardons

One person who is still waiting to hear about his petition for commutation is Clarence Aaron. He has been in prison since 1993, when he was sentenced to three life terms for his role in a drug deal. Aaron was not the buyer, seller, nor supplier of the drugs. It was his first criminal offense.

The White House ordered a fresh review of Aaron’s petition last year after ProPublica found that the  pardon attorney, Ronald Rodgers, had misrepresented Aaron’s case when it was brought to President George W. Bush. An Inspector General’s report released in December supported ProPublica’s findings, and referred the incident to the Deputy Attorney General to determine if “administrative action is appropriate.”

Nine months later, Justice Department spokesman Wyn Hornbuckle says the “issues raised in the report are still being examined.”

In his speech, Holder expressed concern about racial disparities in sentencing and treatment of prisoners. In 2011, a ProPublica investigation found that whites were four times as likely to receive pardons as minorities. Following our story, the Justice Department commissioned a study on racial disparities in pardons. Hornbuckle says that study is “ongoing.”

“The clemency process will need to be invigorated both from the bottom up and the top down,” said Jeffrey Crouch, a professor at American University, who wrote a book on pardons. “One step is the pardon attorney giving applicants a fair review and a positive recommendation. The other step is President Obama being more willing to use his pardon power.”

For now, Holder’s initiative has little to offer prisoners already behind bars. He directed prosecutors to avoid charges that carried mandatory minimum sentences for certain low-level, nonviolent drug offenders and urged the passage of legislation to change those sentencing requirements. But in 2010, there were more than 75,000 people in federal custody that had been given mandatory sentences.

“We’ve been getting a lot of calls asking, does this mean my loved one gets to go home?” said Molly Gill, government affairs counsel at Families Against Mandatory Minimums. “For the vast majority of people it doesn’t change their sentences and it isn’t retroactive.” (Holder did expand “compassionate release” for some elderly prisoners.)  

While clemency does not generally reach wide swaths of prisoners, Presidents Gerald Ford and Jimmy Carter used it to affect policy on a larger scale, creating programs to forgive thousands of Vietnam War draft evaders.

In the 1960s, Attorney General Robert F. Kennedy also took a stand against what he described as “grossly unjust” outcomes of sentencing practices – and used commutations to do so. He directed federal prison wardens to seek out and bring him prisoners deserving of early release. Kennedy acknowledged that presidential commutations were “at best only stop-gaps” in a sentencing regime that needed reform. President John F. Kennedy commuted 100 sentences in total, and President Lyndon B. Johnson 226.

Mark Osler, a law professor at St. Thomas University who runs a clinic on commutations, said Obama could also do more. “Holder’s emphasis on how wrong these laws have been, and how damaging the Justice Department’s enforcement of those laws has been, gives me hope that this only the first step,” Osler said. 

FIRST, ONE MUST, as a primordial condition precedent, ACCEPT the
‘benefits’ or stated intents are secondary issues, IF EVER CARRIED OUT!

This ‘HOLDER, I AM A GOOD GUY’ is just another ‘tap dance’ designed, constructed and uttered to further political favor for the 2014 ELECTION and beyond and is, part and parcel, a program of DAMAGE CONTROL that began in earnest among the AFRICAN-AMERICAN and HISPANIC voting blocks and in nexus with the ‘TRAVON MARTIN’ verdict, as well as, scandal after scandal and malfeasance.

THERE ‘policy changes’[WHAT?] are calculated distractions,
mis-informations and unmitigated prevarications - aka LIES!

THIS IS NOTHING MORE THAN CORRUPTION, philosophical, Constitutional, transactional, political and ethical that infects and
effects every act recorded by OBAMA-ACTS, et al. ALL suffers
from a copious record of political psychosis - unbelievable,
psychosis under color of authority!

THE UGLY REALITY IS that given the ‘scandal’ after scandal,
hardly “phoney”, any rational competent intellect MUST begin evaluation of every act by this FEDERAL GOVERNMENT with a proper prism constructed with the PREMISE above!

