Barack Obama’s Democratic Mercy

Barack Obama’s mercy cannot be determined just from looking at the number of people he has pardoned

Jacob Sullum has penned a bizarre indictment of President Obama as “an unmerciful drug warrior” because Obama has pardoned or commuted the sentences of a historically small number of individuals who have been convicted of drug offenses. For example, Sullum notes that law-and-order President Richard Nixon commuted 60 sentences for drug offenders whereas President Obama has commuted only one.

If you accept Sullum’s premise that imprisoning large numbers of people through tough drug laws and then pardoning a few of them later is evidence of a merciful nature, then yes, many presidents outshine Obama in the mercy department. However, if you recognize that changing the underlying law and thereby freeing more drug offenders from prison than all pardons by all presidents in history combined, then Obama is an unusually merciful leader.

For decades national politicians bemoaned the unfair sentences for crack cocaine offenders, but did nothing to change the law. President Obama was the first president to actively pursue reform. The result was Congressional passage of the 2010 Fair Sentencing Act, the first time a mandatory minimum sentence (for anything, not just drugs) had been repealed in 40 years. Even before Attorney General Holder’s subsequent announcement that the Justice Department would reduce the use of mandatory minimums for drug offenders, Obama and Holder had done more to reduce incarceration of drug offenders than any comparable duo in U.S. history.

President Obama apparently believes in mercy that is broad in impact rather than tokenistic. And he makes mercy real through the legislative process of our democratic society rather than the royalist approach of unilateral executive action of which Sullum is, for a libertarian, oddly enamored. The end result may indeed be fewer pardons for drug offenses…because there’s going to be far fewer people who need one.

Author: Keith Humphreys

Keith Humphreys is the Esther Ting Memorial Professor of Psychiatry at Stanford University and an Honorary Professor of Psychiatry at Kings College London. His research, teaching and writing have focused on addictive disorders, self-help organizations (e.g., breast cancer support groups, Alcoholics Anonymous), evaluation research methods, and public policy related to health care, mental illness, veterans, drugs, crime and correctional systems. Professor Humphreys' over 300 scholarly articles, monographs and books have been cited over thirteen thousand times by scientific colleagues. He is a regular contributor to Washington Post and has also written for the New York Times, Wall Street Journal, Washington Monthly, San Francisco Chronicle, The Guardian (UK), The Telegraph (UK), Times Higher Education (UK), Crossbow (UK) and other media outlets.

37 thoughts on “Barack Obama’s Democratic Mercy”

  1. There’s nothing in the pardon power that precludes mass pardons.
    The conclusion I’m drawing is that Obama believes in good policy, but doesn’t care a whit about mercy. After all, Willie Horton! Ooogedy-boogedy!

    1. That he “doesn’t care a whit about mercy” and a “Willie Horton” fear of racist critics might both explain Obama’s failure here, but they are two separate things. In theory, he could care about mercy but allow his fear of racist critics to override this care. This would be consistent with the view that Obama repeatedly engages in preemptive “compromising” with Republicans because he is weak. I am more inclined to the view that Obama doesn’t care a whit about mercy, and is more in sync with Republicans than he lets on when he is appealing to his “base” for votes.

      1. “IN theory???”

        How about THIS theory: President Obama believes “in theory” that the role of Congress is to enact legislation, and the role of the Executive Department is to execute the laws, and the role of the Courts is to adjuticate the application of the laws. Perhaps, “in theory,” President Obama also believes a very powerful role of the President is to influence Congress to pass better legislation, but not as a matter of standard operating procedure to overrule the laws they pass.

        It sounds from Keith’s post that this “theoretical” approach is what Obama’s pursuing, irrespective of his personal feelings about “mercy.”

        1. If that’s true, how do you explain Obama’s failure to send legislation to the Congress to right the injustice done to people who were sentenced under what Obama himself supposedly believes was an cruel and unjust law?

          1. Rand Paul’s discussion of mandatory minimums got some love on MSNBC actually. Lawrence O’Donnell, who is as partisan as they come, called it the bravest thing you will hear out of Washington.

  2. There is obviously no conflict between pardoning and working to change the law. Obama may be merciful with respect to the latter but not with respect to the former. And pardoning is not tokenistic to the person who is pardoned. No matter how many fewer people need a pardon, some still will.

