Obama’s Clemency Problem – And Ours

Earlier this week, President Obama broke his own remarkable clemency record, granting an unprecedented 231 commutations and pardons in a single day. Headlines and tweets broadcast the historic tally; on the White House website, a bar graph tracks Obama’s record to date, which has dramatically outpaced that of his predecessors. With a total of 1,176 recipients, the White House boasted, Obama has granted clemency “more than the last 11 presidents combined.”

The president certainly deserves credit for making clemency a priority before leaving office. His efforts are especially laudable in contrast to the lazy rhetoric of President-elect Donald Trump, who has cluelessly condemned clemency recipients as “bad dudes.” In reality, to use language Trump might understand, all successful applicants go through a process of extreme vetting: only a fraction of people in federal prison are eligible in the first place, and selections rely on a careful review of each candidate’s history and behavior behind bars. A record of violence, including as a juvenile, is disqualifying.

Those who make the cut are, as the White House put it this week, “individuals deserving of a second chance.” Many have been serving long mandatory minimum sentences for nonviolent drug offenses, crimes for which they have shown remorse. Applications list courses completed, prison jobs maintained, records untarnished by disciplinary write-ups. Last spring, Obama highlighted a handful of men and women who “have made the most of their second chances,” describing their ability to leave prison, get a job, and piece their lives back together as “extraordinary.”

With his legacy and the politics of crime in mind, it makes sense that Obama would be cautious with his commutations, while amplifying the success stories. Yet there’s something disingenuous in the now-familiar rhetoric peddled by the White House with every clemency announcement, which repeatedly tells us we are a “nation of second chances.” Even within the narrow scope of Obama’s clemency initiative — and putting aside his treatment of immigrants and whistleblowers — this is wishful thinking at best. As Obama himself has written in his congratulatory letters to clemency recipients, “thousands of individuals have applied for commutation, and only a fraction of these applications are approved.” Before the latest round of pardons and commutations, Obama had rejected nearly 14,000 clemency applications. On the Department of Justice website, which tracks the rejections, the staggering list of names includes Ferrell Scott, whose application was denied on November 29. Scott is serving life without parole for pot offenses — precisely the kind of draconian sentence clemency exists to address.

Obama’s clemency project was ostensibly born of the recognition that, as then-Attorney General Eric Holder put it in 2013, “too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason.” At the time, Holder promised the Obama administration was “fundamentally rethinking the notion of mandatory minimum sentences for drug-related crimes.” But when it comes to the president’s pardon power — the one place where Obama could directly address the problem —  there are few signs of a transformation.

Instead, the White House has promoted a story about exceptionalism: The president has proven exceptionally merciful and the clemency recipients are uniquely deserving — even extraordinary. If the former is true, it is only because we have set the bar so low. As for the latter, it is certainly no small thing to survive — even thrive — while serving some of the harshest prison sentences in the world. But praising such men and women as exceptional diminishes the vast human potential that exists behind bars. As one clemency recipient told me last month, recalling an exchange with the former White House pardon attorney, “I have a list of names of people I would like to see come home. But there are even more people who I’ve never met. To give a list of names would exclude too many people.”

On November 29, a coalition of activists, legal scholars, and attorneys published a letter urging Obama to take much bolder action, to commute the sentences of whole categories of people whose prison terms are plainly unjust. He could, for instance, prioritize the cases of people who should have received retroactive relief under the Fair Sentencing Act in 2010, which reduced (but did not abolish) the obscene sentencing disparities for crimes involving crack versus powder cocaine. “There is bipartisan agreement that pre-Fair Sentencing Act crack sentences are unjust and have disproportionately affected people of color,” the authors wrote, “but there is no mechanism for addressing that injustice outside of clemency.” Whether Obama will act on such ideas remains to be seen. But the letter exposed the fallacy of framing clemency as a “second chance” to be bestowed upon a small number of “deserving” individuals. If the underlying sentences were senseless and cruel to begin with — and if clemency is the only way to grant relief — why has the White House made it so hard for these same people to get out of prison?

This is just one of a nagging set of larger questions highlighted by Obama’s clemency initiative. In an era in which so many politicians now recognize the need to correct the excesses of mass incarceration, why should the burden fall on incarcerated people? How is it reasonable to require people in prison — the most disempowered individuals in society, living in state-imposed environments of extreme violence — not only to survive but to excel in order to win relief from a punishment the government itself has admitted was wrong? Should someone serving a draconian sentence under a racist sentencing scheme really have to work so hard to prove their worth when it was the state that robbed them of their humanity?

