Clemency for Drug Offenders Is More Presidential Lawlessness Disguised as Pardon Power

Attorney General Eric Holder announced today that dozens of lawyers will be reassigned to the Justice Department’s pardon office in anticipation of a surge of applications from drug offenders for reductions in their sentences -- applications the Obama administration has signaled it would look upon favorably. This exercise is another transparent usurpation of legislative power by the president. The pardon power is just the camouflage for it.

The pardon power exists so that the president can act in individual cases to correct excesses and injustices. It is not supposed to be a vehicle by which presidents rewrite congressional statutes that they disagree with philosophically (just as “prosecutorial discretion,” another doctrine the Obama administration has abused, is not supposed to be a vehicle by which the president substitutes his policies for duly enacted federal law).

The Obama administration is philosophically opposed to mandatory minimums in the federal penal law, especially in the narcotics area. The Justice Department is filled with racialist ideologues and pro-criminal rights ideologues (they tend to be the same people) who have long contended that the drug laws are racist. This is another of those absurd arguments that finds racism based on unintended consequences rather than racist designs.

The mandatory minimums for crack (“cocaine base”) crimes are more severe than for powder cocaine (which was called “cocaine hydrochloride” back when I was a federal prosecutor). Many crack distributors are black and Hispanic, while many powder cocaine distributors are white -- although there are plenty of whites in the former category and minority dealers in the latter. Thus, it is contended, the mandatory minimums are racist in effect.

It has been argued for decades that this disparity is unjust. As a matter of racism, this claim is frivolous. As a matter of logic, it is not: crack is rightly punished more severely because it is more addictive and ruinous. For a long time, though, crack was punished at a 100:1 ratio to powder coke (e.g., the 10-year mandatory minimum kicked in at 5,000 grams, or 5 kilos, of powder coke but only 50 grams of crack). It is perfectly constitutional for Congress to do this, but it is not sensible -- crack may be worse than powder coke, but not a hundred times worse.

The way our system deals with bad laws is to change them by legislative repeal or amendment, not for the president to decree new laws unilaterally. And, in fact, the drug laws have been changed: Crack is still treated more harshly, but the crack floor for the 10-year minimum was raised (by a factor of more than 5) from 50 to 280 grams. Similarly, for the 5-year mandatory minimum, the ratio is no longer 100:1 -- while it is still triggered by 500 grams of powder cocaine, it now takes 28 grams of crack, not 5 grams.

To many people, this is still too wide a disparity, but note that the difference is based on the severe addictive tendencies and street-level violence associated with crack, not race. And in any event, if the law is to be changed, our system requires that it be changed by passing laws in Congress.

President Obama is using the pardon power to rewrite the statute unilaterally. The time drug offenders spend in jail will be based on his subjective notion of fairness, not the policy embodied in our drug statutes. This is not faithful execution of the law, which is the president’s core constitutional duty. It is the execution of Obama’s whims.

Holder’s announced reasons for this policy are bogus. Because the federal and state governments have concurrent jurisdiction over narcotics offenses, the feds focus on drug importation and distribution felonies, while the states cover mere possession and use. So it simply isn’t true that thousands of people are languishing in federal prison simply for drug possession or addiction.

And as far as violence goes, federal statutes and the federal sentencing guidelines enhance prison terms based on violence and, in particular, the use of firearms in connection with drug crimes. That is, nonviolence has already been taken into account when judges sentence drug offenders.

Finally, Attorney General Holder and the Obama administration may be the worst imaginable officials to carry out a commutation program based on the president’s pardon power. When he served as deputy attorney general under Attorney General Janet Reno, Holder was infamously at the center of the Clinton administration’s pardon scandal. He was a key figure in the 1999 pardons of FALN terrorists; and the pardon process he engineered for Clinton resulted in the release not only of Marc Rich but of two convicted Weather Underground terrorists. So obviously, his idea of “nonviolent” probably does not conform to what most Americans think of when they hear that term.

Moreover, we should be under no illusion: this is not an exercise in mitigating injustice in individual cases. This is an abuse of political power to rewrite the federal drug laws because, as a matter of ideology, Obama does not agree with stern sentences for drug offenders.