A Presidential Molehill - Mountains Need Not Apply


Posted on : 12/20/2016 04:47:00 PM | By : Dann | In : , ,

So my social media is being infested with stories about President Obama granting a large number of pardons and clemencies yesterday.  It made me a little curious, so I did a little digging.

First, it is useful to know the difference.  A "pardon" essentially sets aside all of the facts of the case as well as the verdict and punishment.  It is a complete forgiveness that erases the act from the criminal record.  A pardoned person recovers all of their rights and is no longer considered convicted of any crime.

Clemency involves ending or reducing the sentence of a convicted individual.  Their crime remains a matter of public record.  However, their punishment, typically confinement, is reduced or terminated.  This is frequently granted to individuals where the President (or state Governor) feels that the sentence imposed by the court far exceeded what the conditions of the crime merited.

Mr. Obama apparently did set a record for the number of combined pardons/clemencies granted by a President in a single day.  But what is the larger context?  (Special note, the statistics on the site were last updated in October and therefore do not reflect actions since then.)

Mr. Obama has been quite frugal with respect to granting pardons.  Prior to yesterday's actions, he actually had granted the fewest pardons of any President dating back to the 19th century.  Now he is just at the low end of the range.  He has granted a little over 100 full pardons.  As a comparison, Richard Nixon granted 863 full pardons and Dwight Eisenhower granted 1110.

Mr. Obama has been far more generous with granting clemency.  Given how much our legislatures have taken to creating statutory sentencing minimum, it is no surprise to learn that we are giving lengthy prison sentences to people who either cannot afford a good attorney or who simply are not able to assist in other prosecutions.  Essentially, these people cannot get the sort of "deal" that is routinely offered to other defendants.  Also, Mr. Obama has correctly questioned the results of a system that offers disparate punishments for the possession of powdered cocaine and the possession of crack cocaine.  The drug is the same in both cases.

And so he has been far more generous in granting clemency.  Properly so.

There is a bit of hypocrisy here as one might expect.  One of the sentencing modifiers created by the Congress is the presence of a weapon; specifically some sort of gun.  The intent is to give prosecutors the ability to put extra bad people in prison for extra long periods of time based on factors that have little to do with the actual crime that was committed.

For example, the DEA busts into an apartment and arrests everyone on drug charges due to the boxes of criminalized drugs stacked up along the walls.  The find a gun and are able to add more prison time onto the sentence(s).  People who intend to do bad things being kept in prison for a longer period of time is probably better for society.

Unfortunately, such laws get twisted into serving injustice.  For example, someone hides a gun in their girlfriend's apartment.  She smokes some weed from time to time and gets busted.  The cops find the gun and multiply the girlfriend's sentence.  The result is certainly more expensive for society but in a non-trivial number of cases it probably doesn't make society better as a result.

So where is the hypocrisy?  Most of the folks that are appalled at Mr. Obama's use of his clemency powers for cases involving gun possession would probably be apoplectic at the prospect of someone in possession of a couple of ducks/fish/etc. over the legal limit being given an extra long sentence due to the presence of a gun.  Yet that can and does happen just as well.

Correcting prosecutorial indiscretion is an appropriate use of Presidential powers.

In any case, this really isn't that big of a deal.  Mr. Obama has granted far fewer pardons that most Presidents.  When you take it down to a per-year and per-capita consideration, he has been downright stingy in his use of that Presidential prerogative.  He has granted clemency at a much higher rate.  Combining pardons with clemency, he isn't really doing anything that differs from other Presidents.