(President Obama at Busboys and Poets)
“…and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” – The Constitution of the United States of America, Article II, Section 2
President Barack Obama’s first commutation was granted to 34-year-old Eugenia Jennings in 2011, two years into his presidency.
In 2000, the mother of three pleaded guilty to selling 13.9 grams of crack cocaine to a police informant. She was handed a 22 year prison sentence. Her brother, Cedric Parker, appeared before a Senate Judiciary subcommittee in 2009 on his sister’s behalf. She was a drug addict, an alcohol abuser and a victim of sexual assault, he explained. She sold the drugs to try to provide for her family. Not only that, but the law had been written in such a way that defendants unfairly received more time for dealing crack than they would have received for dealing powdered cocaine.
Obama ordered her release for December 2011. She unfortunately passed away from leukemia in 2013. Julie Stewart of Families Against Mandatory Minimums (FAMM) called Jennings’ initial 22-year sentence “overkill.”
Today, President Obama continues to exercise his clemency power, granting more commutations to the many deserving federal prisoners, like Eugenia, who have paid a hefty price for their mistakes and deserve a second chance.
Article II, Section 2 of the United States Constitution grants the executive the power of clemency. With this power, the executive can choose to commute and pardon as they see fit. A commutation is the forgiveness of a sentence while it is being served. Commutations are now most commonly used to help reduce the sentences of nonviolent drug offenders, victims of mandatory minimum sentencing. The offense, however, remains on their record. A commutation is the power to forgive a conviction.
Just a ways beyond the articles is the Bill of Rights. These first ten amendments were added to the Constitution as a guaranteed limitation of the federal government’s power. The nature of these bills suggests that the justice system was intended to be as fair as possible to help guarantee the liberty of the civilians. Of the ten amendments found in the Bill of Rights, half of them explicitly state rules for investigative procedures, criminal proceedings and the treatment of criminals in the system:
This does not include the Ninth and Tenth Amendments, non-enumerated rights and states’ rights, respectively, which many reference for pro-legalization arguments or against mandatory minimum sentences.
While the president only has a set amount of power – which we certainly do not advocate be expanded – there are many conversations that either were not explored or could have been explored further with such a platform. These include the bipartisan outcry for criminal justice reform, the Drug War’s effect on constitutional criminal justice, solutions beyond clemency, the judicial system and policing reform, which will be covered here.
Progress (and regress) in criminal justice reform, particularly as affected by the War on Drugs, is most fairly tracked by a president’s administration. This series hopes to explore the Obama years, what was done for criminal justice reform during that era, what could have been done and what Americans may or may not need to fear in the future.
In April 2014, approximately five years into Obama’s presidency, the Department of Justice unveiled the clemency initiative. The program was designed to help low-level, nonviolent offenders whose sentences were outdated. Deputy Attorney General James M. Cole explained:
For our criminal justice system to be effective, it needs to not only be fair; but it also must be perceived as being fair. Older stringent punishments that are out of line with sentences imposed under today’s laws erode people’s confidence in our criminal justice system, and I am confident that this initiative will go far to promote the most fundamental of American ideals – equal justice under law.
Fast forward to a Washington, D.C., afternoon in March of 2016, a little over seven years into Obama’s presidency.
Obama lunched with former felons at Busboys and Poets, a well-frequented establishment in the nation’s capital. His lunch guests had all had their sentences commuted during his administration, President George W. Bush’s or President Bill Clinton’s.
Obama also broke a significant record that day. News hit that the 61 felonious sentences that he had commuted on the same day meant that he had officially commuted more sentences than the previous six presidents combined.
(White House tweet comparing commutation numbers)
Other significant milestones were also reached at the end of the year. In August, Obama commuted the sentences of 214 inmates. It was the largest number of commutations in a single day since the year 1990. In November, he commuted the sentences of 79 inmates, boosting his total number of commutations to 1,023. With that number, he had officially forgiven more sentences than the past eleven presidents combined.
But it was during that springtime lunch that more moderate audiences really began to pay attention to Obama’s message of “second chances.” The president addressed his criminal justice reform efforts in an article he penned through Medium, bringing to light the very real humans affected by harsh sentences. Obama called to attention the need to “reinvigorate our commutations process.” He also called on Congress to “reform federal sentencing laws, particularly on overly harsh mandatory minimum sentences for nonviolent drug offenses.”
But it wasn’t enough.
Criminal justice reform group #cut50 held vigils throughout in front of the White House, pleading with Obama to do more on behalf of their loved ones before he left office. Thirty-nine-year-old Jason Hernandez, who was granted clemency in 2013, was in attendance at one of the gatherings. The criminal justice system gave Hernandez a life sentence, compared to his drug supplier’s 12 years, because he converted the drugs in his possession to crack cocaine. According to Hernandez, Obama still had so much more that he needed to do:
To me it feel like a last battle cry. President Obama, if he wants to leave his legacy as far as clemency, he has fewer than 60, 70 days to do that, because everyone feels that the door will close as soon as he leaves office.
As Obama’s tenure comes quickly to a close, many fear that Hernandez might be proven correct. Others feel as though the president could have done much more.
The history of the ‘war on drugs’
This is part one of our series “Pardon,” examining the state of nonviolent criminal justice reform as the Obama presidency comes to a close.