Osler: Pardon people, not turkeys

Ramsey Muniz is a seventy year-old man who walks painfully with the assistance of a cane.   He once ran for Governor of Texas; now he is housed in a federal prison built for gang members.  Ramsey has served almost twenty years for his alleged role in an imaginary drug deal that was produced and directed by the federal government.  Even if you think he is guilty, compassion and common sense dictate a humanitarian release.  But Mr. Muniz and thousands of other applicants for clemency and commutation are routinely rebuffed by the office of the president.  As law professor Mark Osler observes, Barack Obama has been far less willing to utilize his pardon pen than was the tough-on-crime Ronald Reagan.  Mr. President, how about some change we can believe in.

Pardon People, Not Turkeys

By Mark Osler

Star Tribune

Under President Obama, the odds of clemency or commutation are shamefully slim.

If President Obama follows tradition and pardons a turkey this week, it will be a ceremony rich in irony. While the president has been a regular dispenser of clemency to fowl, he has not been so generous to humans. It is time for that disjuncture to end.

As ProPublica journalist Dafna Linzer pointed out earlier this month, President Obama has granted clemency more rarely than any modern president. This is particularly striking when considering commutations, or the power to lessen a sentence while maintaining the underlying conviction (a pardon wipes out the conviction). According to Linzer’s calculations, “under Reagan and Clinton, applicants for commutations had a 1 in 100 chance of success. Under George W. Bush, that fell to a little less than 1 in 1,000. Under Obama, an applicant’s chance is slightly less than 1 in 5,000.”

The founding fathers did not intend for the pardon power to fall into such disuse. As the framers made clear, this vestigial power of kings is rooted in policy concerns that ring very true today. Alexander Hamilton, in Federalist 74, argued that “the criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.”

Our federal system of criminal law has, of late, been “too sanguinary and cruel.” For example, thousands of federal prisoners still languish under long sentences doled out under the now-amended 100-to-1 ratio between powder and crack cocaine that was built into the federal statutes and sentencing guidelines. That ratio has been actively rejected by all three branches of government, but the only avenue to relief for those prisoners is commutation. President Obama should look to the approach President Ford employed for draft evaders in 1974: A mass commutation pursuant to a process created to provide careful review of each case.