Osler's Razor

As you might imagine, I am still working through in my mind what has happened and what is yet to come with federal clemency. The next year will be crucial to resolving whether this principled tool of mercy will be revived.

 While I was very glad to see them, I was bothered by two things that the White House said after the set of grants earlier this month.

First, they sent out a press release announcing that this president has granted more commutations than his immediate predecessors. It was misleading, sure-- this president also has many more petitions before him, so the denominator of the equation (about 9,000) dwarfed the numerator (95 grants of commutation)-- but it also felt like a premature declaration of victory. By claiming success without emphasizing the hard road ahead, it was the moral equivalent of George Bush standing proudly in front of the "Mission Accomplished" banner well before a resolution of the Iraq conflict.

Second, the White House Counsel said this:

“The theory is not that this by itself is going to make a dent in the prison population — this is part of an overall approach,” W. Neil Eggleston, the White House counsel, said in an interview. “He thinks it fits into the broader effort of criminal justice reform. What it does show is, on a very individual basis, the way some sentences in the past have been excessive.”

At one level, Eggleston is exactly right: legislative reform and clemency are both important. Of course Congress should deliver to the President a clean and comprehensive bill that both changes the current law and grants relief to those serving sentences under laws that have been changed.  It is a good thing that the President has been a strong supporter of those changes through reform of the statutes. Those who think the current laws are too harsh, like me, applaud both the movement towards legislative reform and the recent grants of clemency and the promise of more.

However, only one of those things is really up to the President.

The core truth ignored in saying that commutations are "part of an overall approach" is that the Pardon Power is uniquely within the President's ability-- and he alone is accountable for it. The legislation that is the other part of the approach is moribund at the moment, and in the hands of a Congress that somehow is both inactive and unpredictable. That will be Congress's fault if it fails, and the President's victory if it passes-- a nifty deal for the administration. There is no political risk. In contrast, clemency offers a risk if he uses it, as he well knows, especially since he has waited until the last year rather than spreading that risk out over time.

The Pardon Power is a crucial Presidential power. Even setting aside the equities associated with mass incarceration, the fact is that the President has an obligation to save that power from abuse (Clinton) and disuse (the Bushes). He has the imperative to reclaim it as a tool of public morality, and in promoting a particular set of values: balance and mercy.  Clemency shouldn't merely be part of an "overall approach," secondary to legislation, because this tool is fit to the President's hand alone. His true intent, and clear virtue, will be revealed in how he uses it.

It could be that he is holding off on using clemency more aggressively in hopes that a reform bill will pass. I suppose it could be that some in Congress will be swayed against a bill if the President uses the Pardon Power, because it would seem to be furthering his agenda. That is some twisted logic given that the President has already made sentencing reform a clear part of his agenda in several speeches and statements, but the logic of Congress has been pretty twisted lately. More likely is that Ted Cruz, a staunch opponent of reform, will win in Iowa and his fellow Republicans will run away from the issue in deference to him.

The risk the President takes by relying primarily on a Congress that rarely functions rationally is that he could end up with next to nothing to show for his good intentions. For him, it would be a minor blow to his legacy. To those doing life sentences for low-level crimes, like Ronald Blount, the cost would be much higher.

Using clemency bears a risk. Saying you will wait for a bill does not. However, legacies are not measured by risk-averseness, but by bold moves toward a discernible good.