Presidential Clemencies and the Role of Punishment

On November 22nd, President Obama reduced the prison sentences of 79 drug offenders. This is the latest in a burst of clemencies he has awarded during his last year in office. Traditionally, there is a burst of clemencies towards the end of a president’s term, when there are fewer political hurdles and relationships to maintain, but this week’s sentence reductions bring Obama past the 1,000 clemency mark – more than the past 11 presidents put together.

While granting clemency can be controversial – it is, in effect, undoing the work of our justice system – when President Obama put his administration to the task of granting commutations of inmates who met his search criteria, he received criticism from advocates for shorter sentences and clemency themselves. The (lack of) speed of the cogs of the bureaucracy seemed to be more troubling than the idea of granting clemency to such a large number of people. Since the outcry to speed up, Obama and the Justice Department have commuted over 800 sentences.

If clemencies are what you’re after, being quick is important, for president-elect Donald Trump hass expressed ideas about crime and punishment that are not in line with those who have been moved by concern over the mass incarceration of the American people. Trump has emphasized the problems facing the American public in terms of the danger of criminals, and criticized President Obama’s initiative to grant clemency to nonviolent drug offenders, saying,“Some of these people are bad dudes, and these are people who are out, they’re walking the streets. Sleep tight, folks.”

The concern over the number of adult citizens that are currently incarcerated has been gaining more attention in recent years. Since 1980, the federal prison population has gone from just under 25,000 to over 195,000. Amnesty International treats the state of our prisons as a human rights issue, as the US population accounts for just 5% of the world’s people, but 22% of the world’s incarceration population. The statistics become more worrying when you notice the demographic trends that our justice system develops. One in three black men will go to jail or prison in their lifetime if our current conditions continue.

In 2012 Michelle Alexander published “The New Jim Crow”, a best-selling book articulating the systematic bias in the regulations in our legal system that leads to a great disparity in the ethnic make-up of the citizens in our prisons. Black Americans are three to four times more likely to be in federal drug crimes, even though they are no more likely to use or sell drugs. That raises to nine times more likely to be in state prison for drug crimes.

The issues with our justice system are thus far-reaching. There is a problem from the perspective of the brute number of Americans behind bars, and more complex worries about the demographic representation of these inmates. The process of hindering judge’s ability to use their judgment in sentencing by enforcing mandatory minimums exacerbates these concerns.

While reforms have been passed at state levels in recent years, at the federal level, progress has been slow. In 2015, the Sentencing Reform and Corrections Act of 2015 was proposed and received bipartisan support, but has since floundered this year. The tensions between being tough on crime and recognizing the incarceration crisis facing the US run high, and the pressure to protect the legal interests of corporations trumped the bipartisan support that made the bill look promising early on.

What could justify putting such a large portion of our citizenry behind bars? Frequently when we discuss the sentencing decisions that make it to national debate, it is because there are comparisons that make no sense. How could a convicted rapist receive a judgment on the basis that, according to the sentencing judge, “A prison sentence would have a severe impact on him,” when so many others are sent to prison according to strict mandatory minimums, regardless of how it will impact them? Some critics of this sentencing, and other “light” sentences granted to men who are convicted of sexual assault, cry out because of the message it conveys – it fails to deter, and speaks about the values of our society.

With so many ideas surrounding the injustice in our justice system, it bears to point out the underlying murkiness of what prison sentencing is meant to convey: what justifies the punishment of sending someone to prison?

The purpose of punishment more generally can be, in principle, separated from the purpose (or actual role) of prisons. To identify why we punish one another, we can think about the relationships that have been damaged and are in need of mending. How can we go forward together when a member of the relationship has harmed the other? If someone has lied, or broken a promise, or failed to live up to warranted expectations in some further way, we can conceive of punishment as justified on a few grounds.

First, it could allow the relationship to be mended because in accepting the punishment, the wrongdoer expresses an acknowledgment of the inappropriateness of her behavior. In such circumstances, we would be thinking of punishment as a way of mending a relationship. The idea here is that “punishment helps us move forward together”.

Second, it could be that the perpetrator of the wrong has earned the punishment, and so it is deserved. Punishment, so conceived, is a way of restoring balance, or getting one’s just desserts. It may or may not help the relationship, but the idea is that “wrong-doers deserve punishment.”

Third, it could be that punishing those that do wrong is a practice that is effective at reducing the amount of wrongs performed: having a system of punishments in place makes for fewer harms perpetrated in the first place. The purpose of punishment here is because of the results it brings about better outcomes.

When we send someone to prison, there is a mix of under-articulated purposes at play. We say at times that an inmate is paying his “debt to society,” or make reference to harsh sentences being a deterrent to other would-be criminals. Idealists may make some claim to prisons being places where reformations and rehabilitations can take place, though with overcrowding and corruption in our current system, this is optimistic, indeed. These notions blend the justifications for punishment outside of the justice system mentioned above.

The impact of being incarcerated is far-reaching, with social stigma, difficulty finding employment, and disenfranchisement affecting many. Because these impacts are very real, and severe, the murkiness of the justification for incarceration is a serious issue. When we face the problems of systemic racial disparities in the prison population, or the leniency for some crimes while mandatory sentencing is in place for others, a mishmash of justifications allows some reasoning to support harsh sentencing in one arena while another reasoning supports leniency in another.

In the face of all of this, it is important to note that while President Obama has granted more clemencies than the past 11 presidents combined, this amounts to just over 1,000 individuals. For perspective, his initiative focuses on incarcerated Americans who are non-violent, low-level offenders without significant ties to criminal organizations, gangs, or cartels, and those who have served at least ten years already. This resulted in over 10,500 commutation applications in May of this year.