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On Monday, President Obama shortened the sentences of 46 federal prisoners who'd been convicted of drug crimes. That's more commutations (the term for shortening a prison sentence by executive action) than he'd issued during his entire presidency up to yesterday — in other words, he just shortened more prison sentences in one day than he had during the previous six and a half years.
This is actually the second time this year that he's done this. In February, the president shortened the sentences of 22 federal prisoners — which was more than the 21 he'd shortened before that.
The White House is hitting the gas on granting pardons and commutations
The president has broad power to pardon people for past federal crimes (after they've served their sentences), or to shorten the sentences of people in federal prison — otherwise known as a commutation. But in the first years of the Obama administration, the president was incredibly stingy with this power. Before December 2013, only one request for a shorter sentence was approved — and 5,000 were rejected. Since the president was pushing for reductions in some federal sentences — by making sentences for crack cocaine more equal to sentences for powder cocaine, for example — it didn't make sense that he wasn't using the one unilateral power he had to get people out of prison sooner.
It turns out that this was largely the fault of the US pardon attorney, who was a holdover from the Bush administration and was very reluctant to send any requests for pardons or commutations to the president at all. In 2012, a ProPublica investigation reported that the pardon attorney had actually misrepresented a case to the White House to make the prisoner look less sympathetic.
In early 2014, the White House and the Department of Justice did a 180 on pardons and commutations. They explicitly asked drug prisoners whose sentences were longer than what they'd get under current law to apply for commutations. They asked lawyers to volunteer to help them. And they replaced the pardon attorney.
But this isn't anywhere near the hundreds or thousands of sentences the White House was hoping to shorten as of 2014
When the White House rolled out that initiative, they boldly predicted that Obama could end up granting hundreds, or even thousands, of applications by the end of his term. As much as they've accelerated, they're still nowhere near on pace for that yet — as of Monday, Obama has shortened the sentences of 90 prisoners over his entire term.
So what's the holdup? There are a few factors. One is that the initiative to provide volunteer lawyers, Clemency Project 2014, has taken a long time to get prisoners' cases in to the federal government for review. For one thing, many of the volunteers weren't experts in federal criminal law, so the learning curve was steep — and the training they've received has gotten mixed reviews. For another, in many cases defenders had to wait for individual prosecutors to send on a prisoner's case files — eventually the federal government had to create another way for lawyers to get the files in a timely fashion. The Department of Justice has even begged the lawyers to get them more applications — even saying they don't have to be perfect, which is somewhat confusing given that many requests for shorter sentences are still being denied.
Even though the Clemency Project itself hasn't been efficient, the Obama administration has still gotten 6,600 applications over the past year. And it doesn't exactly have the staff to go through all of them. According to the New York Times, the Office of the Pardon Attorney has asked lawyers from other DOJ divisions to give a day of their time each week to help process applications.
So even though the president has a lot of constitutional power to pardon ex-offenders and shorten prison sentences, this initiative has illustrated just how limited presidential power can be without support from Congress. The criminal justice bills that have been introduced in both houses of Congress would shorten the sentences of way more than 90 offenders. And even if Congress just appropriated more money to the Office of the Pardon Attorney, the administration would be able to do much more.
Observers are hoping that Monday's announcement is going to be a new normal — with Obama announcing at least a few dozen new commutations every few months from now until the end of his term. But if it's going to reach the hundreds, not to mention the thousands, he's going to need to keep doubling.
CORRECTION: The headline of this post originally said 43 instead of 46. The author is tremendously sorry for her innumeracy.
