Reforming Clemency and Crack Retroactivity

Today Main Justice picked up the story of 15 law professors calling on Congress to investigate the claims that the Office of the Pardon Attorney (OPA) is failing in its duty to give the president sound, impartial advice on commutation applicants.

And over at The Huffington Post, Nkechi Taifa of the Open Society Institute writes in favor of creating a special clemency board to apply the Fair Sentencing Act's reforms retroactively to federal crack cocaine offenders who haven't yet benefited from them:

[T]he fight for fairness and justice in crack cocaine sentencing is not over. The president could bring closure to this injustice through his constitutional executive power of clemency, creating a review board to reevaluate old crack cocaine sentences so they are consistent with the new law.

Past presidents have set up clemency boards to provide justice to large numbers of similarly-situated lawbreakers (for example, draft dodgers). The sky didn't fall, and the world didn't end, and a lot of people got justice because of it. The president has full authority to use a clemency board, no approval of Congress required.  Writes Taifa,

Professor Mark Osler and former prosecutor Matthew Fass in a recent article, highlighted Gerald Ford's 1974 strategic use of the presidential pardon power to impanel an ad hoc executive clemency board to oversee the petitions of 21,000 people convicted of draft-related offenses during the Vietnam War. Within a year, President Ford granted 90 percent of the petitions. On balance, the approach by Ford to establish a pardon board allowed for individualized review of each clemency application, with options including approval, community service, or denial. ...

Similarly, adoption of an individualized review process for pre-FSA cases would not be burdensome or a "get out of jail free card." Cases could simply be recalculated according to the new 18-to-1 ratio, under already existing parameters established by the Sentencing Commission that result in gradual releases in appropriate cases over the course of several decades. The president would be free to use his constitutional pardon power unrestricted by the 18-to-1 ratio should he so choose.

As Taifa notes, an independent clemency board -- located outside the OPA and the Department of Justice -- would be an unbiased, efficient, and transparent way to provide thousands of federal crack offenders with the fairer sentences the FSA provides.  The discriminatory 100-to-one crack-powder ratio was built -- and torn down -- on the backs of people who, unless Congress or the president acts, will never get the benefit of the FSA.  That's not right, and President Obama should consider setting up a clemency board to give them the justice they have so far been denied.