Tag: Clemency Project 2014

Life sentence is “slow death penalty”

The Guardian has published a detailed account of a case in the queue awaiting consideration by the President for commutation of sentence.  Ray Bennett was convicted in 1991 of acting as a courier for a crack cocaine distributor, and sentenced to life in prison based on two prior state misdemeanors.  “The judge who sentenced Bennett did his duty reluctantly, saying the drug runners were ‘just country folks’ and not the major traffickers that Congress likely had in mind.” Bennett has now served more than 24 years in prison, has an exemplary record of conduct while incarcerated, and has long since conquered the addiction to drugs that led to his conviction.  His clemency application was filed with the Pardon Attorney through Clemency Project 2014 in early April.  We reprint substantial portions of the Guardian article to show the kinds of cases that may be acted on by the President in coming months. Drug inmate left off Obama’s clemency list: life sentence is “slow death penalty” by Alan Yuhas For two years in the late 1980s, a young addict drove between Florida and Georgia ferrying crack cocaine and cash in a liquor bag. During the next two decades, his brothers and sisters raised families without him, his wife divorced him and died, and he was barred from attending his mother’s funeral less than 50 miles away. Ray Bennett, now 59 and decades sober, will die in prison as sentenced 24 years ago – unless, as he hopes, he receives the same clemency that Barack Obama issued last week for 46 prisoners with similar cases. Bennett was disappointed not to be on Obama’s list of inmates whose prison sentences were cut short, his sister Edna Thornton, 81, told the Guardian after speaking to the inmate on Sunday. “But he said, ‘I’m not giving up,’ and somehow he has never been bitter or angry. “He always felt that if he did the crime he could do the time. He just never dreamed it would be life without parole.” As his sister put it, Bennett “got caught up” in a five-man drug ring run by an old friend, John Hansley, to pay for his addiction to crack. He had two prior drug convictions: one in 1980 for having 12 tablets of diazepam, and one in 1988 for possession of crack cocaine. After police seized him and almost 300 grams of crack cocaine at a bus station in 1990, a prosecutor pressed enhanced charges based on his prior convictions. Bennett was found guilty at a jury trial – he refused to testify against Hansley, writing that he felt “a moral obligation” to him. “A friend since I was a young boy [I] did not want to say anything that would hurt him.” Because he declined to cooperate, the prosecutor added the enhanced sentencing, according to Bennett and his attorney. Under the law, the mandatory minimum sentence was life. “A life sentence is tantamount to a death sentence,” Bennett wrote the president in his petition for clemency. “It is the slow death penalty. “I’ve seen those around me lose hope and commit suicide. I never knew that such levels of despair and despondency existed in our nation. I never knew a nation this great could treat its people so inhumanely.” Three of Bennett’s co-defendants have already walked free from prison. The fourth, Hansley, is scheduled for release in 2017. “Ray’s case illustrates the heart of the problem,” said Bennett’s lawyer Margaret Love, who previously reviewed pardon applications for the White House as the US pardons attorney. “It exemplifies one of the most serious problems of the mandatory minimum regime, leveraging guilty pleas by threatening enhancements.” Love contrasted the modern system to that of the 1960s, when Lyndon B Johnson granted clemency to hundreds – years before Richard Nixon declared war on drugs and the US prison population quadrupled to the 2.2 million incarcerated today. “The president cannot hope to do more than a few of these clemency cases,” Love said. “He’s doing the best that he can, but clemency was never supposed to be used in this systemic fashion.” The problems, however, are systemic, according to reform advocates. Long mandatory minimum sentences for drug violations, especially repeated minor convictions, have left thousands of low-level, nonviolent offenders imprisoned for decades to life. Lawmakers passed one reform in 2010 that narrowed a racially disparate difference between crack cocaine and powder cocaine sentences. If Bennett were sentenced today under the new law, he likely would not receive a life sentence. And as part of last week’s criminal justice push, Obama urged Congress to pass bipartisan sentencing reform bills that would go much further to roll back mandatory minimum sentences, saying that in “far too many cases, the punishment simply does not fit the crime”. But prisoners who have already been sentenced rarely find relief. Only a fraction of the tens of thousands who apply receive clemency or a pardon, leading some activists to compare the system to a lottery. “Clemency can mitigate the effects of mandatory minimums, but really only Congress can change it,” said Jeremy Haile, federal