THERE IS, SIMPLY, NO OTHER possibility. Ayn Rand said:
- - 50+ years after that narrative, HOW RIGHT IT IS!  CORRUPTION
AMERICAN STYLE is alive, well and the ‘standard’ of OBAMA,
et al.

You write pretty well, Warren, but your mix of CapsLock and citation of Ayn Rand out you as a loony.

Oh how I wish for the ideals of the good old days when Jimmy Stewart (Mr Smith) went to Washingon. As a little boy these actors gave me hope and idealism.  Though jaded these days I hold to ideals and a belief the pendulum will obey the laws of physics and not swing further in any one direction.

Our President is a politician. That reality should moderate our views always, regardless of party.

Steven M.Stringham

Aug. 14, 2013, 10:42 p.m.

Gotta say the article sounds a bit strident, and overplayed.  I’d like to know how said presidential pardons have been applied to capital crimes over the last 60 to 70 years.

As for Loony Warren.  Get a grip!

Steven M. Stringham

Aug. 14, 2013, 10:49 p.m.

My error.  Didn’t read the article closely enough, but I still have to ask the same question about more serious felonies. A felony drug conviction, for instance is a sight more serious than a draft dodger’s transgression, for example.

When you have private prisons and bad judges , you might have a problem.

You are right, Bud.  Ranting without a whisper of references for their accusations and prognoses is so boring.  Let’s see what the results are before we judge.
LBJ said that politics is the “art of the possible”.  I hope that the “possible” helps some of us out, if the proposal comes to fruition. 
A candidate who is not a “politician” will never get elected.

Holder was ‘Johnny on the spot’ for carrying out the goal. The black community pushing this for sometime. The political atmosphere was ripe for Holder to carry out the agenda. Next will be to open prison doors for many. There is already a push to, for lack of a better word, hide jail and prison records for purposes of checks for employment which Holder said disproportionately affects blacks and Hispanics.

Certainly there are times when in the judicial process that unfair sentencing is plausible .

Trying to hide the problem by not enforcing laws does not solve any problem nor does it make the problems go away.

Pushing people towards rehab programs is not going to solve a darn thing. Recidivism is extremely high. So whats next?

I agree with Holder on one condition. Release all those who are in prison for possession of pot, to make room for the REAL criminals; Holder, Obama, Reid, Pelosi, Frank, Rangel, Clinton, etc.

Steven M. Stringham

Aug. 14, 2013, 11:43 p.m.

Okay.  After reading more closely and carefully, methinks ProPublica doth protest too much. About all the article really accomplishes is giving Maryland’s former Republican governor, Robert Ehrlich, a soapbox from which to cry his crocodile tears and toss an appalled stink bomb or two at President Obama.  Further the article seems to promote what it expects Obama will not do (pardon Clarence Aaron) with little or no evidence to prove it.

Thought I’d read more responsible reporting here.  Instead there’s this strident piece of crap.  Right now I’m humming, “Love me!  Love me! Love me!  I’m a liberal!”, with the same enthusiasm of Phil Ochs during the Nixon tyranny.  The singer knew hypocrisy when he saw it so many years ago.  Why would Progressives think the same failure of character is something special right now? Get with it people. So you’re disappointed that your president doesn’t shuck and jive to your every wish.  Does this mean you should hand over our democracy to the wolves trying to pull it down and apart while you bicker and snivel about the bad things your president might have done and may do before he leaves office?  Good God, I hope not.

I thought presidential pardons were reserved for presidential donors.  That was my understanding of how most recent presidents have used them.  From Nixon onwards, making sure the good ol’ boys have a clean slate to go forth and sin some more.  Certainly Clinton and Bush Jr used them in that vein.

Case in point.  Leonard Peltier.

Our prisons have become factories that produce hardened criminals. We take relatively innocent young men, desensitize them and provide them with with experienced teachers in the world of violent crime.

