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Mr. President, your Administration has fought at times in the past eight years to preserve the powers of the Presidency from infringement by the Congress, the courts, the press and other institutions in our society. This conflict is as old as our government and inevitable. The Framers of the Constitution created the system of checks and balances. Even within the branches, such as the bicameral legislature, power is shared. Your power to grant reprieves and pardons is an important check on the power of the Congress, the courts, and even the prosecutors of the executive branch.

But implicit in fighting to protect Presidential powers is the commitment to use the power fully and appropriately when warranted. Now is the time for you to use the power to reprieve and pardon set forth in Article II, Section 2 of the Constitution.

Mr. President, during past year, you, have pardoned an average of 35 persons per year. But as Professor Kathleen Dean Moore wrote on Sunday, Presidents from FDR through Jimmy Carter granted clemency to an average of more the 200 persons per year. President Reagan pardoned only about 400 persons during his eight years, and George Bush, Sr. pardoned 78 persons in his four years. You were elected, in part, to reverse the course of the Reagan-Bush years. This record is a dismaying failure to use one of your important presidential powers.

This power is so important the Framers of the Constitution placed it in the same sentence as the designation of the President as the Commander-in-Chief of the Army and the Navy. In the overall structure of the justice system it is the ultimate protection against injustice.

The Congress writes the laws, and it can make profound mistakes in the writing of those laws. You have repeatedly acknowledged such mistakes in your comments about the unwarranted disparity between crack cocaine and powder cocaine sentences. I know first hand of this capacity for mistake by the Congress – I was counsel to the House Judiciary Committee in 1986 responsible for processing the mandatory minimums, and the crack cocaine – powder cocaine disparity. Those mistakes – even mistakes of this magnitude -- usually not unconstitutional. Thus every one of challenges to the extreme crack cocaine sentences has been struck down in the courts of appeals. This disparity means that the crack addict who has some minor role in a drug operation -- driver, doorman, tout -- can get a much longer sentence than the cocaine entrepreneur who sells tens of thousands of dollars of cocaine.

The Federal prosecutors investigate scores, hundreds of offenders each year and sometimes they make mistakes in the selection of cases. As you know first hand from being the target of investigations of various independent counsels, prosecutors can be over-zealous and make mistakes of improper priorities.

When extensive resources are spent investigating a case, prosecution will go forward even if innocent persons or only minor offenders go to trial. There is no correction when a prosecutor mistakenly selects an offender for a mandatory minimum offense. Our adversarial system of justice has become increasingly personalized. Prosecutors are personally committed to go after anyone they perceive as an offender.

The courts are forced to carry forward prosecutorial mistakes. Federal judges can’t throw out small cases or discharge minor defendants because the case is insignificant or does not warrant a Federal interest. When a defendant is charged with a case carrying a mandatory minimum sentence, the conviction rates exceed 90%. Thus the courts are imposing sentences that are very long, and which the judges are powerless to modify in the interests of justice.

The constitutional duty of correcting these mistakes rests upon you, Mr. President. Framers knew that mistakes would happen – what Alexander Hamilton referred to as “unfortunate guilt.” Almost all of Federalist No. 74 addresses the importance of this power.

Mark Anthony Moody of Kingsport, TN had ineffective counsel according to the Federal Judge Thomas G. Hull, U.S. District Court for Eastern Tennessee and the U.S. Court of Appeals for the 6th Circuit. (“nor is there any dispute that Pectol’s behavior [Moody’s attorney] met the standard for ineffective assistance of counsel.” U.S. v. Moody, No. 98-6142, (6 Cir. 2000), Opinion of the Court at slip opinion 10. But the 6th Circuit ruled that he did not have a right to counsel under the 6th Amendment during pre-indictment plea negotiations. Even though the 6th Circuit found “logic, justice and fundamental fairness,” (Ibid. at 7) favored Moody’s position, it rejected the District Court’s remedy of a reduced sentence.

Mr. President, your Administration has used the power to prosecute crime like no previous administration. During the past eight years, the Federal prison population doubled from 73,000 to 146,000 today. No one believes that the Federal justice system has been infallible, that no mistakes have been made. No one believes the Federal justice system is any more immune from error than the Postal Service, the IRS, or the Social Security Administration. No one believes that the errors only favor offenders who go free improperly.

Nancy Simmons of DeBary, FL was a driver. If she had been convicted 6 weeks later, she would have benefitted from the 1994 safety valve and would have spent Christmas with her three children.

It is likely that there are on the order of 24,000 low-level, nonviolent drug offenders who have no prior record who are in Federal prison. Many of them are serving a much longer sentence than is just.

Mr. President, you can correct those errors before you leave on Saturday. You could appeal today to the Federal judges to fax to your office the names of the prisoners they sentenced to terms of imprisonment longer than is just. You and your staff could review those cases.

You do not have a lot of time. But let’s bear in mind what is at stake here. It is the imprisonment of people who don’t deserve to be imprisoned. Such imprisonment is morally wrong, even if legally correct. Such imprisonment breaks the hearts of parents, warps the souls of children. Every day thousands of families are tormented. You have four full days until you leave office. Every minute counts.

Certainly such imprisonment is not comparable to the killings of the Jews during the Holocaust. But I think the model of men such as Oskar Schindler or Raoul Wallenberg frantically working to the last minute to change the fate of individuals is a worthy image to keep in mind. While President-elect Bush is in no way comparable to the Wehrmacht, it is unlikely that he will address these issues soon. A year or two of unwarranted imprisonment is nevertheless an offense against our system, and an evil you can prevent.

The labor of you and your staff between now and Saturday morning to review these cases will bear a rich fruit of justice. I urge you not to forfeit the power you have to do mercy and justice this week.

Eric Sterling is the head of the Criminal Justice Policy Foundation in Washington, D.C. He was counsel to the House Judiciary Committee from 1979 to 1989.