At the White House, the public relations team is finishing President Barack Obama's ceremonial "pardon" of one or two of the turkeys for a cute photo-op with the President's family, as he has done six times as president. I suspect poultry purveyors have been jockeying for the honor of providing the Presidentially-pardoned turkeys; and the birds have been vetted for their 15 seconds of media stardom.
This event can be seen as intended: a touching, light-hearted holiday moment as the President and his kids have fun in a mock exercise of the obscure presidential power of reprieve and pardon. But in the reality of our times, it is an unintentionally cruel mocking of this important power that is last hope of tens of thousands of children who ache to be reunited with parents who have spent their lives in federal prison, and which President Obama has incomprehensibly failed to use adequately.
Of the current federal prison population of almost 199,000, about 11,000 men and women have been waiting for President Obama to answer their petition to commute their prison sentences. These petitions ask the President to exercise what is in fact one of his most awesome powers as President -- to correct mistakes and to exercise mercy. The revolutionary lawyers who shaped the Constitution -- John Jay, James Madison, Alexander Hamilton, and John Adams -- knew that even the best justice system inevitably makes mistakes and a mechanism to address those mistakes must be regularly used. The primacy of this power in the eyes of the framers of the Constitution is revealed because they put this power in the same sentence that makes the President the Commander in Chief.
The need for the President to use this power is more urgent than ever. Since George Washington, presidents have routinely used this power to correct mistakes and to shorten the sentences of federal offenders. The federal prison population exploded from 24,640 in 1980, to 219,298 by 2013. Most policymakers recognize that this number is much too large, and that mass incarceration is unjust, tragic and wasteful.
A number of mistakes were made by many people at many levels to produce this tragedy. As counsel to the House Judiciary Committee, I was at the table as Congress made the first big mistake in 1986. The Anti-Drug Abuse of Act of 1986 created mandatory minimum sentences intended for drug kingpins and major traffickers, in order to encourage the Justice Department to switch its focus to the most important cases, away from large numbers of low-level offenders. But in haste and without proper guidance, the Committee selected quantities to trigger the mandatory minimum sentences that are too small to identify kingpins or major traffickers. Instead of setting the triggers at kingpin quantities -- hundreds of kilos of cocaine or tons of marijuana -- the Congress set the five-year mandatory minimum at five grams of crack, the weight of a nickel. Street sellers of crack sell five grams, not kingpins.
Then, in a much larger and longer error, the Justice Department compounded Congress's mistake. Instead of following Congress's intent to go after big dealers, the Justice Department and U.S. Attorneys around the country -- who can choose whether or not to charge any drug defendant -- emphasized the minimum quantities and minor dealers.
A U.S. Sentencing Commission study in 2007 found most federal cocaine cases involved couriers or minor participants, and only a tiny fraction kingpins or major targets. Most federal crack defendants are operating in local neighborhoods where the local police can easily catch them and send them to state prisons, closer to families. Congress's intent that federal law enforcement focus primarily on the high-level global dealers who keep the drug pipelines filled with cocaine and heroin was frustrated by the Justice Department. The result is that now there are over 93,000 men and women serving drug charges in federal prison - 48.3 percent of the federal prison population - and they are mostly the wrong drug offenders.
A third big mistake is that the ultimate institutional safety valve, the President's power of reprieve and pardon, was undermined and broken. Front-page stories in The Washington Post pointed out years ago that this office wasn't working properly, and its staffing and procedures were inadequate to the task. Leaving office, President George W. Bush suggested to the new President Barack Obama that he address this issue. The President and the Attorney General have failed to fix the broken Office of the Pardon Attorney that supports the President's reprieve and pardon decision-making.
The public wants these mistakes fixed.
First, Congress, with President Obama's encouragement, took a small step and passed the Fair Sentencing Act of 2010 to increase the small crack cocaine sentencing triggers, from 5 to 28 grams, and from 50 to 280 grams. To carry out the law, the U.S. Sentencing Commission made important changes to the sentencing guidelines. This has already affected thousands of cases.
Then the federal judges began to fix the mistakes they could. About 6,000 prisoners have successfully petitioned the judge in their case to apply the guideline changes retroactively to their case and to be formally resentenced. Many of these 6,000 were recently released to parole supervision.
Despite pledging to address this problem, President Obama has not taken concrete action on this scale. On July 14, President Obama made an important speech promising to address the problem of over-incarceration. On July 16, President Obama visited a federal prison and repeated his promise to do something about over-incarceration.
One and a half years ago, the Obama Administration established a program to review the sentences of tens of thousands of prisoners in an effort called Clemency Project 2014. Yet, thousands of cases are still in line to be reviewed and no one has been released under it. Even though on July 13, the President commuted the sentences of 46 persons who left prison on November 10, that number is woefully inadequate for the scale of the injustice and this stage in his presidency.
Over President Obama's six and 3/4 years, he has ordered the sentencing reprieve for a total of 76 federal prisoners who have been released early. He has provided no clue or timetable to expect when any more will be released.
President Obama has failed to clean up the mass incarceration stain on the federal justice system where he has the power to do so. I find his inaction incomprehensible because an enormous fraction of Americans agree that there are tens of thousands of federal prisoners serving unjustly long sentences for drug offenses. I find his inaction incomprehensible because in hundreds of cases over the years, federal judges, as they imposed a sentence, confessed from the bench that the sentence was unjustly long. I find his inaction incomprehensible because the mismanagement of the Pardon Attorney's Office that assists the President in the exercise of this power remains unfixed. I find his inaction incomprehensible because about 11,000 petitions that have been sent to him to commute these long sentences have been functionally ignored and languishing.
At hundreds of thousands of tables on Thursday, as there have been for decades, there will be places set for mothers, daughters, fathers, sons, cousins, nieces and nephews who are still in prison. I can only imagine how these families must feel to see their President use his desperately needed clemency powers to pardon a turkey.
I urge you to petition President Obama commute the sentences of thousands of deserving prisoners so they can be reunited with their families before their next holiday gathering. Find the cases that speak to your heart, such as these 25 women who have been left behind by one who was freed by President Clinton.