On Monday, President Obama announced that he would commute 46 “unduly harsh sentences” as the first wave of what his administration has promised will be an aggressive effort to expand its (up unto this point fairly rare) grants of mercy. This decision did not sit well with several key House Republicans, including some who have recently indicated that they are willing to work with Democrats on criminal justice reform. In a letter addressed to Attorney General Loretta Lynch on Tuesday, 19 members of the House Judiciary Committee — including its chair — attacked the president’s grants of clemency.
Much of the letter consists of a list of questions about the particular individuals who received clemency; the lawmakers want to know, for example, “what quantity of narcotics did each offender possess?” The letter’s primary substantive critique of the administration, however, is a novel constitutional argument that Obama and the Justice Department are discriminating in favor of drug offenders in a manner that is somehow legally objectionable. “[T]he fact that the Department’s clemency initiative is focused solely on federal drug offenders continues this Administration’s plainly unconstitutional practice of picking and choosing which laws to enforce and which to change,” the letter claims.
The suggestion that the Obama administration is crossing a line because they’ve decided to focus their efforts on drug offenders is unusual as an historic matter. President Gerald Ford discriminated in favor of disgraced former presidents in his exercise of the executive’s power to grant mercy, while President George W. Bush discriminated in favor of former high-ranking aides to Vice President Dick Cheney. Presidents have historically exercised their power to grant pardons or clemency as they please, and they are not required to get Congress’s permission in order to do so.
Indeed, the president’s broad discretion to grant mercy to whoever they choose, when they choose, so long as the beneficiary of that mercy is an alleged or convicted federal offender, is part of America’s constitutional design. The Constitution itself lays this power out in broad terms, providing that the president “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” As the Supreme Court explained in Schick v. Reed, the drafters of this constitutional provision “spoke in terms of a ‘prerogative’ of the President, which ought not be ‘fettered or embarrassed.’” Moreover, the Court added, “the power flows from the Constitution alone, not from any legislative enactments, and that it cannot be modified, abridged, or diminished by the Congress.”
Should the signatories to the House Republicans’ letter distrust the Supreme Court’s interpretation of the Constitution, perhaps they will trust the conservative Heritage Foundation. According to The Heritage Guide to the Constitution, “[t]he power to pardon is one of the least limited powers granted to the President in the Constitution,” and its scope “remains quite broad, almost plenary.”
So the accusation that President Obama has somehow misused his powers by giving particular attention to federal drug offenders is frivolous. There’s also a very specific policy reason which explains why the administration would target drug offenders over people convicted of a different crime — federal sentencing law has changed significantly with respect to drug offenders in recent years. As the House Republicans’ letter itself explains, former Attorney General Eric Holder announced that the administration would prioritize drug offenders who, among other things, “likely would have received a substantially lower sentence if convicted of the same offense(s) today,” when determining whether to issue a grant of clemency.
In any event, the letter suggests that bipartisan progress on criminal justice reform could prove fragile in the face of some lawmaker’s overarching need to attack leaders of the other party. Outside of Congress, there are encouraging signs for advocates eager to see traditional opponents come together to reduce excessive sentences and otherwise reform the criminal justice system. Liberal groups such as the Center for American Progress (which is the partner organization of ThinkProgress’s parent organization) and the ACLU have joined with conservative groups such as FreedomWorks and Americans for Tax Reform to push for wide-ranging reforms. The Koch brothers are a major supporter of this effort.
There have also been hopeful signs for supporters of criminal justice reform within Congress. Reps. James Sensenbrenner (R-WI), for example, partnered with Rep. Bobby Scott (D-VA) to draft legislation that, among other things, would reduce many sentences and steer low-level offenders towards probation as an alternative to prison. Rep. Jason Chaffetz (R-UT) belongs to a bipartisan caucus seeking to educate “the public and Members of Congress on crime mitigation, rehabilitation, community collaboration, reform of the prison system, and the advancement of safety and justice in the United States.”
And, yet, both of these lawmakers signed the letter to Attorney General Lynch.