When society is taught that “criminals” are not human beings through repeated TV dramas and orchestrated reality shows the results are inhumane prisons and sentences. There are some people who are truly evil but most convicts are only slightly misaligned.  Criminals are not usually made from a different fabric; they usually differ from the rest of us only by a thread or two. Often the line between a convict and a free man is drawn as a matter of chance; some get caught and others do not. Far too often the line is drawn by race and economic conditions.

For most inmates the first day of incarceration should be used to prepare for the last day. We shouldn’t be training criminals; we should be training citizens. I have been inside.

Mr. Shahislam

Aug. 15, 2013, 6:31 a.m.

Sorry, have to be blunt: This is the time for USA as a world-changing leader to act like a benevolent dictator of perfecting the imbalanced state of many things starting from practices of ‘outdated law businesses’ to failing ‘old formulas of economists’ etc.
In the upcoming years, Obama-Biden will still be the best choice for North-Americans to let the positive change continue for another decade at least, before we allow again dull-sweet female leadership to maintain ‘the honest-men-made drastic positive changes’ in dishonestly manipulable fine lines of all kinds of law-books made by dumb intelligence of the old.
Remember: in GOD we must trust. (Twitter: shahislam16 or 13).

Joel’s right.  Limiting mandatory sentencing use in the future isn’t really useful to the millions of people who are in prison today for essentially no reason.  Pardons would be a good start.

Well, the cynical side of me thinks there’s a reason.  As YellowDog points out, prisons manufacture hardened criminals, especially when they go in for a minor offense and get abused for years or decades, while drug lords and bank CEOs rake in a few more hundred million every year.

There’s good motivation, there.  If you can turn a non-violent offender into a future violent offender, then the War on Drugs (and its ever-increasing budget) is clearly warranted, because we’re preventing this transformation from happening by decades.  At least, that’s what it’ll say on the paperwork and in the stump speeches.

Also, never forget that most prisons are for profit.  Every extra conviction, every extra year of sentencing, is money in some pocket that re-opens every election season.

Basically, I’ll believe it all when I see it or until I see something new that we’re supposed to demonize and declare War on.

Resultant screaming headlines: “Obama Circumvents Legal System by Executive Order - Empties out Federal Prisons.

Constance M Tomlin

Aug. 15, 2013, 5:36 p.m.

If Holder wants to say that the sentencing guidelines were wrong and needs to be fixed, then he needs to come up with a solution to right the wrongs associated with that policy.  Just saying now we will do it this way, in no way protects the public from the effects of this policy.  To release inmates who have been held for long periods of time, back to the same drug infested environment that they came from, in the same condition they were in when they were sentenced, is not a wise move.  To rectify this situation, there needs to be re-entry measures in place by using the monies spent to warehouse the individuals to rehabilitate them and have them able to compete in society.  To disregard the actions of those who were guilty of drug crimes but maybe never convicted because of political connections is not the way to go.  The citizens spent lots of money on this war on drugs that hasn’t produced the desired results. To the legislators who hatched up the short-sighted laws that made crimes of crack cocaine so felonious, but powder cocaine possession, from which crack is produced, a misdemeanor their repercussions are now showing up in the drug habits that are plaguing them.  They don’t get a hearty oh well it doesn’t matter now.  They are now drug addicts still on the public dole and need to be cleared out of office.  Whether you want to change the drug laws, the sentencing guidelines or the penalties,  we are still talking about COCAINE!!!

POTUS has shown a maverick spirit of stretching the office’s power, lately replacing “lame duck” with “Executive Action”.  If POTUS has convictions as stated by AG Holder, and since he has more “flexibility” now, there’s no reason he can’t begin reviewing Federal prisoners’ sentences and commuting them in whole or part.  According to 39 pardons and 1 commutation has been granted since 1/20/2009 says present U.S. Pardon attorney Ronald L. Rodgers.  This is a rate below that of the President’s predecessors in office.  I cannot see why POTUS would have any objection of using presidential clemency to reform the results of the War on Drugs.  He has claimed powers far murkier than the presidential pardon.