    1. I must also object to viewing the granting of a pardon as a royalist approach rather than a humane safety valve. “Royalist” should be reserved for executive actions that benefit the executive at the unfair expense of other people, not for selfless actions. No matter how much one loves democracy and due process, one should acknowledge that the former sometimes produces unjust laws, and the latter sometimes produces unjust convictions. The pardoning power can help to remedy that, but it requires a President who cares to remedy it.

      1. I agree with Henry. Keith is right that sentencing policy is far more important than the pardon power; but the latter is valuable too, and it´s a criticism of Obama that he´s so legalistically reluctant to use it – even if he is here merely following the general trend. The authors of the American Constitution realized that the pardon power was one of several prerogatives of British kingship that was sound in principle and should be inherited by the executives of a republic.

  3. Keith: “Jacob Sullum has penned a bizarre indictment …..”

    Remember that for Forbes, bizarre bullsh*t is pretty much their stock in trade.
    Yesterday, I was reading some column by a non-too-bright objectivist, and found that he’s a regular contributor, with a whole series of gliberatrian/Randroid garbage. And I’m using ‘glibertarian’ and ‘Randroid’ as deliberate and deserved terms.

  4. …rather than the royalist approach of unilateral executive action of which Sullum is, for a libertarian, oddly enamored.

    Royalism seems to me a defining trait of libertarians; built into their genes and oozing out into their philosophy. Any time a RBC poster dares to denigrate the motives of a billionaire, up will pop a libertarian weasel to defend their nobility, honor, and superhuman specialness. It is like clockwork, the way these spring-loaded vassals leap to nip any hint of anti-wealth in the bud. They seem almost genetically driven to protect wealth’s privileges.

    I would argue:

    Royalism based on wealth is not much different than royalism based on genes. In fact, given the luck behind the acquisition of money, perhaps the genetic M’Lord (tutored to noblesse oblige in the manor) is a higher ass to worship than the libertarian’s upstart billionaire M’Lord. But either way, the libertarian mind has the stench of royalism-sickness wafting about it…

    1. It’s a strange thing about some libertarians. They are only worried about unilateral executive power when the person who wields it does things they don’t like, rather than being against it on principle.

      1. Basically, since we are mostly bothered by acts government commits, rather than acts government ceases to continue committing, we generally see less potential for evil in a unilateral executive power to stop doing something, such as keeping somebody in prison, than in a unilateral executive power to do something, like having somebody extra-judicially killed.

        1. So I gather that all of the discussion about the unfairness of not giving some kind of relief to those who suffered under a law which nearly everyone (including Obama) felt was unjust and the talk about the needless misery those unfairly imprisoned for many years (sometimes for decades) and so forth just sort of bounced off of your libertarian heart?

          1. So, I gather you don’t understand that letting somebody out of prison falls into the “government ceasing to do something” category? They’re ceasing to imprison that somebody. Each day somebody is wrongly in jail is a new wrong, pardoning them or commuting their sentence is the government refraining from that wrong.

  5. I hope that people read the article. Sullums talks about the rate of commutations in addition to the actual number, stating “Nixon granted 60 commutations, 7 percent of the 892 applications he received, during his 67 months in office, while Obama has granted one out of 8,126, or 0.01 percent, over 55 months.” He puts this in the context of Nixon as a drug warrior and Obama as a reformer. It’s important to remember that Nixon didn’t acknowledge that there were people wrongfully locked up, as Obama has by supporting the reduction of the crack sentencing disparity. As Sullum points out, the 18:1 fix was not retroactive, therefore there are a lot of people Obama left locked up while he has the power to let them out. Recognizing that he is not making much of an effort is not bizarre.

    And there was a lot of pressure to reduce the sentencing disparity. It was going to happen eventually, so lets not pretend Obama stood bravely against the tide when he accepted new 18:1 ratio.

    1. There’s certainly plenty of room to criticize Obama, for things he’s done and for things he hasn’t done, but when you bend over backwards to begrudg him any credit for having done something you like (“it was going to happen eventually”) you rather tip your hand.

      1. If “pardoning is not tokenistic to the person who is pardoned,” as another poster said upthread, “it was going to happen eventually” would’ve been pretty cold comfort to all the people who got excessive sentences between now and eventually. And there are a lot more of those than people who missed out on pardons.

      2. Well, in fairness, if you look at the very broad spectrum of support for the law in Congress, not only was a change to correct the disparity inevitable, there were a lot of very conservative Republicans who stuck their necks out a lot further than Obama. I don’t see him leading the charge here; to the contrary, he sent no legislation up to Congress and didn’t seem to have taken any risks to push it through.

