The dialogue between Supreme Court justices and the Obama administration continues. During oral argument Tuesday in Dillon v. United States, Justice Anthony Kennedy pursued a line of questions that would be hard to interpret as other than critical of Obama administration policy (and the policy of previous administrations too) on commutations and pardons.
The case asks whether federal sentencing judges can reduce the prison terms of defendants like Percy Dillon by an amount greater than what the U.S. Sentencing Commission called for when it reduced the sentences for certain crack cocaine offenders in 2007. The justices were struggling with whether reducing his sentence would be a resentencing, a modification of the first sentence, or even something akin to a commutation.
In the background was information about Dillon himself, who turned out to be a model prisoner who developed African-American studies programs in prison and other outreach efforts to help fellow inmates and at-risk young people choose a path other than crime. That apparently led Kennedy to launch this dialogue with Leondra Kruger, assistant to the solicitor general:
KENNEDY: Does the Justice Department ever make recommendations that prisoners like this have their sentence commuted?
KRUGER: I am not aware of the answer to that, Justice Kennedy. It's certainly true that evidence of that type of rehabilitation factored into the government's recommendation in this case that Petitioner -
KENNEDY: And isn't the population of prisoners in the Federal prisons about 185,000 now?
KRUGER: I think -
KENNEDY: I think it is. And how many commutations last year? None. How many commutations the year before? Five. Does this show that something is not working in the system? 185,000 prisoners? I think that is the number.
KRUGER: I -- I'm not prepared to speak to that question today, Justice Kennedy.
We asked Margaret Love, a D.C. solo practitioner who was the pardon attorney in both the George H.W. Bush and Clinton administrations, and specializes in the area, her reaction to Kennedy's comments.
"I think the point Justice Kennedy was making was that, if it turns out that the law provides no relief in a case as apparently appealing as Mr. Dillon's, shouldn't the Department of Justice recommend clemency to the president?" Love said. "The fact that there are so many prisoners and so few grants of clemency (5 in the last two years) suggests that 'something is not working in the system.'"
Love also noted that Kennedy is a longtime critic of mandatory minimum sentences and of the growth in prison populations nationwide. Love was the reporter for Justice Kennedy's American Bar Association commission that looked at the criminal justice system in 2004 and concluded that it relies too heavily on incarceration. She recalled that in a 2003 speech to the ABA, Justice Kennedy criticized mandatory minimum sentences as "unwise and unjust," and bemoaned the fact that pardons have “become infrequent,” and that the pardon process had been "drained of its moral force." Kennedy said, "A people confident in its laws and institutions should not be ashamed of mercy."
For more on the pardon power, and on Obama's non-use of it, check out this remarkable blog.