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 TRUMP CAN’T UNRING THE CLEMENCY BELL

There is a lot a new President Trump can do on the afternoon of January 20, 2017, to unwind President Obama’s legacy. Because Obama tended, in the last years of his presidency, to rely on governance by executive decree rather than bipartisan legislating, Trump can cancel with a stroke of the same pen that Obama used to issue his diktats.

For example, Trump may revoke limits on keeping juveniles in federal solitary confinement. He may repeal Obama’s order to “ban the box” on federal employment applications that identifies those with criminal records, a barrier for former offenders to re-enter the work force. Trump’s attorney general (Rudy Giuliani has been mentioned as a contender) could reverse the Obama-era instruction to prosecutors to charge fewer low-level drug crimes. Yesterday, share prices for CCA and Geo Group – two private prison operators – jumped 43% and 24% respectively on hopes a Trump Department of Justice would reverse plans to stop using for-profit prisons.

The Marshall Project darkly predicted yesterday that “Trump’s victory may be fatal to the unusually bipartisan campaign to reduce prison sentences, invest in rehabilitation, and otherwise render the federal justice system more humane and effective. The Republican Party platform adopted at the July convention nods to red states that have reduced prison populations and calls for “mens rea” legislation, which would oblige prosecutors to prove a defendant intended to break the law.”

But, while the focus yesterday shifted from Obama’s continuing clemency plans for drug offenders to whether he might pardon Secretary Clinton – speculation fueled by the press rather than by either the Trump or Obama camps – the plain fact is that the one executive action that a President Trump cannot undo is Obama’s use of his pardon or clemency power.

The press Obama has gotten thus far for his clemency program has been generally favorable, simply because generalized grumping that he is releasing hardened criminals into America’s communities is not as engaging an argument as are the many individualized stories of people who have served lengthy sentences for nonviolent offenses committed as indiscreet youths. Reason.com, a libertarian publication that is hardly a friend to Obama’s policies, has written glowingly about commutation, noting this week in a piece about a recent clemency grant that Obama had corrected the injustice that “the Fair Sentencing Act did not apply retroactively, meaning that thousands of crack offenders continue to serve sentences that pretty much everyone now agrees are too long.”

We already believed that Obama would continue his record-setting commutation program between now and the end of his term. With Trump’s election, the media are widely speculating that Obama has lost any chance to secure a legacy that cannot be undone by a Trump presidency and a Republican congress. CNN today called Tuesday’s results Obama’s “nightmare.” That being the case, the President perhaps recognizes that there is no “down side” to accelerating commutations over the coming weeks. Indeed, commutations are about all he can still do that will remain bulletproof when a Trump Administration takes over.  Clemency may be the most melodious swan song the incumbent can hope for.

To be sure, the election has torpedoed Obama’s attempts to reshape the federal courts. Currently, there are 52 Obama nominees to the federal bench waiting for action by the Senate — some have waited for nearly two years — and the Republican sweep last Tuesday spells the end for their hopes of making it onto the bench.

Of course, Obama Supreme Court pick Merrick Garland, whose nomination to take the seat of the late Justice Antonin Scalia has been held by the Senate since last March, can forget moving up the hill from his current office at the U.S. Court of Appeals for the D.C. Circuit. But those other lower court nominees are unlikely to be confirmed, let alone get a hearing, before Obama leaves office.

“Traditionally most Democrats and Republicans have always agreed that the next president should have the opportunity to fill those seats,” Vincent Eng of The VENG Group, who advises nominees, told the New York Law Journal yesterday. There are 95 vacant seats on the federal courts: 13 on the appeals courts, 81 on the district courts, and one on the Supreme Court. Of those, 38 are considered “emergencies” by the judiciary, given the size of their caseloads.

Finally (and curiously enough), the drumbeat may be resuming for Congressional action during the lame-duck session starting next week, on the Sentencing Reform and Corrections Act of 2015. To be sure, what seemed like bipartisan enthusiasm for sentencing reform fizzled this year in the face of pre-election anxieties about looking soft on crime. But conservative circles, including The Washington Examiner, are suggesting that “with the end of a contentious election and the lame-duck session just a week away, there remains an opportunity for the 114th Congress to leave a meaningful mark on history, specifically by passing significant criminal-justice reform.”

The Examiner argued that “Congress has the opportunity to make modest reforms that have been proven to work, that uphold American traditions and values and that are supported by all corners of the conservative movement. It’s time for the 114th Congress to mark its legacy, reassert its equal power to the presidency and to make Congress great, and maybe even relevant, again.”

Law and order trumps reform, The Marshall Project (Nov. 9, 2016)

Commuted Sentence Shows Injustice of Crack Penalties and ‘Three Strikes’ Provision, Reason.com (Nov. 7, 2016)

Trump Victory Is Bad News for Obama Court Nominees, New York Law Journal, (Nov. 10, 2016)

Make Congress great (or at least relevant) again with criminal justice reform, Washington Examiner (Nov. 9, 2016)