        1. Well, in further fairness, having Obama “leading the charge” is pretty much the worst possible way to drum up bipartisan support for an otherwise apolitical, commonsensical piece of legislation. Had Obama come out strongly in favor of it, your “lot of very conservative Republicans” would probably have railed against the change instead of voting for it.

          1. So this is sort of “eleven dimensional chess” where Obama gets credit for a good result even though he neither advocates nor works for the better policy but because he is the source all that is good ? But by that logic, Obama can’t lose. He gets credit for the good that is done by others but for which he had practically nothing to do with. And he gets credit for the policies that he actually champions.

            You know, there are a lot of people who are going to spend maybe decades, maybe the rest of the lives, in federal prison simply because President Obama can’t be bothered to get them out even though he apparently agrees that they shouldn’t be there.

          2. I’m not talking about “11 dimensional chess” or giving Obama “credit”.

            I’m just pointing out that having Obama “lead the charge” on any given issue is (regrettably) more or less certain to turn the GOP from favorable or neutral to active opposition on that issue.

            So if one cares mostly about “making a statement” on Issue X, then one should want to see Obama “leading the charge”. It’ll nicely divide the country into two diametrically opposed camps, and those on the “correct” side can feel good about their superiority. Of course nothing will get done, but that doesn’t really matter, right?

            But if one cares mostly about making a change on Issue X, then one should want to see Obama keeping a low profile until the House and Senate have finished their work on it. In terms of the outcome, it doesn’t really matter whether Obama’s doing that because he’s smart and realizes that it’s the only way to pass the bill, or because he just doesn’t really care about Issue X.

          3. J’s got a point. Look at what happened when Obama led the charge to bomb Syria. Even the usual chicken-hawks were given pause.

  6. Assuming this Wikipedia entry is accurate, Obama has pardoned ten drug prisoners and commuted the sentence of one other.

    On the other hand, his record in granting pardons and commutations is much less merciful than any recent president. I find that greatly disturbing.

    Who to blame? Obama, of course, is responsible for his own actions, so he’s more to blame for this than anyone else.

    However, as usual, there is another suspect, and it turns out to be the usual one:

    Judge Abner Mikva, an early mentor of the president who served as Clinton’s first White House counsel, said that before the 2008 election he and Obama had discussed Clinton’s pardon of financier Marc Rich. The pardon for Rich, whose ex-wife was a major donor to Democrats, was seen as a damaging political favor, even by many Clinton supporters.

    “I do remember a lengthy discussion about Marc Rich and it wasn’t so much about the power as it was about how even a good president can be corrupted by the pardons process,” Mikva recalled. “I think Marc Rich looms larger with Barack Obama than with other presidents because I think he was very, very dismayed by the Marc Rich pardon and the basis on which it appears to have been granted.”

    Bill Clinton: The creep that keeps on creeping.

    1. I’m not clear on why an act of arguably poor judgment by Bill Clinton somehow shifts the responsibility for Obama’s moral cowardice as president from the incumbent to the former president?

      1. Yeah, the power of the Presidency didn’t so much corrupt Clinton, as merely give his pre-existing corruption greater scope in which to be exercised. Power can certainly corrupt, but it didn’t have to in Clinton’s case. The Marc Rich pardon was seen as a damaging political favor because that’s what it WAS. Blatantly so.

      2. Because Bill Clinton poisoned the well, he bears some of the responsibility. And I’m not saying the responsibility shifts from Obama. I said quite clearly, “Obama, of course, is responsible for his own actions, so he’s more to blame for this than anyone else.” Clinton’s decisions over the years have been terribly destructive to the Democratic Party and those in it.

        1. Well, you had the chance at the time to admit you’d nominated, and then elected, a corrupt President, and you actively defended him instead. It’s only fair that you took some of the damage he caused.

          1. I liked George Carlin’s take on Clinton: “Hi, I’m completely fulla shit and howd’ya like that?”

          2. “You”? I didn’t identify as a Democrat at the time. I also voted against the SOB every time he came up in a primary election, something I had a lot of chances to do as an Arkansawyer. I’m not sure, but I might have even voted for Sheffield Nelson for governor once. (Hardly a memorable choice.) I didn’t like him then and I still don’t like him now. That’s a large part of why I didn’t think of myself as a Democrat till this millenium.

