Much ink has been spilled — appropriately — on President Trump’s pardons. The press has criticized grants to loyalists who chose not to testify against him and to the politically connected. Many have excoriated Trump for granting clemency to war criminals, like the Blackwater mercenaries convicted of murdering Iraqi civilians. Some have suggested investigating whether these pardons involved a corrupt exchange — silence for clemency — which would be bribery. Trump is not the first to walk this line. Former president Bill Clinton’s pardon of Marc Rich, the wealthy financier, was scrutinized because Rich’s former wife made a substantial contribution to the Clinton library and Hillary Clinton’s Senate campaign. Ultimately, no corrupt link was found.
Less attention has been paid to the pardons of people Trump did not know, who were serving prison terms that were wildly disproportionate to their crimes. Of course, as with all things Trump, even these pardons followed an opaque process, perhaps less about the merits of their cases than about whom their benefactors were.
Still, Trump’s pardons of the unfairly sentenced hold up a mirror to an ugly system. (We know this from our work as a federal judge and criminal defense lawyer.) They invite us to look closely at the outsized roles of federal prosecutors in mass incarceration, the perceived impotence of judges to stop it, and the cruel laws that have enabled both. Presidents and governors must step in precisely because no one else can or will. Recent reforms, though helpful, were modest. Legislatures give prosecutors a menu of crimes with extraordinary punishments from which to pick, or more often threaten, in exchange for guilty pleas. This scenario is far too common: A prosecutor terrifies a defendant with a 20-year — or more — mandatory minimum sentence for using a gun in a drug deal, on top of a drug sentence, but promises to make the gun charge disappear for a guilty plea to, say, 5 years on the drugs alone. If the defendant refuses and is convicted, the crime that once deserved a few years, now faces quadrupled imprisonment or worse. Courts have not stepped up, in part bound by legislative limits, but more often by judge-made hyper technical rules which overlook serious injustice. Even the Eighth Amendment’s ban on cruel and unusual punishment is no help. To the Supreme Court, it applies practically only to the death penalty or mandatory life without parole for juveniles, not decades of prison for minor crimes.
Take Weldon Angelos, whom Trump pardoned. Angelos served 13 years of a 55-year prison term for three marijuana sales to an undercover agent totaling about $1,000 within a 72-hour period. He had a concealed gun, which he neither used nor threatened to use. By charging three separate crimes, the prosecutor enabled mandatory consecutive punishments for each. While the law generally provides higher sentences for repeat crimes, applying this to a single 72-hour crime spree made no sense. Even the judge said Angelos’s sentence was “unjust” and “irrational.” The law that authorized Angelos’s sentencing was later amended, but the change was not retroactive.
Consider Daniela Gozes-Wagner, whose sentence Trump commuted. (Nancy Gertner consulted with the Aleph Institute, a Jewish humanitarian organization, in her case.) A single mother of two, Gozes-Wagner was convicted of health care fraud and money laundering. She was a midlevel manager for the company that improperly received government funds. Her 20-year sentence was wildly more severe than her co-defendants whose roles were more substantial. The difference? She went to trial; they pleaded guilty.
Trump’s pardons do not make a dent in the system’s injustice. Most recipients were white, charged with white collar offenses, sentenced to short terms of imprisonment or terms already served. Of the 94 clemency actions, only two are Black men, who have borne the brunt of mass incarceration; only nine were still imprisoned on lengthy drug sentences.
The authority to pardon is an ancient attribute of sovereignty dating from Seneca and Cicero. Used to show sovereign grace and mercy, clemency can ennoble a nation. But even its responsible exercise should not blind us to deeper problems. The United States remains too addicted to incarceration. The US legal system sentences by categories, lumping people together who were not similarly culpable, too often people of color. We cannot undo the damage through individual releases, especially when we depend upon the instincts of politicians who want to reward supporters or send self-congratulatory tweets. When a system that allows for injustice on this scale relies on the whims of the chief executive to make it fair, something is terribly wrong.
Nancy Gertner, a former US District Court judge, is a senior lecturer at Harvard Law School. Dean A. Strang is a professor at Loyola University Chicago School of Law and a criminal defense lawyer in Madison, Wisc.