Drug Policy Alliance Executive Director Ethan Nadelmann hopes, against experience, that President Obama will say something about "the issue of mass incarceration in America" during tonight's State of the Union address. After all, he has made noises about criminal justice reform in the past, he supported shrinking the irrational sentencing gap between crack and cocaine powder (a reform that was favored by virtually every member of Congress), and… Well, that's pretty much it, although Nadelmann notes some comments in a recent Time interview that recall concerns Obama expressed as a presidential candidate in 2007 about America's overachievement in the field of locking people up:
I don't think it's any secret that we have one of the two or three highest incarceration rates in the world, per capita. I tend to be pretty conservative, pretty law and order, when it comes to violent crime. My attitude is, is that when you rape, murder, assault somebody, that you've made a choice; the society has every right to not only make sure you pay for that crime, but in some cases to disable you from continuing to engage in violent behavior. But there's a big chunk of that prison population, a great huge chunk of our criminal justice system that is involved in nonviolent crimes. And it is having a disabling effect on communities. Obviously, inner city communities are most obvious, but when you go into rural communities, you see a similar impact. You have entire populations that are rendered incapable of getting a legitimate job because of a prison record. And it gobbles up a huge amount of resources. If you look at state budgets, part of the reason that tuition has been rising in public universities across the country is because more and more resources were going into paying for prisons, and that left less money to provide to colleges and universities. But this is a complicated problem. One of the incredible transformations in this society that precedes me, but has continued through my presidency, even continued through the biggest economic downturn since the Great Depression, is this decline in violent crime. And that's something that we want to continue. And so I think we have to figure out what are we doing right to make sure that that downward trend in violence continues, but also are there millions of lives out there that are being destroyed or distorted because we haven't fully thought through our process.
I hope Nadelmann is right that Obama finally will follow through on these fine words about unjust punishment and wasted human potential. The main reason I am skeptical, aside from his almost complete failure to do so thus far, is this: Even though Obama declares that "millions of lives…are being destroyed or distorted" by an excessively punitive criminal justice system, he has used his clemency power to mitigate that destruction less often than any president in American history, with the exceptions of George Washington in his first term (when there weren't many applications lying around) and two presidents who died soon after taking office. This amazingly stingy clemency record, which includes a grand total of one commutation granted out of 6,742 petitions, would be disgraceful for any president. It is especially unconscionable for a reputedly progressive and enlightened man who has repeatedly complained that too many people—"a great huge chunk of our criminal justice system," as he puts it in the Time interview—are going to prison for too long. Unlike many of the powers Obama has tried to claim, from waging war without congressional authorization to executing suspected terrorists without due process, clemency is completely within his constitutional authority. He has plenary power to shorten the sentences of federal inmates—many of whom, by his own account, either do not belong in prison or should have been released long ago. His refusal to do so, even now that he has been safely re-elected, tells me he either lacks the courage of his convictions or has no real convictions on this subject but likes to pretend he does.
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