When he used his clemency power to keep I. Lewis Libby out of prison, President Bush said a sentence of two and a half years was excessive punishment for lying to federal investigators about conversations with reporters. I agree. But the president’s sudden desire to correct unjust sentences is hard to credit, given how little interest he has shown in this area until now.
In six and a half years, Bush has granted 113 pardons, typically used to clear the records of reformed criminals after they’ve completed their sentences. Counting Libby’s, he has issued only four commutations, which allow people who receive excessive sentences to go free early.
If federal sentences as unfair as Libby’s were handed down that rarely, we would have a criminal justice system in which every defendant had adequate representation, suspects were not penalized for defending their innocence, low-level offenders were never punished more severely than higher-ups with information to trade, and judges were never forced to impose mandatory sentences they considered grossly disproportionate. But given the system we actually have, it’s not hard to find injustices more egregious than the one Bush said compelled him to intervene on Libby’s behalf. The advocacy group Families Against Mandatory Minimums has files full of them.
Consider Weldon Angelos, a 24-year-old Utah record producer with two children who in 2004 was sent to prison for 55 years — a life sentence, in effect — because he owned guns when he sold a police informant two eight-ounce bags of marijuana, thereby triggering mandatory minimum sentencing provisions aimed at violent criminals. When he imposed the sentence, U.S. District Judge Paul Cassell urged Bush to commute it, calling it "unjust, cruel, and even irrational."
A gun also figured in the case of Monica Clyburn, a 38-year-old mother of four who more than a decade ago went with her boyfriend to sell his pistol at a Florida pawnshop. Because he did not have ID, she signed the pawn slip and left her thumb print. Clyburn, who had been convicted of selling three $20 rocks of crack cocaine to an undercover officer several years before, was prohibited from owning firearms, so this pawnshop visit led to a 15-year mandatory minimum sentence she is still serving. "I never even held the gun," she says.
Brian Ison had no gun; he was just in the wrong place (his methamphetamine dealer’s mobile home in Harrodsburg, Ky.) at the wrong time (during a 2001 bust). Witnesses said they thought they had seen Ison help cook meth, but he insisted he was only a customer. Turning down a plea agreement that would have resulted in a two-year sentence, the 19-year-old was convicted of manufacturing and received a sentence similar to those imposed on the two cooks who ran the operation: 11 years, three months.
Alexander Hamilton said the president’s clemency power should provide "easy access to exceptions in favor of unfortunate guilt," without which "justice would wear a countenance too sanguinary and cruel." The future Supreme Court justice James Iredell likewise warned that "inflexible adherence" to the law "might frequently be the cause of very great injustice."
President Bush, who in other areas has been quick to assert broad authority, even when its constitutional basis is questionable, has been strangely reluctant to exercise a power that is indisputably his in the manner the Framers envisioned. So far he has been much stingier with clemency than any of his recent predecessors, except his father.
Bush is averaging 18 acts of clemency a year, compared to 57 for Clinton, 19 for George H.W. Bush, 51 for Reagan, 142 for Carter, 164 for Ford, 168 for Nixon, 237 for Johnson, 192 for Kennedy, 145 for Eisenhower, 264 for Truman and 301 for FDR. With less than 18 months left in his presidency, this is one area where Bush has room to improve and can still leave an admirable legacy.