More on executive clemency

Sandy Levinson

The New York Times has an excellent editorial today complaining about President Obama's extraordinarily sparing use of his constitutional power to grant pardons or, just as importantly, commutations of overly-long sentences.  As he prepares to address the country on the 50th anniversary of Martin Luther King's (and John Lewis's....) speeches at the March on Washington, Obama could do much worse than offer some reflections on the costs to a society of adopting often vindictive retribution over a belief in the possibilities of redemption with regard to those convicted of crime. 

Again, I suggest he take a leaf from Warren G. Harding and suggest that perhaps it's time to commute (not pardon) the 20-year sentence of John Walker Lindh, who was railroaded into a guilty plea by the altogether credible threat that the Bush Administration would seek the death penalty.  The DOJ fired a whistleblower who noted the lack of basic rights accorded Lindh after he was in the hands of American authorities.  He doesn't have to invite Lindh for a chat at the White House as Harding did with Debs.  And, if he doesn't want to pay the political cost of exhibiting some mercy toward Lindh, then, s suggested in my earlier postings, there are surely thousands of people imprisoned for drug offenses who would be better off were they back with the families.  Not to mention that it would save the US a whole lot of money.  And, while he's at it, President Obama could override the Bureau of Prison's vindictive refusal to allow Lynne Stewart, who apparently is dying of cancer, to spend her last days or months outside of prison. 

I truly believe that this seeming indifference toward people he could in fact help with the stoke of a pen is the single most unattractive aspect of the President's persona. 

[UPDATE:  As the result of a conversation with Akhil Reed Amar, I should make it absolutely clear that I do not genuinely analogize Debs and Lindh.  Debs was a thoroughly admirable figure in our history, and even if one disagrees with his opposition to World War I (a subject about which I have indicated my deep ambivalence in other postings), it is still outrageous that he was sent to prison for 10 years for exercising the freedom of speech that should have been guaranteed (and certainly would be protected today) by the First Amendment.  There is nothing admirable about the conduct for which Lindh is being imprisoned.  That being said, there is a remarkable article on Lindh that appeared in Esquire magazine in 2006 and suggests that he may in fact be a more complex person than "The American Taliban" that quickly became his label.  The reason to pardon Debs, for which Harding deserves honor, was to rectify a constitutional injustice.  He never should have been in prison in the first place, and he remained in prison because of Woodrow Wilson's vindictiveness.  Lindh raises quite different questions about the meaning and occasions for the display of mercy, though I will continue to point out that there are certainly injustices that surround his interrogation and the pressure brought to bear on him to plead guilty as a way of avoiding a quite possible death penalty.  All of this being said, I certainly do not expect Obama, or probably any president, to display any mercy toward Lindh, who will, after all, gain his liberty in approximately eight years and therefore make the issue moot.  Lynne Stewart is a different case.  What exactly is the national interest in making her die a miserable death in a federal prison?.  Will that serve as a deterrent to future miscreants? 

And then there a host of unknown schnooks.  Consider Edward Young, the subject of a powerful column by Nicholas Kristof in the NY TImes.  He was sentenced (mandatorily) to fifteen years in a federal prison for possessing seven shotgun shells he had gotten when helping a neighbor clear out her home after the death of her husband, a hunter.  Needless to say, possession of the shells violates the "felon-in-possession" statute.  A federal prosecutor insisted on bringing the prosecution, taking no note at all of the fact that Young has seemingly mended his ways since leaving prison in 1996.  . So let Obama's first display of genuine mercy be in that case, which would presumably appeal to a very different constituency than anyone who actually cares about Stewart or, even more so, Lindh.  The real point is that he demonstrate that there is something other than icewater that courses through his veins when presented with examples of the injustice that is part of the American system, as his own attorney general, presumably with White House clearance, pointed out.  Let him spark a "national conversation" by asking if Edward Young is really a menace to the country or, for that matter, whether Martha Stewart should be denied the right to possess a firearm with which she might defend herself against someone who invades her home--declared by the Supreme Court a "fundamental right" in Heller and thus protected by the Second Amendment--because she had the very bad judgment to lie to an FBI agent investigating a case of insider trading.  . 
Posted 11:45 AM by Sandy Levinson [link]