* Ms. Love now represents applicants for executive clemency. Her client Clarence Aaron was one of those commuted by President Obama on December 19.
On December 19, President Obama commuted the prison sentences of eight people convicted of trafficking in crack cocaine and sentenced to lengthy prison terms. Each person had spent at least 15 years behind bars, and all but two were serving a mandatory life term. The President was generally commended for his acts of mercy, the only reservation being that he had not done more to provide relief to thousands of similarly situated individuals still imprisoned under laws he himself characterized as “unjust.”
One of those whose sentence the President commuted was Clarence Aaron, a college student with no prior record who was sentenced in 1993 to three life terms based on his limited role in two drug transactions for which he was paid $1500. Another was Stephanie George, described by the sentencing judge as the “bag holder and money holder” for her crack-dealing boyfriend, whose life sentence was based on two prior convictions for selling a total of $160 worth of crack.
Clarence Aaron is now on his way home, as are Stephanie George and the other members of the December 19 Eight, most of whom thought they would never see home again. So it is time to consider what happens now for the hundreds of similarly situated individuals still behind bars.
The President himself acknowledged, in a statement accompanying the grants, that while he had taken “an important step toward restoring fundamental ideals of justice and fairness,” that step “must not be the last.” He urged Congress to act on “reform measures already working their way through Congress” to provide relief from “a disparity in the law that is now recognized as unjust.” The specific “reform measure” the President was referring to is the Smarter Sentencing Act, which would make the 2010 Fair Sentencing Act (FSA) fully retroactive. The impression left by his statement was that passage of this bill, along with policy changes announced by the Attorney General in August 2013, would be sufficient to restore fairness to the legal system, and that the job of doing justice had now passed to Congress.
Former Attorney General Edwin Meese III is frequently credited with helping to pack the federal bench with judges that adhere to strict construction or orignalism, a method of trying to interpret today’s legal controversies through the lens of the Constitution’s framers.
Meese a member of the Federalist Society’s Board of Directors, has also been instrumental in the shutdown of the federal government over the 2010 landmark health care law, the Affordable Care Act. In an extensive piece for The New York Times, Sheryl Gay Stolberg and Mike Mcintire note that he helped launch a “loose-knit coalition of conservative activists” early in Obama’s second term to craft a new push to “repeal” the Affordable Care Act.
“It articulated a take-no-prisoners legislative strategy that has long percolated in conservative circles: that Republicans could derail the health care overhaul if conservative lawmakers were willing to push fellow Republicans – including their cautious leaders – into cutting off financing for the entire federal government.”
The Meese coalition created a defunding “tool kit” with talking points saying it “simply is calling to fund the entire government except for the Affordable Care Act/Obamacare.”
Meese, as the newspaper notes, also helped launch a group, the Conservative Action Project (CAP) to peddle the defunding plan. Its “welcome friends!” message says President Obama “is trying to remake our government and economy into the image of today’s European social welfare state.”
Groups like the Heritage Foundation, where Meese is the Ronald Reagan Chair in Public Policy, and the billionaire Koch brothers have also been involved in pushing the defunding campaign, which has led to the shutdown.
As noted here, scholars and prominent commentators have blasted the strategy as undermining and endangering democratic processes. The Affordable Care Act became law after extensive debate in Congress, survived a constitutional challenge by lawmakers, and the House’s outlandish number of votes to repeal the law have been for naught. And yes, as The Dish’s Andrew Sullivan noted, the American electorate spoke clearly in 2012 when Obama won a second term in strong fashion.
It was an encouraging development for the rule of law when President Obama decided to ask Congress for legislative authorization to take military action in Syria. When Obama took office in 2009, it was reasonable to expect that his administration would move away from the Bush-Cheney-Yoo unitary executive model, which was essentially an argument for unchecked presidential power. However, while the Obama administration has certainly not embraced the outlandish unitary executive theory, it has, at times, found ways to skirt limits on presidential power. The most prominent examples are probably the targeted killing, without judicial hearing, of U.S. citizens believed to be terrorist leaders and the administration’s decision to order military action in Libya in 2011. As I have argued elsewhere, in each case, executive branch lawyers in the Obama administration found ways to justify unilateral presidential action unchecked by the other branches of government.
