2,785 Petitioners for Clemency Need All of the Mercy Obama Can Give

The clemency power is not an invention of an activist president but a guarantee of Article II of the United States Constitution.
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Shortly after high school, Michael Keating fell in with a bad crowd in his rural hometown in Missouri, and began experimenting with meth. By the age of 20, he was hooked and using the drug on a daily basis. He met a man who said that if Michael allowed him to use the woods behind his house to produce drugs, he would give the young addict some of what he made.

Soon thereafter, police officers received information that meth was being made at Michael's home. They searched his property and found a bucket of waste water in the backyard. Although the waste water contained less than a gram of methamphetamine, pursuant to the Eastern District of Missouri's practice (which has been rejected by the majority of federal circuit courts and the U.S. Sentencing Commission) Michael, the sole defendant in the case, was charged as though the entire weight of the water in the bucket -- more than 2,700 grams -- was a marketable drug. He was sentenced to serve more than 11 years in federal prison.

Late last month, the Department of Justice announced a laudable initiative to seek out nonviolent drug offenders with long prison sentences whom it will consider for clemency. The initiative is open to federal prisoners who meet six criteria, including that they have served at least ten years of their sentence and likely would have received a substantially lower sentence if convicted of the same offense today. The goal, according to President Obama, is to help "restor[e] fundamental ideals of justice and fairness" to our penal system by releasing those who "would have already served their time and paid their debt to society" had they been sentenced under current law.

This is a tremendous step forward, but it won't help Michael Keating. He has only served seven and a half years in prison, not ten, as the initiative requires. And the law under which he was sentenced hasn't changed -- in Missouri, possession of the un-ingestible by-product of drug production is still punished just as harshly as possession of the same amount of marketable drugs. Michael's case is emblematic of our need to go even further to right the wrongs of failed sentencing policies.

Still, some who have commented on the initiative seem to view it as too much justice. One group of critics fears the "early" release of convicted felons into our communities. But, as Michael's story demonstrates, we need to take a hard look at individual cases before we assume that those with past convictions pose a present danger.

At his sentencing allocution, Michael promised the judge that "[n]o matter what you decide...I'll try to do my best to get the full benefit of my time [in prison] so that I can come home healthier and more educated so I can live a better quality of life and appreciate the things I once took for granted." Before entering prison, he successfully completed an in-patient rehabilitation program and kicked his drug habit. And, since entering prison, he has had a perfect disciplinary record, completing thousands of hours of apprenticeship and vocational training. Indeed, Michael's record inside is so good that the federal prison in which he is incarcerated frequently lets him out: Michael serves as a town driver for the facility, running errands outside the prison in an official vehicle. He could try to escape, but he doesn't. That's what it means to be rehabilitated. Michael has learned valuable skills as an automotive electrician while behind bars; he, and others like him, should be sent home to put their talents to work for their communities.

Another response to Obama's initiative, in this case from some members of Congress, has been to suggest that the President is making an improper end-run around the legislature, which should do the work of changing the mandatory minimum laws. But while bills are pending in both houses that would move sentencing policy in the right direction, the President should not wait for the legislature to act in cases of manifest injustice. The clemency power is not an invention of an activist president but a guarantee of Article II of the United States Constitution. Thus far, President Obama has made only begrudging use of it, granting fewer pardons and commutations than any of his predecessors since at least President McKinley, who during two years in office granted five times as many pardons as Obama has as of today. But our Founding Fathers gave the president this power because they wisely recognized that "there may be many instances where, though a man offends against the letter of the law... peculiar circumstances in his case may entitle him to mercy."

Moreover, while President Obama is right to search out new candidates for sentence mitigation, he shouldn't neglect those meritorious individuals whose cases are already before him. Michael Keating's application has been pending for over two years; it is one of the 2,785 sentence commutation petitions on which the Pardon Attorney has not yet acted. In addition to seeking out new submissions, the President should take a close look at those he has in hand. On the path to saner sentencing policy, we will need all of the mercy that he can give.

Megan Quattlebaum is co-counsel for Michael Keating with Blair Brown of Zuckerman Spaeder LLP.

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