A Nation of Second Chances?

On the same day activists published their letter exhorting Obama to expand his clemency efforts, the American Civil Liberties Union released a report titled “False Hope: How Parole Systems Fail Youth Serving Extreme Sentences.” Documenting how states routinely deny release to those eligible for parole, the ACLU offers numerous profiles of men and women sent to grow up (and in many cases, to die) in prison, whose efforts to prove their value as adults have been repeatedly rebuffed. The stories are all too familiar. They show how poverty, neglect, trauma, and mental illness factor into the lives of young people arrested for violent crimes. They also show how harshly we continue to punish such youth, first with decades in prison, and then with repeated refusals to grant parole, no matter how much they change in the years that follow — or how much evidence shows that older people “age out” of crime. People of color are seen as even less amenable to rehabilitation. Today, despite the wide rejection of the “superpredator” myth, state parole boards show very little mercy to people serving sentences that grew out of such racist hysteria.

As with Obama’s clemency initiative, the problem is largely political: Nobody wants to be the person to free an individual who might go out and commit another crime, even if it has been decades since the original offense — and even if the sentence was disproportionate to begin with. What’s more, the ACLU notes, by focusing on the original crime, “parole board members may never know about the success stories: people convicted of serious crimes who, once released, have become successful community leaders supporting themselves and their families, who grew up and moved beyond the worst thing they ever did.”

One bright spot of Obama’s clemency initiative has been in these very kinds of success stories – publicized in the press and by the White House itself. But in the absence of a deeper rethinking of what we consider a second chance, such anecdotes are no match for generations of fear mongering that has entrenched fear of violent criminals into our very psyche, even at times when crime has hit historic lows.

Just a few days after the ACLU report on parole, the Washington Post unveiled a front-page, four-part investigative series called Second Chance City, which examined a D.C. law called the Youth Rehabilitation Act. Passed in 1985, the law aimed to give judges discretion in handling cases involving young defendants  — including by circumventing mandatory minimums — to allow deserving young people to avoid harsh punishment and, ultimately, expunge their record. The Post series raised alarm, finding dozens of cases where beneficiaries of the law had gone on to commit new, often violent offenses, and describing the crimes in dramatic detail. Exhibit A was a black man in his early 20s facing trial for rape, and whose record included eight previous arrests and stints in state custody dating back to his teens. “There’s simply no indication here that Mr. Pitt is amenable to rehabilitation,” a judge told the man’s defense attorney at one point, and the Post would seem to agree.

The series included two large mugshots of the young man in question. Yet absent from the series were figures to contextualize the cases highlighted by the Post, making it impossible to measure the law’s failures against its successes. Indeed, while the YRA may well be flawed in its implementation, the man profiled by the Post could just as easily be considered a poster child for the utter inability of the criminal justice system to address pervasive problems such as mental illness, poverty, and neglect — the very factors so common among youth who cycle in and out of prison. Although the Post noted that the man “began psychiatric treatment at age 13,” the portrait that emerges is of a predator coddled by the courts, free to victimize his community because of an overly lenient justice system.

Most counterproductive was the framing of the series, placed squarely as a counterpoint to efforts at prison reform on Capitol Hill. “At a time when the Obama administration and Congress are working to ease ‘mandatory minimum’ sentencing guidelines for non-violent offenses, in part because of concerns that such laws have unjustly imprisoned large numbers of African-Americans,” the authors write, “D.C. law enforcement officials are increasingly concerned about the number of repeat violent offenders on the streets.”

The media should certainly scrutinize attempts at reform, pointing out where they fail. But the Post series was a reminder of how quickly we revert back to old narratives about crime, to convince ourselves that more imprisonment will keep us safe. With the real fights over prison reform happening at the state and local level — over things like the Youth Act — any efforts by the president were always going to be limited. But if the pendulum is to swing back toward a more punitive era, as many fear it will under Trump, Obama must do as much as he can now to preserve the legacy he has carved out.

But beyond Obama — and if we are to make a dent in mass incarceration — Americans must also begin to think much bigger than his administration ever did. We should refuse to let the same government that gave us mandatory minimums define what counts as a “second chance.” We must stop letting our leaders — whether the president or a parole board — divest their responsibility to remedy draconian punishments by placing the burden on people who never should have received them in the first place. Ending mass incarceration will require mercy, but fundamentally it is about justice. And the state has not even begun to account for its own mistakes.

Top photo: Barack Obama, then a U.S. senator from Illinois, looks out the window of Nelson Mandela’s jail cell, August 20, 2006, on Robben Island, South Africa.