advocacy counsel for the Sentencing Project, a reform organization. “They enacted the laws at a time when there was a lot of hysteria about drug abuse, the war on drugs. It just became very punitive. “The president should continue to say there are too many people incarcerated in too many prisons, for too long, for no good public safety reason.” Even judges have publicly denounced the rules. The judge who sentenced Bennett did his duty reluctantly, saying the drug runners were “just country folks” and not the major traffickers that Congress likely had in mind. More than 20 years later, at least two federal judges continue to wage public campaigns against the terms. A handful of Republicans and Democrats, including Texas senator John Cornyn and New Jersey’s Cory Booker, hope to pass a bill in Congress this year addressing the issue. “Justice is dispensed on an individual basis and you can’t do it on an assembly line,” Cornyn said last week. Defenders of minimum mandatory sentences argue that they bring order to inconsistent courts and can convince suspects to provide testimony. “We’ve created a caste system in this country that disproportionately affects minorities,” Booker said, noting that black children are particularly likely to grow up with incarcerated relatives. “For many communities it’s a matter of life and death, a matter of having the American dream or being denied it.” Bennett and his relatives, who are black, also described the pain of prolonged separation. “I will never forget being told by my unit staff that, due to my life sentence, I would not be allowed to attend my own mother’s funeral,” Bennett wrote. “This prison robbed me of closure. A funeral is for letting go, but I have not been able to do that.” Given their age difference, Thornton said she thinks of Bennett as more of a son than a brother. She and 10 other relatives – siblings, nieces and nephews – wrote letters to the president pleading for Bennett’s release. Visits to Jesup Correctional always left family looking “so sad and broken”, wrote one niece. “Ironically, he ends up encouraging me more than I encourage him.” Although the president can issue executive orders or guidelines to help former inmates find work or housing, Obama can do little beyond offering clemency or pardons for the federally incarcerated. Love argues that the Justice Department should use a law that permits it to take cases with “extraordinary and compelling” circumstances back to court for sentence reductions. The law is almost exclusively used for cases of terminal illness, but Love says the phrase could apply to broader cases. She also suggests the president should rely on the Bureau of Prisons to recommend prisoners for clemency: “Who knows better than them who can hold a steady job, who’s reliable, who’s not going to cause trouble?” Last year, the Justice Department invited prisoners to apply for clemency, but found itself struggling with the deluge of applications. Since 2009, the attorneys at the Justice Department’s pardon office have received more than 30,000 applications, each a hefty sheaf of facts, claims, counterclaims and technicalities. The administration then recruited outside lawyers to help pro bono, under a coalition called the Clemency Project 2014, but the effort appears to have slowed under the work. Bennett’s application remains somewhere in the application stack, the recommendations of family and prison supervisors – he works in the tool room and as a counselor – filed away. “We know that what he did was wrong,” Thornton said. “We just feel that the punishment doesn’t fit. He has made amends and we believe that he would do well on the outside. I do think he will get out,” Thornton said. Read more

Clemency is Not the Answer (Updated)

This piece was originally published in The Crime Report on July 13, and republished in revised form on July 16. On Monday President Obama announced in a video address that he had commuted the sentences of 46 people sentenced to long prison terms for drug offenses.  His counsel, Neil Eggleston, stated that “While I expect the President will issue additional commutations and pardons before the end of his term, it is important to recognize that clemency alone will not fix decades of overly punitive sentencing policies.“ Mr. Eggleston added that “the President is committed to using all the tools at his disposal to remedy unfairness in our criminal justice system.” However, judging from his speech to the NAACP the next day, clemency is the only one of those tools that is calculated to result in any more prison releases. The President has now issued 89 commutations, the most since Lyndon Johnson.  But even if the President ends up granting triple that number or more, it will hardly make a dent in the number of those in prison potentially eligible for relief under the announced standards of the Administration’s clemency initiative.   