Obama’s decision to involve Congress in the debate over the use of military force in Syria suggests a meaningful acknowledgment that presidential power is accountable to checks and balances. As I have written for the Los Angeles Times, Obama’s decision to seek congressional approval was required by the Constitution since the United States has not been attacked by Syria. However, it was far from clear that Obama would turn to Congress. Advocates of presidential power point out that past practice -- including Obama’s own action in Libya -- supports the conclusion that presidents can more broadly use military force when it is in the national interest, and not only when the U.S. is attacked. The fact that Obama did not act on his own is a positive sign and may help prevent future presidents from unilaterally using military force (picture a hypothetical President Ted Cruz deciding the national interest justified an attack against Canada).
There is reason to contain one’s optimism, though, when it comes to setting new limits on the use of presidential power. Obama has stated that he reserves the right to use military force even if Congress declines to pass authorizing legislation. That is disconcerting, and simply does not make a great deal of sense. What is the point of Congress making a decision if it is merely an advisory opinion? If Congress decides not to authorize the use of military force in Libya, Obama should respect that decision and should not act on his own. Unilateral action under these circumstances would be a dangerous decision for the Constitution, and could also be a bad political move. Some Republican members of Congress have made clear that they are eager to find a reason, any reason, to impeach President Obama and remove him from office. To date, there is no legitimate reason to support such an idea. However, if Obama ordered military action in defiance of Congress, that could provide his political opponents with a legitimate argument for impeachment.
Yesterday, after months of anticipation, the Department of Justice announced its response to marijuana legalization ballot measures passed by voters in Washington and Colorado last November. The DOJ said it does not plan to sue Washington and Colorado to block the new laws. The agency also released new prosecutorial guidance that indicates it may limit the enforcement of federal drug laws in states that have legalized marijuana for recreational or medical purposes.
If you felt a sense of déjà vu reading that paragraph, there’s a good reason.
In 2009, The New York Times ran a front-page article about a different DOJ memo under the headline U.S. Won’t Prosecute in States That Allow Medical Marijuana. The 2009 Times article reported that “[p]eople who use marijuana for medical purposes and those who distribute it to them should not face federal prosecution, provided they act according to state law, the Justice Department said Monday in a directive with far-reaching political and legal implications.”
By early 2012, however, Rolling Stone ran a story titled Obama’s War on Potin which writer Tim Dickinson forlornly told the story of how “over the past year, the Obama administration ha[d] quietly unleashed a multiagency crackdown on medical cannabis that goes far beyond anything undertaken by George W. Bush.”
Will the DOJ’s new marijuana policy live up to the hype? Or, will we see a replay of what happened following the 2009 memo? Policy advocates seem to be split so far, with some calling it a historic turning point for U.S. drug policy and others taking a wait-and-see approach.
Only time will provide a definitive answer to this question. But comparing yesterday’s memo with 2009’s can help us understand what to watch for in the months to come. A few points are worth particular attention.
The new prosecutorial guidelines are aimed at one of the most disgraceful and frequently criticized features of drug war-era mandatory minimum sentencing: tying punishments to drug type and quantity in low-level cases. The practice began with a hastily drafted law passed by Congress in 1984, at the height of drug war fervor. The measure sought to increase and standardize punishments in federal drug cases through mandatory minimum penalties. Legislators claimed that the law would create a two-tiered penalty structure, subjecting so-called “serious” drug traffickers to five-year minimum sentences and “major” traffickers to ten-year prison terms. (These mandatory penalties can increase to 20-years or even life for defendants with prior felony drug convictions.)
The problem is that while Congress referred to “serious” and “major” traffickers in debating the mandatory minimum provisions, the five- and ten-year penalties are “triggered not by role but by drug type and quantity instead.” And, it turns out; drug type and quantity are a poor measure of a drug offender’s culpability.
Take drug couriers for example. Drug couriers are considered expendable by drug organizations. Most are addicts or otherwise down-on-their luck. In San Diego, where I live, drug organization recruiters seek out homeless people for this job just a few blocks from the heart of downtown. They might be paid $1,500 to transport hundreds of thousands of dollars’ worth of drugs across the border.