Six Reasons Why Obama’s Clemency Program for Drug Offenders Doesn’t Change Mass Incarceration One Bit

It’s all over the internet. The Obama administration is talking up the possibility of using presidential clemency powers to release some undetermined number, perhaps hundreds or even thousands of federal prisoners without wealth or political connections from their unjustly long drug sentences. But hold your hosannas, don’t get your hopes up. Though the precise numbers are unclear at this time, what’s unmistakably evident is that this is in no sense whatsoever the beginning of a rollback of America’s prison state. The releases, as the attorney general and government officials are describing them, will not represent any significant or permanent change to the nation’s universal policy of mass incarceration, mainly of poor black and brown youth. Here, in plain English are 6 reasons why.

1. The Obama administration’s expected releases will use the president’s clemency powers. Presidential clemency amounts to forgiveness after the fact. Clemency does not change a single word or phrase in any of the galaxy of state and federal laws which have already sent literally millions to prison for absurdly long sentences for what authorities call “non-violent drug offenses,” and under which hundreds of thousands are currently serving those same sentences and hundreds of thousands more are awaiting trial and sentencing. Clemency leaves those laws in place, so that the places of those released will soon be filled again.
2. Presidential clemency will set no legal precedents that current or future defendants in federal or state drug cases, their attorneys or sentencing judges can use to avoid the application of unjust existing laws, including harsh mandatory minimums and sentencing guidelines. Like the unjust statutes, the unjust legal precedents which have helped filled state and federal prisons to bursting will also remain intact.
3. Presidential clemency will have no effect on the predatory conduct of police and prosecutors on the state or federal level. Police departments will remain free to conduct their “war on drugs” almost exclusively in poor and minority communities. Prosecutors will still be able to coerce defendants into accepting plea bargains, and threaten them with longer sentences if they go to trial. If only one in twenty defendants across the board and even fewer in federal court currently go to trial, what does that say about the ability or the willingness of our courts to even try determining guilt or innocence? Federal prosecutors have publicly thumbed their noses at Eric Holder’s feeble questioning of the war on drugs, stated their intention to continue filling the prisons and jails, and local prosecutors in the US are elected officials accustomed to running for office based on how many people they can lock up for how long.
4. Presidential clemency can only be applied to federal prisoners, who are a mere 190,000, or 11% of the roughly 1.7 million currently serving time. (Another 600,000 are awaiting trial on all levels or serving misdemeanor time.) If we’re talking about federal prisoners serving drug related sentences, the universe shrinks to only 100,000, or 5% of the nation’s 2.3 million prisoners.
5. There are more former prisoners than current ones. For the rest of their lives, former prisoners and their families are viciously discriminated against in a host of ways, in the job and housing market, in education and public services and in access to health care, all legally. That won’t change. Even the few that get this clemency won’t be protected from that.
6. The federal government will NOT even be screening all federal drug prisoners to determine who is eligible for clemency. Attorney General Holder has instead announced that criminal defense lawyers and organizations like the ACLU are being asked to bring to the government’s attention cases they imagine are most deserving of clemency. Don’t they have, you know, a Department of Justice for that? Depending on private organizations and attorneys to come up with the cases for possible clemency turns the whole thing into an exercise in philanthropy, not the fundamental change in governmental policy that people need, want and demand. It means that prisoners serving unduly long sentences who don’t have vigilant private attorneys and advocacy organizations on their case will remain unjustly imprisoned, while those with outside friends have a chance at early release.

The bottom line is that an act of presidential clemency, while good news for the lucky hundreds or thousands of families involved, will leave no legal footprint and make no institutional impact upon the universal policy of mass incarceration. For this reason, it’s exactly NOT a first step that can lead to something more. It’s a dead end. At the rate the pipelines are pumping them in, their cells will be refilled in a month or two, no problem. It’s hard to avoid the conclusion that this clemency initiative is nothing more than a lazy, cynical and nearly empty gesture it hopes will buy some black votes and good will in 2014 and beyond.

Is it better than nothing? Yes, of course. It’s just not that much better, and we definitely DO have a right to expect much, much better. There are millions locked up. A couple thousand may be released. But a million is a thousand thousands. The dead end of presidential clemency for a handful on the federal level simply does not scale even to the beginning of changing the institutional policies of mass incarceration. On that level it’s bogus. It will free not one state prisoner a day earlier and initiates no processes or lasting precedents that ever will. It will help none of the hundreds of thousands of families of former prisoners and won’t affect any cases in the pipeline, which will refill the slots of those who receive clemency in weeks, and it doesn’t change what police or prosecutors and courts do either.

This is not the result of some soaring vision of justice, and cannot lead to any lasting institutional change. It leaves the prison state completely intact, just giving the most hopeful and the most cynical something to talk about in the months leading up to another mid-term election, when the administration, and Democrats need the black vote.

It didn’t have to be this way. During the first two years of the Obama presidency, when his party had a lock on both houses of Congress, the president and congressional Democrats had a chance to write retroactive revocation of tens of thousands of sentences into its so-called Fair Sentencing Act. Despite this being a matter of desperate concern to the constituency that elected them, it was not a priority for the first black president or for the black political class at the time. Every year since, the Obama Department of Justice has had the chance to rewrite the way it distributes federal funding to state and local law enforcement agencies to discourage mass incarceration. Every year the president had the ability to close some of its notorious federal supermax prisons, or find ways to deny funding for such things on the state level. None of this happened. In fact, while a broad citizen movement in Illinois, the president’s home state finally closed a state supermax prison, Obama’s latest Bureau of Prisons budget has the feds buying another unused Illinois prison for conversion into a federal supermax, ADX Thomson, or Gitmo North. The federal prison budget has grown every year president Obama has held office.

Sophisticated apologists for the president will of course chide folks who find “better than nothing” insufficient for being naive and foolish. Are they? Were the tens of millions who elected Barack Obama in 2008 and 2012 foolish for imagining the have even the right to demand better? What about the many, many thousands of activists who gave freely of their time and efforts year in and year out to make the careers of the black political class possible, the people who called house meetings, union and church meetings? Were the folks who went door to door, who rallied and registered voters and more to elect black aldermen, sheriffs, county commissioners, mayors, legislators and finally a black president — the people who DID imagine and DID tell their children and their neighbors that this would make things better — were they all just unrealistic chumps?

I used to be one of them. They didn’t say – we didn’t say — it was “better than nothing.” We told each other, and often we actually believed electing black faces to high places was a necessary step toward making things better. Were we naïve and foolish to imagine a better world is even possible? Or is our black political class too cynical, too corrupt, too prosperous and too lazy to share the dreams of the ordinary people they supposedly represent?