Today President Obama commuted the sentences of eight people all serving long crack sentences that might well be illegal if given today. Charlie Savage reports: “It was the first time retroactive relief was provided to a group of inmates who most likely would have received significantly shorter terms if they had been sentenced under current drug laws, sentencing rules and charging policies.”
This is exactly the kind of thing I had in mind in my NYT Debate column about retroactivity a few months ago. Of course, eight is not very many. Better if it were eighty, or eight hundred, or eight thousand. Mark Knoller tweeted that this “brings Pres Obama’s number of pardons to 52, fewer than any US president since Garfield, who granted none.”
Also: Now that the full list of names is out, I see that one pardon recipient is Mr. Ezell Gilbert. Mr. Gilbert, Savage notes, will “be released immediately because he was recently out of prison for a time, without problems, during an appeal.” And what an appeal it was. Two years ago, Gilbert’s case divided the Eleventh Circuit in a series of opinions. First, an Eleventh Circuit panel concluded that Gilbert’s sentence could be corrected through habeas even though it had long been final, prompting Doug Berman to write that the court had “given[n] the ‘Great Writ’ some notable life.” The panel also ordered Gilbert to be immediately released.
The Eleventh Circuit met en banc, and in May 2011 it reversed the panel 8-3 and ordered Gilbert back into prison. Gilbert unsuccessfully petitioned the Supreme Court for cert. If only the President had reached this decision two and a half years ago. At least he’ll be out for Christmas.
UPDATE: A reader points out that these eight offenders have actually received what is formally called a “commutation” rather than a pardon. (Here’s Adam Liptak on the difference.) I called them pardons originally under the theory that they are pardons in the constitutional sense, but the Constitution refers to both pardons and reprieves, and perhaps a commutation is a reprieve; I do not know. In any event, the White House has also announced 13 pardons.