In
my October Reason cover story about Barack Obama’s
drug policies, I noted
Clarence Aaron as an example of drug offenders whose sentences the
president should commute if he really believes what he used to say
about excessively long prison terms. Aaron, now 43, was arrested
when he was a student at Southern University in Baton Rouge for
connecting a cocaine supplier who was the brother of a classmate to
a dealer he knew from high school. Although it was his first
offense and he never made, transported, bought, or sold any drugs,
he was sentenced to three consecutive life terms. A new
investigative article by ProPublica’s Dafna Linzer, based
on interviews and internal documents, suggests that Aaron, who
has been a model prisoner for more than 18 years, probably would be
a free man today if the Justice Department’s pardon attorney,
Ronald Rodgers, had not misrepresented important aspects of his
petition.

During the final year of George W. Bush’s second term, Linzer

reports, “lawyers began searching through denial
recommendations for promising cases and found Aaron.” The White
House asked the Office of the Pardon Attorney to take another look.
At this point several new aspects of the case weighed in Aaron’s
favor, including favorable prison reports and a new affidavit in
which he expressed remorse for his role in the cocaine deal. Most
crucially, both the judge who sentenced him, Charles Butler Jr.,
and the U.S. attorney for the district in which was tried, Deborah
J. Rhodes, now supported commuting Aaron’s sentence. Butler said
Aaron “should be granted relief immediately,” while Rhodes
recommended that he be released in 2014. Yet Rodgers simply
resubmitted his office’s 2004 denial recommendation. In an email
message to Associate White House Counsel Kenneth Lee, Rodgers said
only that Butler was not opposed to a commutation and claimed that
Rhodes, while supporting commutation “at some point,” believed
Aaron’s petition was “about 10 years premature.” Linzer relates
Lee’s reaction upon hearing what Butler and Rhodes actually had
said:

Kenneth Lee, the lawyer who shepherded Aaron’s case on behalf of
the White House, was aghast when ProPublica provided him with
original statements from the judge and prosecutor to compare with
Rodgers’s summary. Had he read the statements at the time, Lee
said, he would have urged Bush to commute Aaron’s sentence.

“This case was such a close call,” Lee said. “We had
been asking the pardons office to reconsider it all year. We
made clear we were interested in this case.”

Both Rogers and the Justice Department declined Linzer’s
requests to comment on the case. Linzer, who previously has shown
that black offenders such as Aaron are
much less likely to receive pardons (which clear the records of
people who have completed their sentences) than whites, presents
the case as another example of dysfunction in the Office of the
Pardon Attorney, on which Bush and Obama both have depended to
review clemency petitions and recommend responses. Citing “a former
pardon office lawyer,” she suggests the office has responded to
commutation petition backlogs, which are largely a product of
increasingly draconian prison sentences, with cursory reviews and
mass denial recommendations. In other words, at the very time when
presidential mercy is most needed, it is less likely to be shown,
and there is little rhyme or reason to which applicants are lucky
enough to receive it.

But a president who relies on overwhelmed or lackadaisical
underlings to make his clemency decisions for him can hardly blame
them for his failure to use this power as a remedy for obvious
injustices like Clarence Aaron’s three life sentences for a
nonviolent first offense. Gregory Craig, Obama’s former counsel,
recommends that petitions instead be reviewed by a bipartisan panel
outside the Justice Department, a change Obama could make whenever
he wants. While Bush’s commutation record was pitiful (or
maybe that should be “pitiless”), Obama’s so far is worse, as
Linzer notes:

Obama has rejected nearly 3,800 commutation requests from
prisoners. He has approved one. Bush commuted the sentences of 11
people, turning down nearly 7,500 applicants [over two
terms]….

Under Ronald Reagan and Bill Clinton, both two-term presidents,
one applicant in 100 was successful. Under Bush, approvals fell to
barely better than one in 1,000. So far, Obama has commuted the
sentences of fewer than one in 5,000. The only person freed by
Obama had support from one of the president’s closest
congressional allies, Illinois Democratic Sen. Dick
Durbin. 

That applicant,
Eugenia Jennings, was surely deserving, but so are Clarence
Aaron and many, many others. Obama’s reluctance to commute
sentences is especially shameful in light of his repeated objections
to senselessly harsh drug penalties.

Gary Johnson, the Libertarian candidate for president, has

said he would “pardon nonviolent drug offenders.” Ron Paul, the
last remaining challenger to Mitt Romney for the Republican
nomination, has made a similar
commitment.

More on the pardon power
here.