            The only time I actively defended him was during the phonied-up scandal that led to impeachment. That was a distasteful task, but it was clear the Republican strategy of seeing how hard they could shake the pinball machine before it tilted was starting. It had nothing to do with defending the man and everything to do with resisting people who were considerably worse.

            All that said, yes, there are a lot of Democrats who helped him sell the party out, and they, too, carry some of the blame. I’m strongly hoping for some event that will allow us to clean house and drive big business, and especially finance capital, out of the party. It’s a long shot, I know, but the Greens are hopeless and no one else is trying.

  7. One thing about Forbes. As part of its new “native” (to use the industry new name for sponsored fake stories) advertising strategy it is now very difficult to tell the difference between “sponsored” content and plain ole real Forbes content, Forbes’ claims to the contrary. A Forbes contributor, such as Mr. Sullum, apparently is someone who paid to be put up on the Forbes site, one way or another. Indeed, Forbes is even hiring “editors” to partner with and take editorial input from advertisers.

    Nice for propagandists and Forbes revenue, not so nice for journalism.

  8. I have to ask: Where’s the science?

    We were promised policy that was science-based. There is virtually no evidence to justify marijuana Schedule One status under the CSA. The CSA assigns the power to schedule and re-schedule substances to the executive branch. Even if Obama was ignorant enough to not understand the near total lack of evidence-based science for marijuana’s Schedule One status, surely he understands that serious question exist about the matter? Why doesn’t he order an immediate review?

    Then there’s the whole issue of disparity under the crack sentencing laws that has been partially rectified. Why not immediate evaluation of existing sentences for automatic relief in accord with the revised standards? They’re still futzing around on the issue over in the “Justice” Dept.

    If this was an issue wholly with the issue of drugs and sentencing disparity, I could see being cautious on a touchy subject, although I’d certainly acknowledge shifting public opinion. However, this a part of a pattern of Obama sound bites for the masses, but real policy change only for the 1%, because that’s all he’s shown evidence of being really committed to.

  9. Keith,

    I understand Obama’s situation. Everyone who has been a police officer, prosecutor or judge worries that the guy you give a break is going to rape and murder somebody next week. That person is forever going to have your career in his pocket.

    On the other hand, there does seem to be a fundamental inability to relate a broad policy issue to the suffering of the human beings who are the victims of that mistake or cruel policy. If Obama genuinely believes that the sentencing disparity is unjust then surely he believes that the men and women sentenced under the previous law were treated unjustly?

    So, if his action on the sentencing disparity was principled and not merely politique, what do you think justifies his failure to do his utmost to provide justice for people he supposedly believes have suffered a injustice?

  10. I have a great deal of sympathy for a reluctance to use the pardon power on behalf of living, flawed people who’ve suffered routine injustices, as opposed to the safe and the rare cases: people who’ve demonstrated great personal growth, people who are dead, people who received injustice far beyond the routine.

    But I do think there’s room for compromise here: there should have been, and there should still be, more pressure to make the legislative fix retroactive. Of course, given the composition of the current House to make such a suggestion is spitting in the wind …

  11. I agree that Congress should remedy this situation and that if they fail to do so the president ought to use the power of the pardon to do so. However, I also agree that Congress and the president deserve acknowledgment for having made one big step in this direction, which I think was the ultimate point of Keith’s post.

    President Obama and the Congress managed to work together to accomplish something good here. Good behavior like that is increasingly rare and ought to be rewarded. Ignoring the positive steps that they have taken, and focusing exclusively on the stuff they haven’t done, will remove any incentive for politicians to listen to you.

  12. One of the reasons Lincoln is looked on with such fondness is that he actively looked for excuses to pardon soldiers who were unmistakably guilty yet were being punished beyond their culpability.

  13. The 2010 fair sentencing act should be called the 2010 less but still unfair sentencing act. An 18:1 disparity only looks good standing next to a 100:1 disparity.

    Until the philosophy which hold one race superior
    And another
    Is finally
    And permanently
    And abandoned –
    Everywhere is war –
    Me say war.

    That until there no longer
    First class and second class citizens of any nation
    Until the colour of a man’s skin
    Is of no more significance than the colour of his eyes –
    Me say war.

    That until the basic human rights
    Are equally guaranteed to all,
    Without regard to race –
    Dis a war.

    That until that day
    The dream of lasting peace,
    World citizenship
    Rule of international morality
    Will remain in but a fleeting illusion to be pursued,
    But never attained –
    Now everywhere is war – war.

    Bob Marley

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