By Nkechi Taifa, Senior Policy Analyst, Open Society Foundations. [American Constitution Society for Law and Policy (ACS) and the Open Society Foundations will host a forum with experts on the President’s Constitutional Pardon Power on May 10 in 2237 Rayburn House Office Building.]
In 1974, Gerald Ford used his presidential pardon power to create an 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 pe
rcent of the petitions. The review process was a median strategy -- many desired outright amnesty for the lawbreakers while others favored imprisonment.
On balance, the approach by Ford establishing a pardon board allowed for individualized review of each clemency application, with options including approval, community service, or denial. A systematic process of review for this discrete class of cases helped mend a nation divided by conflicting opinions as to the legitimacy of the war and the reasonableness of sanctions for those who morally resisted it.
Fast forward to today: Currently, there is an identifiable class of people serving egregiously lengthy sentences for crack cocaine offenses. All three branches of the U.S. government agree that these sentences are unjust, inconsistent, unfair and biased. Ironically, these people are the very same group whose harsh and discriminatory sentences inspired passage of the 2010 Fair Sentencing Act (FSA), which reduced the 100:1 powder to crack ratio to 18:1. The FSA, however, applies only to new cases occurring after its passage, leaving in place the flawed sentences of those who were already serving time under the old discredited sentencing scheme.
During Supreme Court oral argument yesterday on whether the law that reduced the disparity in crack/powder cocaine sentencing should be applied to those already convicted, Justice Sonia Sotomayor honed in on the discriminatory history that led to the passage of the Fair Sentencing Act. 