ROBIN YOUNG, HOST:
It's HERE AND NOW.
Attorney General Eric Holder is encouraging defense attorneys to compile lists of their clients incarcerated for low-level, non-violent drug offenses so that they can petition for executive clemency. The president has made known his objection to the harsh penalties for non-violent drug crimes like possession. Here he is speaking to CNN's Jack Tapper on penalties for casual marijuana users.
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PRESIDENT BARACK OBAMA: My concern is when you end up having very heavy criminal penalties for individual users that have been applied unevenly and in some cases with a racial disparity. I think that is a problem.
YOUNG: The president speaking to Jake Tapper. And we've reported here on that disparity not just between crack cocaine and powder cocaine users, but marijuana users. Blacks and Hispanics three and a half times more likely to be arrested for marijuana crimes than whites and therefore more likely to have criminal records that prevent them from getting jobs or federal loans. And of course two states have now legalized marijuana. So what affect might this shout out to defense attorneys have?
Sam Morison once worked in the Justice Department's Office of the Pardon Attorney. He's now in private practice specializing in petitions for executive clemency. And Sam, the president made headlines in December when he granted eight commutations. One was for Clarence Aaron, who was given three life sentences and spent 20 years on jail not for selling or possessing drugs, but for receiving money for introducing two friends who sold it.
He was charged with conspiracy. Three lifetimes, though, it seemed unfair to a lot of people. You were on the team reviewing his petition. Would you say his case was a tipping point?
SAM MORISON: I think it was in the sense that it got an unusual amount of press coverage, and frankly it was somewhat scandalous. I was the staff attorney, and I had been tasked to take another look at the case, to re-evaluate it, because it had been pending for many years. So I re-contacted the sentencing judge and the U.S. attorney's office that prosecuted the case and said: Given the passage of time, has your position softened? And it turned out that they both supported commutation for Clarence Aaron. This was in 2008.
And I found out later the person who serves as the gatekeeper for pardons in the Justice Department misled the White House. What he told them led them to believe that the U.S. attorney and the judge were not in favor of commutation when in fact they were in favor of commutation. And so President Bush, who was clearly interested in granting the case, deny it, but he denied it in reliance on information that turned out to be false and misleading.
YOUNG: In 2010, Congress passed the Fair Sentencing Act and repealed some of the mandatory sentences that were instated in the 1980s, when there was a crackdown on these offenses. But we understand the problem with the 2010 law is that it doesn't apply retroactively, which is why some of these people seen as unfairly sentenced might need pardon now.
MORISON: That's right. There are, in fact, something on the order of 8,000 people, maybe even more, who are currently in federal prison who would benefit from retroactivity if the law was made retroactive. The other point I'd make, though, is that I think the problem runs even deeper than that. It's harsh sentences in general, because in fact Clarence Aaron would not have benefited from retroactivity. There are so many people involved that it really ultimately needs a systematic fix, and the systematic fix would be for Congress to rewrite the laws.
YOUNG: Quick question: Difference between clemency and a pardon?
MORISON: Well, clemency is really a generic term that refers to all kinds of executive clemency. Commutation or reduction of sentence is what somebody asks for if they're in prison and they're trying to get their sentence shortened. Pardons technically means somebody who's already out of prison typically and they want their civil rights restored, you know, things like voting, serving on a jury. In recent years there have been a host of licensing restrictions and professional restrictions that are imposed on people that have a felony conviction.
YOUNG: I'm sure it occurs to some defense attorneys, and I'm wondering if it occurred to you, that as we heard the president talking recently in an interview in The New Yorker and elsewhere about his own usage of marijuana and about his feelings of the, you know, the impact of marijuana, bad, something he wouldn't want his children to do but maybe not more dangerous than alcohol, how could a sitting president say things like that while people are sitting in jail for doing the thing that he's talking about?
MORISON: Well, I mean that's a really good question, and that's something I think the president should think about in terms of his own legacy. What he has to acknowledge is that the founders wisely put in a provision of the Constitution
to deal with precisely that problem, and it's been used repeatedly throughout American history. And it's only, you know, we just have very short historical memories. It's only in recent years where it's become sort of the received wisdom that it's too politically risky to - for the president to use his clemency power.
When the president grants commutation or a pardon to relieve people of the consequences of harsh criminal laws, that's not an exception to the criminal justice system. That's part of the criminal justice system.
YOUNG: There's also historical precedent for pardoning these kinds of offenders. John F. Kennedy pardoned first-time offenders incarcerated under the 1956 Narcotics Control Act.
MORISON: That's exactly right. And it's an interesting parallel. When Kennedy came into office, there were thousands of people serving mandatory minimum sentence under the laws that existed at the time, and they proactively solicited the wardens of the federal prisons and said, you know, there's people out there that have been there long enough and need to go home. And go out there and find us good cases. And over the course of the Kennedy and Johnson administrations, hundreds of these cases were commuted, and that eventually led Congress to change the law.
So in 1970, all but one mandatory minimum sentence were repealed. So in fact, the president can be a leader in this field. And he can, by aggressively using his pardon power to highlight a problem in the system, it signals to Congress where they need to change the laws. The president has his role to play under the Constitution and Congress has theirs. And this is one way that the president can be a leader.
YOUNG: Sam, what do you say to people who bristle at this notion that people who did anything involving drugs should get a commutation?
MORISON: It's certainly true that there are a few people in federal prison, a relatively small number, that are bad folks who've done a lot of bad things, sometimes it involves violence. But the truth of the matter is most of them are a whole lot like you and me. And when you get to know their stories and when you look people in the face and when you talk to them, it's much harder to maintain that attitude.
YOUNG: Sam Morison, he formerly worked in the Department of Justice's pardons office, now in private practice specializing in executive pardon. Sam, thank you.
MORISON: You're welcome. Thanks for having me.
YOUNG: Well, so far President Obama has issued only 52 pardons and commuted only nine sentences. That's among the lowest historically. But in December, Eric Holder told critics: Just wait. Your thoughts on commuting more non-violent drug sentences. Let us hear them at hereandnow.org. This is HERE AND NOW.
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