As Douglas Berman observed recently in his Sentencing Law and Policy blog, if the President one week were to commute as many as 80 federal drug prisoners, “this would still not be as substantively consequential for the federal prison population as the 400-plus drug defendants who will be sentenced to lengthy federal prison terms the very same week!” Meanwhile, the system for administering the clemency initiative is reportedly having difficulty gaining traction.  On July 4, the New York Times reported in a front page story that more than 30,000 federal prisoners have filed applications for commutation of sentence with Clemency Project 2014, the consortium of private organizations formed last year to assist the Justice Department in identifying worthy cases, but that a “cumbersome review process” has allowed only “a small fraction” of them to reach the President’s desk. A press release issued by Clemency Project 2014 shortly after the grants were announced conceded that only four of the 46 cases had been submitted under its auspices, and a review of the recipients of clemency reveals that several did not satisfy the Justice Department’s declared eligibility requirement of ten years already spent in prison.  Some prisoners have now expressed concern that perhaps the blessing of this Project was not the “fast track” to relief they had imagined. There is a growing sense of urgency among those who are responsible for organizing the clemency effort, in the Department of Justice and in the private bar.  In a recent training of volunteer counsel representing clemency applicants, Pardon Attorney Deborah Leff urged them not to delay in getting their clients’ petitions filed. “If there is one message I want you to take away today, it’s this: Sooner is better,” Leff said. Some federal public defender offices have been urged by Clemency Project 2014 to identify worthy applicants from among their client base and submit petitions for them prior to January 20, 2017, since it may take as much as a year for the Administration to review them. But even with the extraordinary resources that have been devoted to identifying prisoners who meet the Justice Department’s eligibility criteria, it seems unlikely that this task can be given more than a lick and a promise before the clock runs out on President Obama’s term. It is not clear if it was the Administration’s original intention to try to reach all deserving cases through clemency, but that goal seems chimerical.  It must now be conceded that a large percentage of the applications that have been filed, whether with Clemency Project 2014 or directly with the Pardon Attorney, will not have even been looked at by the end of this President’s term. Looking back on the 18 months since the clemency initiative was launched, what have we learned? For starters, we’ve learned that the problem of unjust sentences is simply too large and too pervasive to deal with through the clemency mechanism.  When Lyndon Johnson commuted 200 drug sentences in the 1960s, almost everyone then in prison who deserved relief got it, thanks to the staffing efforts of the Bureau of Prisons.  Today, given the massive number of people prosecuted for federal drug crimes in the past 25 years and the fundamental rethinking of federal drug sentences now underway, potentially deserving prisoners are legion. Between 1990 and 2007, nearly 10,000 people were sentenced to prison terms of 30 years or more for crimes involving drugs or firearms.  Twice that number received sentences of at least 20 years.  Trying to produce useful and reliable advice for the President about more than a token number of these individuals is too great a burden for the Justice Department’s tiny pardon staff. But the President cannot be expected to put his reputation on the line on the basis of anything less. In addition to the practical problems raised by trying to force so many prisoner petitions through an administrative bottleneck onto a busy President’s plate, there are institutional reasons why executive clemency is the wrong tool for dealing with systemic problems in the penal system.  Even if a more efficient way of administering the pardon power could have been devised (say, the high-level clemency commission that some states use), this would not have fully put to rest the perennial suspicion the public has about pardoning.   As I wrote shortly after the final Clinton pardons, “as a practical matter [the pardon power] cannot be exercised except pursuant to a process that is perceived as accessible and fair.” As far as substantive fairness is concerned, that has never been expected of clemency.  On the other hand, the diversity within the group of 46 grantees just in terms of length of time in prison has raised questions among prisoners and their lawyers about the fairness of the Justice Department’s method of selection, and about why more of those proposed for relief by Clemency Project 2014 were not chosen. Now that clemency has been harnessed to deal with a system-wide problem involving thousands of potentially eligible individuals, many expect greater attention to a justice-based model of fairness. The words “random” and “lottery” that had temporarily disappeared from conversations about clemency began to surface as soon as the grants were announced. Other institutional concerns are raised by too great a reliance on clemency to deal with a systemic problem in the legal system: this disrespects both the key role played by courts in determining the quantum of punishment under federal sentencing policies, and the legitimate concerns of Congress for the rule of law. Finally, there are philosophical as well as institutional and practical reasons why our justice system is built upon accountable judicial decision-making under statutory authority, and not upon the unstructured and unexplained discretion of a president exercising a plenary constitutional power.  