OSLER: Debating the drug war

Crack cocaine sentences should be commuted

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The Thanksgiving ritual in which the president of the United States pardons a turkey has become a strange and ironic joke. Our recent presidents seem to regard this photo op as a replacement for the actual use of their constitutional pardon power. Like his predecessor, President Obama has largely ignored his duty to consider appropriate cases for clemency. This Thanksgiving, though, should be different: He should announce a broad program to commute the sentences of thousands of federal prisoners serving sentences related to crack cocaine. All three branches of government have already declared these sentences to be unfair and wrong.

In the past few years, commentators on the left and right have come to an unusual consensus: They agree that federal criminal law is too expansive, particularly in relation to narcotics cases, and results in over-incarceration. In other words, we are spending a lot to achieve very little.

Nowhere is this more true than with those convicted of possessing or selling crack. For more than two decades, hastily conceived and overly harsh mandatory minimums and federal sentencing guidelines exacted the same sentence for possessing or selling five grams of crack as they did for selling 500 grams of powder cocaine. The twisted logic behind this 100:1 ratio doesn’t take long to refute, since crack is made from powder cocaine, usually by street sellers. Thus, the harshest sentences were borne by the least culpable members of the distribution chain — those at the very bottom. Almost always, too, those receiving these lengthy sentences were black.

Now, all three branches of government have seen the light and rejected this failed scheme. Mr. Obama decried the 100:1 ratio both as a candidate and once in office, urging equalization of sentences for crack and powder cocaine. Courts, too, saw the fallacy in the law, and in 2009 the Supreme Court held that sentencing judges could “categorically reject” the 100:1 ratio in the sentencing guidelines. Finally, in 2010, Congress acted and swept away the noxious ratio in favor of a less onerous 18:1 ratio. In crafting a compromise to get the law through to passage, however, Congress did not make the change retroactive to those already serving sentences. Those prisoners were left to serve out their sentences under the 100:1 ratio.

The result of all this is profoundly unfair. Thousands rot in prison under a sentencing scheme now uniformly rejected. The best, and perhaps only, recourse for them is the president’s clemency power. He has the ability to shorten their sentences to what they would be under the new, better law.

A wonderful precedent for this, from a Republican administration, sets out the procedural pathway to mass commutation. In 1974, President Gerald R. Ford commuted the sentences of more than 14,000 people serving sentences for draft evasion, using a special commission which existed for exactly one year. The process was efficient and fair, and could be easily replicated today. Most people don’t seem to remember the Ford commutations, which may be the idea’s best recommendation. Ford’s commutations achieved their goal without controversy, even when dealing with the hot-button issue of draft evasion.

Using the process Ford created, Mr. Obama could thin out the prison population without compromising principle or public safety. After all, the sentences these prisoners are serving have already been condemned as too long relative to the interests of justice. The time to announce such a plan is now, before more time is served and more money is spent.

This year, Mr. President, forget the turkey and free the prisoners unfairly bound.

Mark Osler is a former federal prosecutor and a professor of law at the University of St. Thomas in Minnesota.

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