BUSH SHOULD GIVE CLEMENCY TO FIX UNFAIR CRACK SENTENCES

It's The Perfect Use Of His Clemency Powers

Crack is back before Congress. Attorney General Michael Mukasey has
come out against a new sentencing policy designed to bring a partial
measure of fairness to the sentencing of federal crack offenders.

Crack is creeping back into the presidential campaign, where there is
great need for leadership on this fundamental issue of race and justice.

More than 20 years ago, Congress told judges to give the same
sentence for dealers responsible for 5 grams of crack cocaine and 500
grams of powder cocaine despite the fact that crack and powder are
pharmacologically the same.

The U.S. Sentencing Commission is the expert body charged with
studying federal sentencing. The commission has repeatedly told
Congress about the race bias and irrationality of the 100-1 quantity
triggers for federal crack versus powder cocaine drug penalties.
Congress has refused to fix this disparity.

Last year, the commission proposed and Congress accepted a modest
adjustment in the sentencing guidelines that prospectively reduces
crack penalties and narrows the quantity-based punishment gap at
points. Bravo.

Administrative concerns often require new rules to be forward-looking
only. In this case, however, the commission tried to correct
punishments that its expert analyses revealed were much too harsh and
affected blacks unfairly. So the commission voted unanimously to
give federal judges the power to apply the new crack rules
retroactively. Bravo again.

The commission's retroactivity vote does not mean automatic release
for the roughly 19,500 current inmates convicted of crack offenses.
Rather, it will permit judges to reduce existing sentences consistent
with the new rules if they think it appropriate in individual cases.

The Justice Department claims that resolving these cases in court
will be too time-consuming and is urging Congress to overrule the
commission on retroactivity.

Barack Obama supports retroactivity; Hillary Clinton does
not.

In a late 2000 interview, President Bill Clinton said "the
disparities are unconscionable between crack and powdered cocaine."
But his attorney general helped kill the commission's 1995 proposal
to eliminate the crack-cocaine disparity.

In 2001, President-elect Bush said he believed that "the
powder-cocaine and the crack-cocaine penalties [should be] the same.
I don't believe we ought to be discriminatory." Yet his Justice
Department not only opposed both of the commission's recent crack
decisions but is seeking legislation preventing the new rules from
applying retroactively in many cases.

If Mr. Bush still believed what he said in 2001, he could deal with
retroactivity in a streamlined fashion by exercising his clemency
power. This would address the workload problem that troubles his
Justice Department.

More importantly, the president would make a dramatic statement about
racial justice and perhaps goad a recalcitrant Congress into fixing
the underlying racial inequity in federal drug penalties.

But any suggestion that presidents make use of their constitutional
clemency power has become deeply suspect. The federal pardon and
clemency power has fallen from grace. Critics believe pardons and
commutations have become partisan tools cynically wielded to benefit
primarily the rich and powerful.

There is, however, another tradition of pardon and clemency:
Presidents over American history have used this constitutional power
to fix and publicly address occasional systematic injustices.

But using the pardon and clemency power to administer retroactive
application of the modest new crack guidelines would only be a
half-step. The need remains for a larger congressional fix.

A systematic use of the clemency power in crack cases would offer a
lesson that it is possible to lead responsibly on issues of race and
criminal justice. Our current president -- or the next president --
could combine that power with the presidential bully pulpit and send
Congress a clear message that it needs to clean up its old mess by
fixing the crack-powder disparity once and for all.

Marc L. Miller is the Ralph W. Bilby Professor at the University of
Arizona James E. Rogers College of Law. Steven L. Chanenson, is a
professor of law at Villanova University School of Law.