With all due respect to Alexander Hamilton’s Federalist 74, most scholars today subscribe to the vision of Enlightenment philosopher Cesare Beccaria, who proposed in 1764 that “Clemency is a virtue which belongs to the legislator, and not to the executor of the laws; a virtue which ought to shine in the code, and not in private judgment.” (Hamilton might have agreed with Beccaria had he not had such a bad experience with the Continental Congress and such a good one with his mentor George Washington.) Perhaps the most that can be hoped for from the Obama clemency initiative is that it will shine a light on excessive federal prison sentences as a pressing problem of justice, extend mercy to a few fortunate individuals, and signal the need for a more systematic approach. In a word, if clemency is not the entire answer to the systemic problem of excessive sentences, it can still serve its time-honored function of pointing the way to a resolution through the legal system. Looking ahead to the likely denouement of its clemency initiative with only a few hundred token grants, the Obama Administration ought to be exploring ways it can bring cases back to court for the relief so many deserve.  Thankfully, this will not require new legislation or new funds, since there is already on the books a judicial sentence reduction authority that could easily be used. Specifically, 18 U.S.C. § 3582(c)(1)(A)(i) provides that a court may at any time reduce a sentence upon motion of the Bureau of Prisons (BOP) for “extraordinary and compelling reasons.” The Sentencing Commission is authorized under 28 U.S.C. § 994(t) to establish policy for courts considering BOP motions under § 3582(c)(1)(A)(i), which it has done under USSG ¶ 1B1.13. Under this policy guideline, “extraordinary and compelling reasons” that may justify sentence reduction include illness, disability, old age, exigent family circumstances, and any other reason that the Justice Department may determine falls within that category. It is noteworthy that several of the organizations currently participating in the clemency initiative, including the American Bar Association, are on record with the Sentencing Commission as favoring a more expansive menu of “extraordinary and compelling reasons” warranting sentence reduction, including one that now seems prescient: “The defendant would have received a significantly lower sentence under a subsequent change in applicable law that has not been made retroactive.” Less than two years ago, BOP issued a new policy statement with a list of circumstances in which it may seek a sentence reduction, a list that is evidently not intended to be exhaustive.  Accordingly, there is no reason why BOP could not determine that “extraordinary and compelling reasons” exist in any case meeting the criteria set forth by Administration as warranting a grant of clemency. The coincidence of the standards in the two contexts would be particularly fitting in light of the fact that the judicial sentence reduction authority in § 3582(c)(1)(A)(i) was originally enacted in 1976, at the Justice Department’s instance, to expedite sentence reductions that previously had required a clemency application to be submitted to the President.   All it would take to make this happen would be a resolve on the part of the Department to use this statute for the purpose it was originally intended. Augmenting the Administration’s clemency initiative through broader use of a judicial sentence reduction mechanism, which the Justice Department’s own Inspector General has repeatedly criticized as underutilized (most recently for aging prisoners), would put sentence reduction on a sounder long-term footing that is more consistent with the principles of determinate sentencing, be more predictable and accountable as a practical matter, and respond to any concerns about the unaccountable use of executive power. And, because a large scale sentence reduction program is already underway in the federal courts, economies of scale would be possible. Many years ago, when I was serving as Pardon Attorney, then-Deputy Attorney General Philip Heymann asked me why we should ask the President to commute the sentence of an elderly prisoner when (he said) “we can do the job ourselves.” Now I would ask the current Deputy Attorney General the same question.   NOTE: On August 7, the United States Sentencing Commission announced its decision to make possible amendments to USSG § 1B1.13, the guideline for courts considering motions for sentence reduction filed under 18 USC § 3582(c)(1)(A)(i), a priority for the 2016 amendment cycle.  The Practitioners’ Advisory Group is expected to urge the Commission to expand the guideline to reach cases that would ordinarily be considered for clemency relief, including those of prisoners who would have received a less severe sentence under current law.      Read more

