Sentences Commuted
11:25 pm
Wed January 1, 2014

Commentary: Of Criminal Justice And Executive Reprieves

You can be just or you can be merciful but it’s damned hard to be both simultaneously. Barack Obama may have pulled off that difficult trick when he recently commuted the sentences of eight people serving extended time for crack cocaine violations.

President Barack Obama
Credit Pete Souza | White House | 2010 photo

Perhaps moved by the holiday spirit, the president exercised his constitutional authority to “grant Reprieves and Pardons for Offenses against the United States” and released the federally imprisoned octet in time for its members to be home for Christmas.

On Dec. 24, a Post-Dispatch editorial praised Mr. Obama’s use of clemency and took the opportunity to take a concomitant swipe at Missouri Gov. Jeremiah “Jay” Nixon for his failure to follow suit. In this yuletide drama, Obama played Father Christmas while Nixon was cast as the Grinch.

Well, it wouldn’t be Thursday if I didn’t disagree with somebody about something, and this week is no exception.  Though my objections here are qualified, they are still significant.

Barack The Merciful

The power to pardon crimes and commute sentences is a vestige of our English heritage. King Henry I enacted the Legis Henrici, or the “Law of Henry,” that proclaimed the Crown to be the victim of all criminal offenses. That critical legal precept transformed the matter of retribution from a private concern into an obligation of the state. Henceforth, the monarch would prosecute on behalf of the injured party.

But if the sovereign were the legal victim of a crime, it was also within his province to forgive. The founders, themselves the product of monarchy, conferred this authority to the nation’s chief executive.

This option is now generally understood to be a fail-safe mechanism to prevent gross injustice. However, the decision is both plenary — meaning it is not subject to further review — and absolute. The only constitutional limitation on the power is that it cannot be employed in cases of impeachment. There is, then, no legal barrier to prevent a sitting president from freeing every federal inmate nationwide with the stroke of a pen.

In the present case, Mr. Obama did not pardon the crack offenders, which would have nullified their convictions, but rather commuted their sentences to time already served. Though his actions in this regard strike me as reasonable, the inferences some have drawn from them are not.

Reflecting a sentiment popular in progressive circles, the editors at the Post portrayed the newly freed prisoners as victims “who had been caught up in the overreaction to the crack epidemic of the 1980s.” They went on to note that poor, black crack users were given “disproportionately long sentences” compared to the wealthier consumers of powder cocaine.

As a veteran of the crack wars, I can testify firsthand that the legislation that provided enhanced penalties for trafficking in the potent drug had nothing to do with class warfare and everything to do with its urban variant. Working in the Homicide Section of the SLMPD, I saw the damage done on a daily basis.

When the highly addictive narcotic was first introduced, it was distributed primarily through street gangs. Remember the Bloods and the Crips? These groups resolved territorial disputes over who could sell in which market at gunpoint.  The term “drive-by shooting” thus entered the household vernacular as innercities across the country devolved into free-fire zones.

Yes, most of those prosecuted for crack were poor and black but so were most of the innocent bystanders who were gunned down in the attendant mayhem. Now that crack has fallen from favor and the violence it spawned has subsided, the case can be fairly made that the harsher penalties are no longer needed. But to contend that they were originally enacted because of some sort of Jim Crow bias is patently ridiculous.

Jeremiah the Just

During his five years as governor, Mr. Nixon has exercised his power to grant clemency to state convicts exactly once. In 2011, he spared the life of a condemned murderer, commuting his sentence to life without parole. He offered no explanation for his sole act of mercy, nor was he obliged to.

Perhaps, as the Post editorial seemed to suggest, his dearth of compassion reflects an indifference to the plight of the unfortunate.  Alternatively, it may be that the long years he spent as a prosecutor before entering the governor’s mansion have tempered his liberal impulses.

The uninitiated tend to think of the criminal justice system as a giant Pez dispenser: Pour a bunch of facts into a courthouse and out pops a tidy little packet of justice. Those who labor within the system know that nothing could be further from the truth.

Convictions are difficult to obtain, and they should be. A citizen’s freedom is precious; and before it can be compromised, the state must satisfy an exacting standard of proof. There is nothing automatic about justice. It is wrought through long hours of toil and often exhausting deliberation by cops, prosecutors and judges as well as by the lay people who are summoned as witnesses and serve as jurors.

Maybe Jay simply respects the process and feels the unanimous verdict of 12 jurors should outweigh a singular executive whim. Perhaps he believes in the separation of powers and is reluctant to tamper with the verdict of an independent judiciary.

The prerogative to grant clemency is derived from the ancient right of kings. As with any unfettered discretion, it is best used judiciously — and judicious decisions are normally provided by a judge.

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