Obama clemency process reportedly “more backlogged than it was before”

USA Today reports that unexpected administrative complications continue to delay the clemency initiative launched by the Obama administration last year.  More than a year after the Justice Department sought assistance from private organizations in identifying federal prisoners deserving of sentence commutation, that ancillary process has submitted only 31 cases for favorable presidential action.  In light of the fact that more than 1500 volunteer lawyers have been working since last fall on cases assigned by Clemency Project 2014, this modest number is surprising.

Lawyers involved in the effort say the year-old clemency initiative has been hampered by the complexity of the cases and questions about the eligibility criteria, which may still be too strict to help most of the prison population.

The result is a system that appears even more backlogged than it was before the initiative began.

The system for briefing cases that has been developed by Clemency Project 2014 may have contributed to the slow pace.  Mary Davis, a veteran federal defense lawyer who has handled several cases through that process, commented that “I know there were attorneys signing up for this who don’t do criminal defense work, and I would think it would be extremely difficult.”  Two law students working with her on one case she submitted spent a combined 122 hours helping her with it.

But it now appears that a shortage of resources in the Justice Department may also be a contributing factor. The Department told USA Today’s Greg Korte that while it “expects to recommend more commutations to Obama,” this “could take a while.”

In its 2016 budget request to Congress, the department said the deluge of clemency applications is too much for the current staff to manage.

“As OPA’s existing staff has discovered, expending the substantial resources required simply to manage such a volume of clemency requests significantly decreases those available for analyzing and evaluating the merits of individual applications and preparing the appropriate letters of advice to inform the president,” the Justice Department said in its congressional budget justification.

Obama has proposed a 66% budget increase for the Office of Pardon Attorney in 2016, and is seeking twice as many lawyers to process all the paperwork.

It was originally hoped that Clemency Project 2014 could “cut through the process by helping to provide the Justice Department with better, more complete case files to review,” but “that solution has also led to criticism from Capitol Hill, where Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, says that the administration is outsourcing a government responsibility.”

Even beyond resource problems, the Justice Department’s enthusiasm for the clemency initiative appears to be waning.  A Department spokesperson told USA Today: “The clemency process is just one prong in the department’s efforts on sentencing changes. The department has successfully urged the Sentencing Commission to make changes and continues to push for legislation in Congress as well.”  (While it is true that the Sentencing Commission’s recent reduction of the drug guidelines will accomplish for many prisoners what a grant of clemency would, it won’t help people serving mandatory minimum sentences, or people sentenced under other guidelines, such as the career offender guidelines.)

Johanna Markind, an attorney who until recently worked in the Office of the Pardon Attorney, told USA Today that few cases fit the criteria for clemency set forth by former Deputy Attorney General Jim Cole:

“The criteria basically suggest that a whole bunch of good citizens who committed one little mistake got significantly more than 10 years in prison, and fortunately that’s pretty rare,” said Johanna Markind, a former attorney-adviser in the Office of Pardon Attorney who left in March.

“I think they’ve kind of belatedly realized that people are doing their jobs, and those perfect cases they think are there don’t really exist,” she said. “For all the sound and fury about the commutations, the clemency initiative has only come up with a handful of cases that fit” the criteria.

Markind also told USA Today that “the clemency initiative did not relax Obama’s ‘three strikes’ policy making anyone with three or more criminal convictions ineligible for clemency. “‘Criminals with a record do not make the most appealing poster children,’ she said.”  (This statement seems odd in light of the fact that almost all of the 40 individuals whose sentences were commuted by President Obama had prior records, and many had three or more convictions.)

Professor Mark Osler, who has in the past been critical of the way the Obama Administration set up its clemency initiative, now seems genuinely discouraged about the prospects for smooth sailing in the months ahead:

“We’ve failed the same way through different kinds of administrations, and the problem isn’t the administration, it’s the process,” Osler said. “The sad thing is, every president recently has gotten to the end of their term and said, ‘Hey, where are all the good clemency cases?’


I sure hope that will change, but it’s going to be a furious last year as these things start to come in even greater numbers.”