Pardon Attorney says clock is ticking on Obama clemency initiative

The Justice Department is urging lawyers for federal prisoners to move quickly to file clemency petitions for their clients, lest the clock run out before the end of the President’s term.   U.S. Pardon Attorney Deborah Leff told volunteer lawyers in a video seminar last week that petitions not submitted until Obama’s final year may not be considered, at least by him.  As reported by Greg Korte of USA Today, Leff suggested that lawyers might be spending too much time briefing cases, and she encouraged them to file even if they have not been able to obtain all documents. “While I greatly admire your legal skills, this is not the time to prepare a treatise of hundreds of pages,” she told the lawyers. James Felman, a Tampa lawyer who represents the American Bar Association on the Steering Committee of Clemency Project 2014, told the volunteers they ought to disclose both the strengths and weaknesses of a client’s case: “Aggressive lawyering is not necessarily going to pay off.” I think that there is a traditional sense that when you represent a client, your job is to make the best argument for relief you can possibly make no matter what.  Understand that here, this is not a court case; clemency is a grace.  And there is an utmost need for candor.   They’re not going to grant clemency to someone who does not meet the criteria.  So you may make the best argument you could make, but please understand that, from our perspective, time spent making a weak argument for an undeserving client is time that we can’t get you to spend making a good argument for a deserving client.  And we have many many clients that we have not yet assigned. Other members of the Clemency Project 2014 Steering Committee also emphasized the need for speed and full disclosure.  Norman Reimer, Executive Director of the National Association of Criminal Defense Lawyers, told lawyers that “The clock is ticking,” and that “Only you volunteers can help us beat the clock.”  Mary Price, General Counsel of Families Against Mandatory Minimums, advised that lawyers must be candid in briefing the project about their client’s case: “We have to know if we have bad facts.” Margaret Love, a Washington attorney who had Leff’s job in the Clinton administration, said she worries that an emphasis on the volume and speed of cases could compromise the ability of attorneys to make the best argument for their clients. “What I heard was hurry up, hurry up, deliver as many cases as quickly as you possibly can,” she said. “If it’s true that there were only 31 cases submitted by the project by the end of May, that’s surprising given the number of lawyers they have working on them.” While Obama’s 43 commutations put him ahead of the pace of presidents since Richard Nixon as far as sentence reductions are concerned, he has still acted favorably in only a small percentage of cases filed with the Justice Department: Thus far, President Obama has granted less than 0.3% of commutation petitions during his presidency, which has seen a record 16,911 petitions through May. Another 44% were denied, 12% were closed for other reasons, and 56% remain pending. Obama has said he wants that to change. “I think what you’ll see is not only me exercising that pardon power and clemency power more aggressively for people who meet the criteria — nonviolent crimes, have served already a long period of time, have shown that they’re rehabilitated,” he said in a March interview with the Huffington Post. Read more

Should clemency substitute for the rule of law? “A Modest Proposal” says no

We cross-post a recent comment about the Obama clemency initiative from Professor Doug Berman’s Sentencing Law and Policy blog because it proposes to supplement the constitutional pardon power with a relief mechanism built into the legal system (there, a sentence reduction by the court rather than presidential commutation).  It reflects the institutional and practical concerns of Enlightenment philosopher Cesare Beccaria, who proposed in 1764 that Clemency is a virtue which belongs to the legislator, and not to the executor of the laws; a virtue which ought to shine in the code, and not in private judgment. Beccaria’s view that clemency should “shine in the code” has a special resonance where collateral consequences are concerned since pardons have become so rare in recent years. Indeed, Judge John Gleeson might have invoked Beccaria when he expunged the conviction of a woman who was unable to find employment because of her criminal record.  We intend to keep arguing in this space for a statutory restoration remedy for the federal system, whatever form it may take.    