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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.

 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.)