Presidential Mercy as a Means to More Just Jurisprudence

Greggory Moore | Moore Lowdown
Presidential Mercy as a Means to More Just Jurisprudence

image by: O'Dea

President Obama commuted the sentences of hundreds of nonviolent drug offenders. But this is a drop in the bucket he should fill up before he leaves office.

The quality of mercy is not strained.

It droppeth as the gentle rain from heaven

Upon the place beneath. It is twice blessed:

It blesseth him that gives and him that takes.

'Tis mightiest in the mightiest.

–William Shakespeare, The Merchant of Venice

The White House bragged recently about President Barack Obama's "commitment to reforming our criminal justice system," claiming that the proof is in the pudding: he's commuted the sentences of more individuals than the past seven presidents combined.

But considering that the United States has the world's highest incarceration rate—an ignominious position obtained on Obama's watch—with approximately 40% of federal prisoners incarcerated for nonviolent drug offenses in a penal system that has a 1,600% rise in the number of for-profit prisons during the last quarter-century, perhaps it is more fitting to bury Obama than to praise him?

It's not that Obama doesn't get it, as he evinced in April 2015 when he spoke of the "devastation of communities as a consequence of nonviolent drug offenses. I am a very strong believer that the path we have taken in the United States in the so-called 'War on Drugs' has been so heavy in emphasizing incarceration that it has been counterproductive. You have young people who did not engage in violence who get very long penalties, who get placed in prison and then are rendered economically unemployable, are almost pushed into the underground economy, learn crime more effectively in prison, families are devastated. So it’s been very unproductive.”

Nonetheless, it appears Obama will end his eight-year presidency with marijuana right where it was federally when he took office: in Schedule I, categorized with drugs like heroin that have a "high potential for abuse" and with "no currently accepted medical use"—never mind as far back as the first year of Obama's presidency the American Medical Association called for his administration to reconsider the classification.

Considering that Obama's first attorney general, Eric Holder, has expressed his belief that marijuana should not only be reclassified but perhaps decriminalized completely, whereas Holder's replacement, Loretta Lynch, has dodged the rescheduling issue and said outright that she opposes legalization (even as the "Democratic Party" encourage[s] the federal government to remove marijuana from the list of 'Schedule 1' federal controlled substances and to appropriately regulate it, providing a reasoned pathway for future legalization"), it appears this is not an area of criminal-justice reform that interests Obama. (It should be noted that the Controlled Substances Act empowers the attorney general to "remove any drug or other substance from the schedules if he finds that the drug or other substance does not meet the requirements for inclusion in any schedule." In other words, you can't blame Congress for this one.)

To be sure, the majority of the sentences Obama has commuted were for nonviolent drug offenders. According to the White House, "the President directed the Department of Justice (DOJ) to prioritize petitions for commutations from individuals convicted of non-violent drug offenses who were serving longer sentences than they would be given today if convicted of the same crime." Among his most recent batch of clemencies were "67 individuals serving life sentences—almost all for nonviolent drug crimes. […] All of the individuals receiving commutation today, incarcerated under outdated and unduly harsh sentencing laws, embody the President’s belief that 'America is a nation of second chances.'"

But as the Washington Post's Christopher Ingraham points out, a commutation does not carry the overall punch of a pardon. A commutation reduces a current sentence being served, but it does not change the fact of conviction or its aftereffects (which as can be heavy with felonies), while a pardon "'is an expression of the president’s forgiveness and ordinarily is granted in recognition of the applicant’s acceptance of responsibility for the crime and established good conduct for a significant period of time after conviction or completion of sentence.' In other words, as legal scholar Michael Walden of New York University once explained, a 'pardon wipes out the conviction[,] while a commutation leaves the conviction intact but wipes out the punishment.'"

When it comes to pardons, Obama has issued fewer (70) than any president going back to William McKinley, who served only four years in office before being assassinated in 1901. Combining Obama's commutations and pardons (which Ingraham opines is the way to obtain the fullest picture of presidential clemency), while Obama may be more merciful than the four men directly preceding him in office, he's been less merciful than every other president of the last 119 years (as far back as the DOJ keeps such statistics).

So when White House Counsel Neil Eggleston says, "Our work is far from finished," truer words could not be spoken. Still imprisoned are tens of thousands of nonviolent drug offenders, people whose only so-called crime concerns choices consenting adults make about what substances they put in their own bodies. According to the American Civil Liberties Union, this includes over 1,800 people serving life sentences with no chance at parole. Not for murder or rape or defrauding the public out of billions of dollars: for drugs.

Leaving such people to languish is beyond unmerciful: it is a crime against society and humanity. President Obama has talked about ending the "War on Drugs," yet he has freed very few of its prisoners, let alone pardoned them for their supposed sins. With a simple stroke of his pen he can change to reality on the ground, life by life.

About the Author:

Except for a four-month sojourn in Comoros (a small island nation near the northwest of Madagascar), Greggory Moore has lived his entire life in Southern California.  Currently he resides in Long Beach, CA, where he engages in a variety of activities, including playing in the band MOVE, performing as a member of RIOTstage, and, of course, writing. 

His work has appeared in the Los Angeles Times, OC Weekly, Daily Kos, the Long Beach Post, Random Lengths News, The District Weekly,, and a variety of academic and literary journals.  HIs first novel, The Use of Regret, was published in 2011, and he is currently at work on his follow-up.  For more information:


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