By Nkechi Taifa, Senior Policy Analyst, Open Society Foundations. [American Constitution Society for Law and Policy (ACS) and the Open Society Foundations will host a forum with experts on the President’s Constitutional Pardon Power on May 10 in 2237 Rayburn House Office Building.]
In 1974, Gerald Ford used his presidential pardon power to create an executive clemency board to oversee the petitions of 21,000 people convicted of draft-related offenses during the Vietnam War. Within a year, President Ford granted 90 percent of the petitions. The review process was a median strategy -- many desired outright amnesty for the lawbreakers while others favored imprisonment.
On balance, the approach by Ford establishing a pardon board allowed for individualized review of each clemency application, with options including approval, community service, or denial. A systematic process of review for this discrete class of cases helped mend a nation divided by conflicting opinions as to the legitimacy of the war and the reasonableness of sanctions for those who morally resisted it.
Fast forward to today: Currently, there is an identifiable class of people serving egregiously lengthy sentences for crack cocaine offenses. All three branches of the U.S. government agree that these sentences are unjust, inconsistent, unfair and biased. Ironically, these people are the very same group whose harsh and discriminatory sentences inspired passage of the 2010 Fair Sentencing Act (FSA), which reduced the 100:1 powder to crack ratio to 18:1. The FSA, however, applies only to new cases occurring after its passage, leaving in place the flawed sentences of those who were already serving time under the old discredited sentencing scheme.
There is now an opportunity to seriously consider the pragmatic precedent established under the Ford administration and create an executive clemency board to review and provide relief, where appropriate, to this remaining class of pre-Fair Sentencing Act crack cases.
The Ford approach would not entail an elaborate or burdensome process and would not be a “get out of jail free card." The FSA addresses this issue by having a formula for individualized sentencing calculations based on its current statutory 18:1 ratio. Indeed, an effective process is already underway systematically reviewing sentencing adjustments pursuant to the FSA’s retroactive guideline amendment, under parameters resulting in gradual releases over the course of several decades. If such an executive clemency board were impaneled and proposed penalty adjustments pursuant to the current FSA sentencing structure, the president could approve, modify, or deny relief. The president would, of course, be free to use his constitutional pardon power unrestricted by the 18:1 ratio should he so choose.
A presidential clemency board for pre-FSA cases created by executive order could be the expeditious answer eliminating disparate sentencing treatment for the same crime between current prisoners and those who are newly sentenced. And establishment outside of the Office of the Pardon Attorney and the Department of Justice could shield the review process from the scandals of past administrations and current allegations of discriminatory treatment unveiled by the investigative journalism website Pro Publica. Finally, a process to swiftly address pre-FSA crack cases would boost confidence and promote integrity in a criminal justice system fraught with public criticism.
As a legitimate exercise of the president’s constitutional power, creating an executive clemency board to address these cases would be a laudable way to correct the injustice of egregiously severe, racially discriminatory, and fiscally unsound sentences. The creation of a transparent process by which to review and remedy these discredited sentences is an important public policy objective, and the creation of an executive clemency board for pre-FSA cases is a promising option for consideration.
This issue and others will be addressed as part of a May 10 symposium, “Reimagining the Constitutional Pardon Power: Does the President Have a Role in Making Drug Sentences Fairer?,” hosted by the ACS and the Open Society Foundations. This forum will feature a panel of experts on the clemency power, including Margaret Colgate Love, former U.S. Pardon Attorney and current clemency specialist; Professor Mark Osler, who recently highlighted the concept of an executive clemency board for pre-FSA crack cases; Dafna Linzer, Senior Reporter, ProPublica; ACLU Senior Counsel Jesselyn McCurdy who also chairs the Justice Roundtable’s Commutations Committee; and American University Professor Jeffrey Crouch who has written extensively on the presidential pardon power. Cedric Parker, who testified before a Senate Judiciary subcommittee in support of his imprisoned sister, Eugenia Jennings, will provide remarks about her recent commutation. Former Maryland Governor Robert Ehrlich, who granted clemency to over 200 people, will deliver the opening keynote address, and the event will conclude with words from former White House counsel Gregory Craig, who advocated for pardon reform while part of the Obama administration.