PARDON ME, PLEASE

Before Turning Out The Lights, Mr. President

In a few weeks Bill Clinton will walk out the door of the White House.

He will leave behind a legacy for historians to debate.

Part of his legacy will be the doubling of the number of people
incarcerated in federal prisons, part of America's climb to the summit of
the world's incarcerators. However, he still has time to shape his legacy
in this regard.

The sentence in the Constitution that names him commander in chief also
gives him the power to reprieve federal prisoners.

Since Clinton entered the White House the number of federal prisoners
doubled from 73,000 to 146,000, about 86,000 of whom are drug offenders.
Since 1995, the Clinton administration has sent more than 100,000 drug
offenders to federal prison.

Twenty-eight percent of those imprisoned, according to a 1994 Department of
Justice study, are low-level drug offenders with no prior offense, no
violence on their records and no involvement in sophisticated criminal
activity.

That is about 24,000 such prisoners today--equal to the entire federal
prison population in 1980 when President Reagan was elected.

Recently, more than 650 leaders of America's clergy, gathered as the
Coalition for Jubilee Clemency--bishops, church presidents, heads of
congregations--wrote to President Clinton asking him to free low-level,
non-violent federal drug prisoners.

Among Christians, 2000 is a Jubilee year, in which debts are forgiven and
prisoners are set free. As part of the Jubilee year, Pope John Paul II has
called upon governments for "a gesture of clemency" to the imprisoned.

To find some of those drug offenders who deserve to be released, Clinton
should appeal to the more than 600 federal trial judges, asking each to
name at least one defendant whom he or she was required by mandatory
sentencing laws to sentence to a term he or she thought was unjust--the
kinds of cases that the judges lost sleep over.

These low-level, non-violent drug offenders are people such as Kemba Smith,
a sheltered college girl who was ensnared in a crack dealer's web of charm
and abuse.

She helped him buy a car, rent an apartment, hide out. She got a 24-year
sentence.

Another example is Dorothy Gaines, a widow, mother of three and grandmother
of two, whose boyfriend was a recovering crack addict.

He relapsed, began dealing, and turned on her when caught.

His fellow informants--who all got reduced sentences for their
testimony--said she once delivered three packets of crack from the
ringleader to his street sellers. There was no other evidence--no money, no
drugs, no drug paraphernalia, no beeper or cell phone, no controlled
deliveries, no wiretaps.

She got a 19-year sentence.

Congress created mandatory minimum drug sentences in 1986 during the
violence and fear of the crack epidemic and when each party was using the
war on drugs to fight for control of the Congress. Congress blundered by
setting too low the quantities of drugs, which trigger mandatory sentences
intended for high-level dealers.

These laws have been applied mostly to low-level offenders and
overwhelmingly to black or Hispanic suspects. Unjustly, many federal drug
prisoners are serving kingpin-level sentences, even though they were
nowhere near kingpins in the drug trade. These long sentences for low-level
offenders have been called "manifestly unjust" by federal judicial councils.

It was to correct these types of injustices that the framers of the
Constitution gave the reprieve and pardon power to the president.

Congress made a partial fix in 1994. A judge could depart from these
mandatory sentences in very limited cases through a "safety valve"--but
Congress did not make the law retroactive. There are more than 350
prisoners who would now be free if they had been sentenced after Sept. 13,
1994. Surely they qualify for a presidential commutation of sentence.