Osler: Obama’s Mercy Dearth

If Barack Obama can reduce the crack-powder disparity, why hasn’t he issued a single pardon? 

Mark Osler, a law professor, former federal prosecutor and Friends of Justice board member, poses this question in an op-ed published Sunday in the Dallas Morning News.  I hope I’m wrong, but I think I know the answer.  Like most Democrats, our president fears that a show of mercy will make him look weak.  So, like Bill Clinton before him, Obama maintains the pious fiction that the criminal justice system never errs or overreaches.  Hopefully, the next two years will see more action on the pardon front.

 Mark Osler: Obama’s Mercy Dearth

12:00 AM CDT on Sunday, November 7, 2010 

Former federal prosecutor Mark Osler teaches at the University of St. Thomas School of Law in Minnesota. He previously taught law at Baylor University for 10 years

On Oct. 28, the White House announced that President Barack Obama had earlier in the month denied 71 pardon requests and 605 petitions for commutation of sentence, while granting none. Nearly two years into his term, Obama has issued exactly zero pardons and no commutations, a sorry record that distinguishes him from nearly all of his predecessors.

This failure to act undermines not only an important constitutional mechanism, but the values that underlay it. The pardon power was not inserted into the Constitution by accident – that provision was promoted amongst the framers of the Constitution by Alexander Hamilton, who described it in the Federalist Papers as necessary to mitigate harshness in criminal law. The others agreed.

Is the wisdom of the framers now irrelevant? Of course not. Overly harsh laws have recently been the topic of debate and reform. Earlier this year, the draconian 100-1 ratio in federal sentencing laws between powder cocaine and crack (under which trafficking five grams of crack resulted in the same sentence as 500 grams of powder) was revised to a more reasonable 18-1 ratio. In making this change, the same branch of government that created the overly harsh law recognized that the punishment did not fit the crime.

What the crack/powder reforms did not do, though, is make that change retroactive, and it is very likely that many of the petitions denied by Obama were from crack defendants sentenced under what Congress, the courts and Attorney General Eric Holder have all labeled an overly harsh and even irrational law. (We don’t know how many of those denied fall under this category, as the administration refuses to identify the people whose petitions were rejected.)

We should expect more from a constitutional law professor who becomes president. The Constitution grants the president relatively few tools of power, and each is important. If we are attacked, he is the commander in chief of warships and armies. In international affairs, he is charged with promoting our interests through treaties. When a law is overly harsh, he is given the power of the pardon. A president who lets his tools lay untouched in the box at a time when they are needed is simply not practicing the craft of leadership.

Some have described the reverence Americans have for the Constitution as a “civil religion,” and I’m not sure that is a bad thing. Religions instill values, and the Constitution certainly does that – it promotes and describes the values of self-restraint, of consensus and of individual liberty. That is not a bad batch of virtues. In the pardon power, though, the Constitution expects expression of an additional virtue: mercy.

Mercy to those unfairly treated is an idea deeply engrained in the American consciousness and spirit, like the concepts of liberty and restraint. The framers did not lightly place the unchecked power of the pardon in the president’s hands, because that power can easily be abused (as it sometimes has been). Still, they granted the executive that power with the expectation that from time to time rough edges in criminal law sometimes would have to be shaved off.

The pardon power was proposed by Alexander Hamilton, and he described it directly as mercy in Federalist # 74: “Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. … On these accounts, one man appears to be a more eligible dispenser of the mercy of government, than a body of men.”

There is reason to hope that Obama will finally act on this constitutional duty now that the elections are over. Second-term presidents and those on the far side of midterm elections generally are less stingy with pardons, especially around the holidays.

So perhaps at Thanksgiving, someone other than a turkey will receive a pardon, or at Christmas, some sentences will be commuted. If so, that latent value of the Constitution, mercy, will again be glimpsed.

Former federal prosecutor Mark Osler teaches at the University of St. Thomas School of Law in Minnesota . He previously taught law at Baylor University for 10 years. His e-mail address is Mark.Osler@Stthomas.edu.