And yes, I do worry that POTUS will pardon the millions of illegal aliens currently residing in the U.S. in such a way as to boost their chance at citizenship or permanent residency.  If each day spent in country is a fresh offense, POTUS can pardon that in advance.  And, a la Ford pardoning Nixon, an individual’s request, even an indictment let alone a conviction is unnecessary.  Perhaps POTUS can pardon by definition.  Or he can use PRISM, that great investigative instrument aimed only at persons with foreign ties, to compile a list of names and addresses. 

In order to be a transformative POTUS, someone we’ll not soon forget, he’ll need to water the stock of the current voting public.  It’s a sort of “the ruling elite replacing a stubborn electorate with reliable clients” rather than the usual “the voters threw the rascals out.”  [And the first week of January following:  “Welcome New Rascals”].

Welcome to Obama’s America.  Share and enjoy.

A modest proposal:  The constitution should be amended to limit Presidential Pardons to the years before the final year of each term in office.  Yes, yes, re-election could create a scheduling problem.

If a president should pardon a Marc Rich [so aptly named for his generous contributions to Bill Clinton, the Democratic party and to a rising star running for U.S. Senate in New York, Hillary Clinton; with a positive clemency recommendation by a then-Deputy AG named Eric Holder], for example, he’d have to live with the stink while in office for a year.

Mr. Holder probably is unaware that he and those of his ilk is a large part of the problem with Justice in this country.

His standing up and mouthing policy platitudes does little unless Congress undoes some of the ignorant actions they have taken over the past two decades.

Were I desireous of creating a criminal underclass I suspect it might be accomplished by incarceratimg the perhaps misguided alongside the sociopaths and misogenists;  then let them out together to the same ‘half-way’ houses for reintegration into ‘society’.

“Compassionate release?”

Isn’t that just dumping sick and dying prisoners on the streets so that the government doesn’t have to pay for their health care in the case of terminal diseases, when those expenses tend to skyrocket?

Compassionate, my fat fanny.

I used to work for the parole authority in Ohio.  Compassionate release operated but they usually waited until the final illness after the State had paid for a lot of care.  Since no program anywhere else would take someone near death’s door, the prisoner’s parole residence automatically defaulted to the county where convicted.  By the time we could get anything organized, the guy was dead.  Happened twice anyhow.

clarence swinney

Aug. 28, 2013, 4:02 p.m.

1980 to 2013 Fact Checker
Reagan ruined the Savings and Loans. Got us involved in 5 foreign conflicts.
Increased Spending by 80%. Increased Debt by 189%.
Cut 218,000 jobs per month to 175,000.

Bush I raised taxes to fight the Reagan inherited debt.
Consequently, he lost to Clinton.

Clinton signed off on NAFTA, Repeal of Glass Steagall, Modernization of the Commodities market, gave us a Surplus not a deficit. He got full employment by adding 237,000 jobs per month and, in one month, had a 3.9% unemployment. He increased the minimum wage.

Bush II took the surplus and gave the rich a huge tax cut. Then, after 9-11 initiated the invasion and rebuilding of two nations. Both were financially destitute and practically unarmed nations.
The world looked in horror and alienated 1500 Million muslims.
He implemented Part D Medicare without funding it. He did not tax to support two wars.
He increased Spending by 90%, Debt by 112% and took a surplus to a 1400B Deficit.

Obama implemented an 800B Stimulus and payroll Tax Cut and added 30,000 soldiers to the Afghan war instead of withdrawing.

In 33 years we went from a 600B Budget to 3900B. A 917B Debt to 16,700B. We added an average of 99,000 net new jobs per month from Carter’s 218,000 per month.
There is plenty of mud to sling on each President.
The Democrats held the House for 40 years prior to 1994 and helped created reasonable budgets.
The Tea Party in the House ( David Koch funding) is correct on cutting government but off base on
refusal to pay our bills with tax increases on Wealth. We must support our government with adequate revenue and since top 10% own most of the wealth they must help by paying a Fair Tax.

This article is part of an ongoing investigation:
Presidential Pardons

Presidential Pardons: Shades of Mercy

White criminals seeking presidential pardons are nearly four times as likely to succeed as people of color, a ProPublica examination has found.

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