Sentencing Law and Policy Friday June 5, 2015 Former Pardon Attorney: “A Modest Proposal to Expedite the Administration’s Clemency Initiative” Regular readers know I have given lots of space this week to coverage and criticism of federal clemency efforts.  I am pleased to continue now with a guest post via former Pardon Attorney Margaret Love, which she sent my way under the title “A Modest Proposal to Expedite the Administration’s Clemency Initiative”: Mark Osler’s post in this space on June 4 (“Another View on Clemency Project 2014”) recounts his unsuccessful effort several years ago to persuade the Administration to establish a presidential commission, similar to the one that handled cases of Vietnam draft evaders and deserters during the Ford Administration, to review and recommend clemency relief for the thousands of prisoners serving prison sentences imposed more than a decade ago that are now generally considered far too severe.  He suggests that the reason the Administration chose not to follow this path relates to its doubt that Congress would fund such an effort. Instead, the Justice Department chose to address the problem of excessive sentences by asking a consortium of private organizations to manage it through the volunteer efforts of the private bar. We will never know whether Professor Osler’s commission idea would have worked, or whether lack of funding was the reason it was rejected.  But it does appear that the structure put in place instead to manage the Administration’s clemency initiative has (in his words) “struggled with the overwhelming number of cases (over 30,000) referred to it.” It did not help that the Administrative Office for U.S. Courts sharply limited the role that Federal Public Defender Organizations could play in the clemency initiative, by declaring that CJA funds could not be spent on clemency representations.  Many, including myself, believe that the sentencing expertise and advocacy of the Federal Defenders is critical to implementing the sort of large scale program of sentence reduction the Administration evidently had in mind. But there is another approach that might have been taken by the Administration that would have ensured a central role for the Federal Defenders.  This approach, which might still be taken, would make extraordinary sentence reduction the responsibility of the federal courts as well as of the President.  Bringing cases back to court would not require new legislation or new funds, since there is already on the books a judicial sentence reduction authority that could achieve the same result as executive clemency, through court proceedings where CJA appointments are clearly authorized.  And, because a large scale sentence reduction program is already underway in the federal courts, economies of scale are possible. Specifically, 18 U.S.C. § 3582(c)(1)(A)(i) provides that a court may at any time reduce a sentence upon motion of the Bureau of Prisons for “extraordinary and compelling reasons.” The Sentencing Commission is authorized under 28 U.S.C. § 994(t) to establish policy for courts considering BOP motions under § 3582(c)(1)(A)(i), which it has done under USSG ¶ 1B1.13.  Under this policy guideline, “extraordinary and compelling reasons” that may justify sentence reduction include terminal illness, a physical or medical condition that diminishes a person’s ability to provide self-care in a prison environment, the death or incapacitation of a child’s only caregiver, and any other reason that may be determined to be “extraordinary and compelling” by the Director of BOP.  It is noteworthy that several of the organizations represented on the Clemency Project 2014 steering committee are on record with the Sentencing Commission as favoring a more expansive menu of “extraordinary and compelling reasons” warranting sentence reduction, including one that now seems prescient: “the defendant would have received a significantly lower sentence under a subsequent change in applicable law that has not been made retroactive.” Less than two years ago BOP issued a new policy statement with a list of circumstances in which it may seek a sentence reduction, a list that is evidently not intended to be exhaustive. See Program Statement 5050.46, as amended (August 12, 2013).  Accordingly, there is no reason why BOP could not determine, with or without an amendment to ¶ 1B1.13, that “extraordinary and compelling reasons” exist in any case meeting the criteria set forth by the Deputy Attorney General as warranting a grant of clemency. The coincidence of the standards in the two contexts would be particularly fitting in light of the fact that the judicial sentence reduction authority in § 3582(c)(1)(A)(i) was originally enacted in 1976, at the Justice Department’s instance, to expedite sentence reductions that previously had required a clemency application to be submitted to the President through the Office of the Pardon Attorney. There are in addition other reasons why it would be appropriate to supplement the clemency initiative with a statutory sentence reduction initiative implemented through the courts, including a general preference for a judicial decision-maker under federal sentencing law and policy, and for a congressionally authorized approach over an extra-legal use of executive power. Most scholars agree that clemency ought always to be a second choice where the law provides a remedy for sentencing unfairness or undue severity, as it does in this case.  