Of all the powers of the presidency, the pardon is perhaps the most absolute. The president can pardon anyone for any or no reason, with an exception in the case of impeachment (so he may not pardon himself). It provides a kind of emergency valve for the criminal justice system, in which people who have been unjustly convicted can still appeal to common sense and decency.
President Obama has been more stingy with this power than any president in American history. It betrays a rampant political cowardice in his administration, and a callous disregard for human rights.
Presidents have been pardoning fewer and fewer people in recent history, but Obama has set a new record in pardoning just 64 people so far. Both George W. Bush and Bill Clinton pardoned more — and so did even the first Bush, despite the fact he was only in office for one term. What's more, many of Obama's pardons have been for people who were already released from prison, making them more PR efforts than victories for justice. His record on commutations is better, but not by much.
Contrast those few dozen with the roughly 8,800 people in prison because the change in crack sentencing rules passed in 2010 did not apply retroactively. On simple fairness grounds, it's extremely easy to argue that such people should have their sentences commuted en masse. Why should people be incarcerated for vastly different durations simply because they committed their crimes in different eras, especially if the crimes were minor drug offenses?
But Obama has done no such thing. In fact, the Obama Department of Justice has actively worked to keep people in prison whose sentences are literally illegal. Consider the case of Ezell Gilbert, who was sentenced to nearly a quarter-century in prison in 1997 after being caught with 50 grams of cocaine. When sentenced, he noted that the prosecutor had misclassified one of the prior offenses, implying a lesser sentence should have been applied. But he was still slapped with the bigger sentence. In 2008, the Supreme Court ruled in a similar case that Gilbert's logic was correct, and he petitioned successfully for early release.
At a subsequent appellate hearing, Justice Department lawyers argued that Gilbert's victory would set a precedent for many other people who were also illegally imprisoned:
In May 2011, the same court, led by a different group of judges, sided with the original judge, saying that the "finality" of sentences was too important a principle to allow prisoners to be released on a second rather than first petition, even if the prison sentence was illegal. A contrary rule would force the courts to hear the complaints of too many other prisoners. Mr. Gilbert was rearrested and sent back to prison to serve out his illegal sentence. [The New York Times]
Why are they doing this? There is the fear that if they freed those thousands of wrongfully imprisoned people, a few would probably commit more crimes and end up back in prison, setting the stage for another Willie Horton advertisement. Better thousands upon thousands of people be imprisoned unjustly than the administration have to deal with a political scandal.
This rank political cowardice was also seen in the case of Shirley Sherrod. She was a minor USDA official who was smeared as a racist when Andrew Breitbart published a misleadingly edited video of a speech she gave. Administration officials panicked, and Sherrod's supervisor demanded she pull over her car and type out her resignation on her phone — without even getting her side of the story.
But the fear is clearest and most reprehensible when it comes to the military prison at Guantanamo Bay. Though the population there has been shrinking with grinding slowness, there are still more than 100 prisoners left, and almost half have been cleared for release since 2009. Shaker Aamar, a prisoner held for 13 years without trial or charge, who was cleared for release to the U.K. in 2013 following a personal plea from British Prime Minister David Cameron, is still stuck there in Kafka-esque red tape.
Why all the foot-dragging? There is still the worry that, after years of wrongful imprisonment and torture, the prisoners might have a bit of a grudge against the United States. When America screws up, it is the prisoner who must pay.
To be sure, Obama shares this characteristic with most of the rest of the American elite. Very few care about poor black people in prison for dealing crack. The Pentagon is reportedly behind the delay of Aamar's release. And when Obama took initial steps to close Guantanamo and move the prisoners to a maximum security prison on U.S. soil, most of Congress reacted with screaming outrage.
Yet Obama could make this happen, if he so wished. Nobody can interfere with his use of pardons. If no other country will take the innocent people who have been kidnapped and tortured in Guantanamo, they could be pardoned and given temporary homes in the U.S. And it simply beggars belief that Defense Secretary Ash Carter would disobey a direct order to free Aamar and his colleauges.
It looks to me like the president has other concerns.
