Longest serving marijuana offender rejected

Pot, LSD cases getting ignored

President Obama yesterday rejected a record 2,229 clemency requests, including those from some non-violent marijuana offenders who clearly have been in prison too long.

The Justice Department released only names of those denied clemency, not the reasons for rejection, so it’s unclear why the president ignored some of the most unjust sentences. Obama has given 562 sentence commutations since taking office. He also has rejected 10,968 clemency requests during that time.

The likely reason for denying clemency to many of the most unjustly sentenced prisoners is a six-part clemency test that Obama established in 2014. These self-imposed regulations create a complex matrix technical sentencing variable, none related to the arbitrariness or injustice of a sentence.

Obama’s criteria effectively says he will reduce old sentences to what they would be if given today. This heavily weights commutation grants to crack and meth offenders, a good thing because those two drugs were singled out for sentences based on race and class rather than the drug itself. But it largely excludes marijuana and LSD offenders.

President Obama hugs a clemency recipient at White House on March 30, 2016.

Obama’s technocratic approach has largely stripped the process of moral judgments based on fairness, humanity and common sense. But formulas aren’t enough. Mercy is a judgment call. (See my Washington Post article, “Mr. President, You’re doing clemency wrong. It’s not about the law, it’s about mercy.”)

The president’s rules have been particularly unfair to non-violent marijuana and LSD offenders. Two denials yesterday were especially heartbreaking.

Forgotten pot prisoners 

Antonio Bascaro, 81, with daughter Aicha, is the longest serving marijuana prisoner in U.S. history. Obama denied him clemency yesterday.

Antonio Bascaro, 81, a wonderful Cuban with an amazing family, is the longest serving marijuana offender in U.S. history — locked up for 36 years. No violence. No prior criminal record. (Read his story here.)

Antonio’s problem isn’t the unjustness of his sentence. That is manifest. His problem is that he’s an “old law” case while Obama’s criteria are designed to fix “new law” problems. The “new law” is the Anti-Drug Abuse Act of 1986 that eliminated parole in the federal system, shifted sentencing power to prosecutors (away from judges) and imposed long, mandatory minimum drug sentences, such as those for crack cocaine. The “new law” has been scaled back by Congress,  the U.S. Supreme Court, the U.S. Sentencing Commission and, most of all, public opinion in the last 30 years, and Obama is using clemency to match sentences given under the disgraceful 1986 law with subsequent tinkering. In sentencing parlance, this is called “retroactivity.”

But Obama’s “new law” focus misses the people who need relief the most: those locked up so outrageously long that they’re “old law” cases. It’s a perversion of the clemency process to say you’ve been locked up so long, treated so unfairly, screwed to historic proportions in an era of marijuana legalization, that you aren’t qualified for any mercy.

If you wonder why people don’t respect the criminal justice system, meet Antonio Bascaro. He spends his days hobbling with a walker around a federal prison in Miami, reading newspapers and watching the news on a small TV in his cell.What did this wonderful old man tell me in an e-mail after hearing his clemency request had been rejected: “Now, I’ll try to go back to my routine. I feel more sorry for my kids, grandkids, and my sisters and family. They will be really affected with that decision.”

I feel sorry for my country.

Kenny Kubinski, now 68, serving life without parole, denied clemency.

And Kenny Kubinski, 68, a non-violent offender serving a life without parole sentence for pot and cocaine. He received three Purple Hearts, a Bronze Star, and Army Commendation Medal as a rifleman in U.S. Army Company A, 1st Battalion, 506th Infantry (Airborne) in Vietnam. He’s a great person, too, smart as can be and part of a great family.

Who benefits from life sentences for pot? How is making Kenny Kubinski serve years 24, 25, 26 and so on, til death do him part, serve society, justice, taxpayers, human decency.

Kenny received three Purple Hearts and a Bronze Star in Vietnam.

President Obama’s heart is in the right place. He’s used clemency to shorten sentences of 562 drug offenders, and he’s done so with empathy, integrity and a true concern for the powerless. No recent president comes close.

But he’s trapped inside his legal training. Clemency has nothing to do with the law. It’s extra-legal, a check on law’s relentless machinery of imprisonment. It was the only kingly power retained in the Constitution, preserved for its use as a tool for “humanity and good policy” and “easy access to exceptions.” Alexander Hamilton’s words, not mine, explaining clemency in the Federalist Papers.

Clemency by category

Obama needs to use clemency at the policy level:

• all non-violent marijuana sentences shall be reduced to a maximum of 10 years.
• all non-violent drug sentences shall be reduced to 15 years.
• All sentences shall be reduced in length by 25%.
• two inmates chosen by each prison warden for admirable behavior shall be released from prison three months after selection.

And so on.

The history of clemency by category is long, from George Washington (Whiskey Rebellion) to Abraham Lincoln (Great Sioux Uprising) to Jimmy Carter-Gerald Form (Vietnam draft dodgers). It’s time for Obama to stop being lawyerly and start being presidential. Tens of thousands of families are depending on his signature.