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Obama Makes a Few Pardons on Unfair Drug Convictions, But Has Granted Fewer Requests for Clemency Than Any President in the Last Century

Obama pardoned three marijuana offenders and commuted the sentence of one crack offender, but the implications of his actions are not as optimistic as they may sound.

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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.

Steven Wishnia is a New York-based journalist and musician. The author of Exit 25 Utopia and The Cannabis Companion , he has won two New York City Independent Press Association awards for his coverage of housing issues.