See, e.g., Daniel J. Freed & Steven L. Chanenson, Pardon Power and Sentencing Policy, 13 Fed. Sent. Rptr. 119, 124 (2001) (“Wherever a rule can be structured to guide the discretion of judges or administrative agencies in determining – with reasons – whether to mitigate the sentences of similarly situated offenders, we think such a system should ordinarily be accorded priority over one that relies exclusively upon the unstructured, unexplained discretion of a president to grant or deny individual pardons or commutations.”) Traditionally, the Federal Defenders have played a central role in proceedings involving judicial consideration of sentence reduction under § 3582(c)(2) where guideline ranges have been lowered, even though there is no constitutional right to counsel in such proceedings.  They are key players in the massive effort to reduce sentences now underway under the so-called “Drugs Minus Two” guidelines amendment. There is no reason why the Defenders should not play a similar role in judicial sentence reduction proceedings under § 3582(c)(1).  There does not appear to be any relevant difference between the two types of proceedings as far as the discretionary appointment power in 18 U.S.C. § 3006A(a)(2) is concerned. In the interests of judicial economy, these proceedings might even be combined. All it would take to make this happen would be a resolve on the part of the Department of Justice to use this statute for the purpose it was originally intended. Augmenting the Administration’s sentence reduction program through broader use of a judicial sentence reduction mechanism, which the Justice Department’s own Inspector General has repeatedly criticized as underutilized (most recently for aging prisoners), would accomplish the Administration’s goals in reducing unduly severe sentences, while at the same time regularizing sentence reduction through the courts pursuant to statute.  It would put sentence reduction on a sounder long-term footing that is more consistent with the principles of determinate sentencing, be more predictable and accountable as a practical matter, and respond to any concerns about the unaccountable use of executive power. Many years ago, when I was serving as Pardon Attorney, then-Deputy Attorney General Philip Heymann asked me why we should ask the President to commute the sentence of an elderly prisoner when (he said) “we can do the job ourselves.”  Now I would ask the new DAG the same question. Read more

President promises a more “open” pardon process, more pardon grants

During a Town Hall in South Carolina on March 6, President Obama spoke for the second time in recent weeks about his intention to use his pardon power more generously in the final two years of his term. Responding to a criminal defense attorney who asked what she could do to “increase the number of federal pardons,” the President explained that he was taking a “new approach” to pardons after receiving surprisingly few favorable recommendations from the Justice Department during his first term.  He said he had asked the Attorney General to “open up” the pardon process, and to work with advocacy groups and public defenders to make people more aware of the availability of this relief: [W]hen I came into office, for the first couple of years I noticed that I wasn’t really getting a lot of recommendations for pardons that — at least not as many as I would expect. And many of them were from older folks. A lot of them were people just looking for a pardon so they could restore their gun rights. But sort of the more typical cases that I would have expected weren’t coming up.   So I asked Attorney General Holder to work with me to set up a new office, or at least a new approach, inside the Justice Department. Because historically, what happened was the President would get a big stack of recommendations and then he could sign off on them — because obviously, I don’t have time to go through each request. And so what we’ve done now is open it up so that people are more aware of the process.  And what you can do is contact the Justice Department. But essentially, we’re now working with the NAACP, we’re working with various public defenders offices and community organizations just to make people aware that this is a process that you can go through. The President advised that “typically we have a pretty strict set of criteria for whether we would even consider you for a pardon or commutation,” and directed the inquirer to the Justice Department website where he said those criteria can be found. So my first suggestion would be to go to the Justice Department website.  