President Barack Obama’s Nov. 21 pardons of three marijuana offenders are extremely unlikely to indicate any shift in the White House’s pot policies. The three had already served their sentences.
More important is his commutation of crack dealer Eugenia Jennings’ sentence, the first clemency request Obama has granted since he took office. Groups that advocate eliminating the difference between penalties for crack and powder cocaine pointed to her case as an example of the system’s injustice.
"Her case screamed out for commutation,” said Kara Gotsch of the Sentencing Project in Washington, DC.
Jennings, 34, of Alton, Illinois, will be released next month after serving 10 years in prison. A mother of three children, she was diagnosed with cancer earlier this year. Convicted of selling slightly less than a half-ounce of crack (actually, trading it to an undercover informant for designer clothing), she received a mandatory minimum sentence of 21 years and eight months because she had two previous convictions for selling about a gram of crack.
“Now is that fair? It’s not,” the judge who sentenced her in 2001 stated, “Your whole life has been a life of deprivation, misery, and whippings, and there’s no way to unwind that. But the truth of the matter is it’s not in my hands. As I told you, Congress has determined that the best way to deal with people who are troublesome is we just lock ‘em up.”
Jennings was not eligible to have her sentence reduced under the Fair Sentencing Act of 2010, a long-sought reduction in the penalties for crack cocaine. The previous law, enacted in 1986 at the peak of the panic about crack, set a five-year minimum sentence for possession of five grams of the drug (then worth less than $500), the same penalty as for half a kilogram of powder cocaine (then worth more than $8,000). The results were that federal prosecutors primarily went after small-timers. In 2005, more than 55 percent of federal crack defendants were street-level dealers.
The Fair Sentencing Act raised the quantity of crack needed to trigger the five-year minimum from five grams to an ounce. However, it is only partially retroactive. Only about half the 24,000 federal prisoners serving time for crack offenses will be able to apply to have their sentences reduced, Jasmine Tyler of the Drug Policy Alliance estimates. The proportion would be smaller if the Justice Department hadn’t agreed to stop using the old minimums for “pipeline cases,” people charged with offenses before the 2010 law went into effect, Gotsch says.
Jennings was ineligible for a sentence reduction on two counts. First, she was classified as a career offender because of her two previous convictions. Second, she was serving the mandatory minimum, even though the amount she was convicted of selling would have been too small to trigger the minimum under the revised law.
But sentencing-reform advocates want Obama to use his commutation power to reduce sentences en masse. “I would like to see the President provide clemency to the others,” says Tyler, the DPA’s deputy director of national affairs.
Obama has granted fewer requests for clemency than any President in the last century, even considering that most issue a batch of pardons just before they leave office. As of Nov. 21, he has given 22 pardons and commuted one sentence. Those represent about 0.3 percent of the petitions for clemency he has received.
In contrast, George W. Bush gave 189 pardons and 11 commutations, approving 1.8 percent of the petitions for clemency he received. Bill Clinton and George H.W. Bush granted clemency at an even higher rate, in 5 to 6 percent of cases. Clinton issued 396 pardons and 61 commutations, while Bush I gave 74 pardons and three commutations. What's more, Obama has pardoned 10 drug offenders; Bush II pardoned 36 and commuted the sentences of eight. (Bush’s most notorious commutation was that of Lewis “Scooter” Libby, which he issued just before the former White House aide had to start serving a 30-month sentence for lying to a federal judge.)
Pardoning offenders is a crucial presidential power, says Eric Sterling of the Criminal Justice Policy Foundation. It’s mentioned in the same paragraph of the Constitution that makes the President commander-in-chief of the armed forces.
“After three years, to find only one prisoner whose sentence needs to be shortened is a disgraceful failure to use this power,” Sterling says. “It's a gross failure to carry out the duty of correcting injustice. For someone who taught constitutional law, it’s inexplicable. Either he does not care, or he’s profoundly afraid to do what needs to be done.”
The mandatory minimum sentences for relatively small quantities of drugs are “a mistake Congress made in 1986,” says Sterling, who was then a staffer on the House Crime Subcommittee. In the 25 years since then, he continues, the number of federal prisoners has increased sixfold, from 36,000 to 217,000, and almost half are drug offenders.
If you accept the logic of prohibition, that prosecuting dealers can effectively reduce drug trafficking, Sterling says, then “the federal cases should be reserved for the most serious, most dangerous, highest-level drug traffickers.” The states should handle mid-level wholesalers and distributors, he explains, but the Brooklyn district attorney, for example, doesn’t have the resources to go after a cocaine network that handles tons of the drug and stretches to Miami and Colombia.
Instead, he says, the Department of Justice is going after low-level dealers who are easy to convict, and are often represented by public defenders. “Nobody who is so pathetic that they can’t hire their own lawyer should be in federal court,” he says.
The crack-sentencing issue is one of the few areas where drug-legalization activists give Obama credit. The 2010 changes fell short of what activists wanted, but are a significant reform, says Tyler. But on marijuana, “it’s hard to tell the difference” between him and George W. Bush.
Though federal drug czar Gil Kerlikowske has said “we’re not at war” with drug users, the administration’s “current efforts would indicate that we are,” Tyler says. According to Federal Bureau of Investigation figures for 2009 and 2010, about 46 percent of the more than 1,600,000 annual drug arrests in the Unites States are for simple possession of marijuana. More than 80 percent of all drug arrests are for possession.
Obama has also retained Bush holdover Michelle Leonhart as head of the Drug Enforcement Administration, Tyler notes. He has used the Internal Revenue Service to try to close medical-marijuana dispensaries in states that have legalized it, and the Bureau of Alcohol, Tobacco, and Firearms has declared it illegal for registered medical-marijuana users to own guns. Kerlikowske has said that the word “legalization is not in the president's vocabulary, nor is it in mine.”
“That’s outrageous, especially when you consider the extreme racial disparities in marijuana arrests,” said Tyler.