On January 30, Deputy Attorney General James Cole made a remarkable speech to the New York State Bar Association, and repeated his message last week in a meeting with advocacy groups. The bombshell was this: The Department of Justice is going to recruit and give heightened consideration to clemency petitioners serving long terms for narcotics in federal prisons. For the first time since Bill Clinton famously wandered through the press cabin in Air Force One asking, "You got anybody you wanna pardon?", a president is actively seeking candidates to have their sentences shortened. Unlike Clinton, Obama is asking the question seriously, well before his term ends, and with the intent to make a principled statement about criminal law.
This is an important moment in the long arc between the creation of the federal over-incarceration problem in the mid-1980s and that point in the future when a better balance is achieved. The tough mandatory sentences (imposed through federal statutes and sentencing guidelines) that played such a large role in creating over-incarceration enjoyed wide and bi-partisan support. Importantly, the idea that they must be undone now also enjoys bi-partisan support, as does the idea of seeking new approaches. Neither conservatives nor progressives have an interest in the continuation of an inefficient federal program that usurps state powers, limits individual freedoms, is maintained by a bloated bureaucracy, and disproportionately harms African-Americans and the poor.
In Congress, that sense of bi-partisanship was most clearly seen on the same day that Cole gave his speech. The Senate Judiciary Committee, by a 13 to five vote, passed to the floor the Smarter Sentencing Act, which includes three significant measures which would partially undo the infrastructure of harsh narcotics laws. One of those measures, allowing for some inmates serving long terms for crack cocaine offenses to be resentenced, would affect some of the pool of people who would likely petition for (and receive) a commutation under the plan Cole announced. Despite this duplicity, though, President Obama is pursuing both tracks at once. Perhaps as his year of action unfolds, he has chosen to apply the "all of the above" approach not only to energy policy, but to the task of correcting over-incarceration. He is right to do so, because any legislation that survives a mark-up in the House is unlikely to address all, or even most, of the problematic sentences.
It will be difficult work to undo the tangle of bad incentives, disparity-creating sentencing enhancements, and simple lack of attention that combined to create the problem of over-incarceration. Making it harder is that there is no consensus on a better way to address the terrible realities of narcotics use and addiction, which was once again in the news with the heroin overdose of actor Phillip Seymour Hoffman. There is consensus, though, on the stark and discouraging fact that the billions we spent on mass incarceration did not matter much in addressing these very real problems. It is crucial that as we step away from one failed solution we take care to robustly and intentionally seek out another.
Rarely has the long arc of history bending towards justice been as apparent as what we see reflected in Cole's comments and the actions of the Senate Judiciary Committee. At about the time the federal sentencing guidelines were unveiled, I was a student of the late Yale Law School Professor Dan Freed, who had played a role in creating those guidelines and then worked to undo the wrongs they created. In 1992, Professor Freed wrote, "History teaches that statutorily imposed mandatory sentences are unjust and often nullified by juries, judges and prosecutors." Professor Freed would be pleased that this lesson of history is finally being understood by those with the power to heal deep wounds.