Federal prison inmates serving time for low-level cocaine convictions who would not be in prison under the current sentencing guidelines should be set free. But they should be released through the same federal courts that sentenced them rather than through an executive order by the president. Congress should pass legislation to make that happen rather than leave it to the White House to work around the problem.
In his State of the Union address last month, President Barack Obama vowed to use executive power where possible to circumvent gridlock in Congress. Now the Justice Department is reaching out to defense attorneys around the country, encouraging them to have low-level drug offenders apply for clemency. According to federal data, 30,000 inmates were serving crack cocaine sentences at the end of 2011. Between 9,000 and 12,000 of those inmates could be eligible for some sort of sentence reduction if they were convicted under current sentencing guidelines.
This is the sad legacy of sentencing guidelines where crack cocaine offenders received punishments that were 100 times harsher than those given to powder cocaine offenders. A 2010 law, the Fair Sentencing Act, brought the guidelines to 18 times harsher. But the act was not retroactive to provide relief for those who were charged but not prosecuted before the act became law.
Obama reignited debate about crack cocaine sentences in December when he commuted the sentences of eight federal inmates, each of whom had been incarcerated for 16 years or more. Pending legislation would allow prisoners to seek shorter sentences in light of the new guidelines. The bill's passage is uncertain, but congressional action is the best hope for a broad solution that would help the most people — not just those lucky enough to have their sentences commuted.
Obama is right to direct the Justice Department to find ways to reduce the unfair sentences of low-level drug prisoners. But executive action alone falls far short of what the situation demands. Tens of thousands of clemency applications would overwhelm an already heavily burdened pardons office. And the application process has the potential to fail many, as presidential pardons and commutations are issued sparingly and often tied to political calculations.
Congress should pass the legislation that would provide fairer treatment for inmates who received sentences under the old, unfair guidelines for crack cocaine offenses. But if legislators fall short, the president has no choice but to work around them. Doing nothing is the biggest injustice of all.