If the person doesn’t qualify because they may have served time but there were problems when they served time, or if it was a particularly violent crime, or they may just not fit the criteria where we would consider it — a lot of what we’re focused on is non-violent drug offenses where somebody might have gotten 25 years, and she was the girlfriend of somebody and somehow got caught up, and since then has led an exemplary life, but now really wants to be able to start a new career or something like that.  That’s the kind of person, typically, that would get through the process. So, a couple of things about the President’s comments.  As in his BuzzFeed interview ten days ago, and as reported by Greg Korte in USA TODAY, the President seems genuinely willing to consider requests for full pardon from people who have completed their sentences and “led an exemplary life, but now really want[] to be able to start a new career.” This is good news. President Obama has taken a commendable interest in prisoner requests for sentence commutation, but his record of granting full pardons to date has been disappointing: Available statistics indicate that he has granted fewer full pardons than any full-term president since John Adams. On the other hand, the President’s “new approach” to handling clemency requests, and his promise of a more “open” pardon process seems so far not to have materialized.  In fact, the Justice Department’s pardon process appears to be more opaque and overburdened than ever before. This is largely because of the “clemency initiative” announced by the Attorney General in April of last year, which invited federal prisoners serving long prison terms to apply for commutation of sentence. Not surprisingly, many have accepted this invitation. The Washington Post reported on February 29 that “more than 35,000 inmates — about 16 percent of the federal prison population — have applied to have their sentences shortened under the Justice Department-led initiative,” either directly with the Office of the Pardon Attorney (OPA), or with the consortium of private organizations known as Clemency Project 2014.  Most of the applications are being processed through this private screening process.  The Post reports that “a complicated review process” has “slowed” the processing of this “massive influx of applications.”  After a full year, no grants have yet been made to applicants vetted by Clemency Project 2014, and according to the Post article it has to date submitted only 14 petitions to be considered for clemency. In addition to the thousands of prisoner petitions, more than 800 applications for full pardon have been filed with OPA, some of which have been fully investigated and awaiting disposition for some time.  While it is true (as the President said) that many pardon petitioners are interested in restoration of their firearms rights (there is no other way), or are simply seeking official recognition that they have paid their debt to society, many others are badly in need of relief from the harsh consequences of conviction in the workplace and in the community.   With DOJ resources and attention focused on commutation requests, pardon cases appear to have been put on the back burner, and the newly appointed Pardon Attorney has so far declined requests to meet or speak about this neglected aspect of her office’s workload. Never before in our history has the pardon power played a more important role in the justice system, and never before has the official pardon process seemed so dysfunctional.  It is understandable that the President would be reluctant to use an extraordinary constitutional power to address systemic problems with the legal system, but then one might expect to see him encourage legislative substitutes for pardon, such as the judicial certificates whose enactment in Illinois he himself secured a decade ago, or even the federal expungement proposal sponsored by Senators Cory Booker and Rand Paul.  The Justice Department has available to it statutory authority for seeking sentence reduction from the courts, but it has been unwilling to use it except for prisoners who are dying or completely disabled. President Obama’s comments expressing impatience with the output of the Justice Department’s pardon process are eerily reminiscent of President Bill Clinton’s comments expressing frustration with the pardon process shortly before the end of his term: I have done–I haven’t seen the final numbers, but before the last batch at least, I had done fewer than any President in almost 30 years. And part of that, frankly, is the way the system works, something I’m not entirely satisfied with.   The consequences of President Clinton’s dissatisfaction with the official pardon process at the end of his term are well known.  President Bush experienced a similar disappointment in the official process, and attempted to warn his successor.  George W. Bush, Decision Points 105 (2010)(““On the ride up Pennsylvania Avenue on Inauguration Day, I told Barack Obama about my frustrations with the pardon system. I gave him a suggestion: announce a pardon policy early on, and stick to it.”) Let us hope that there is still time before the end of his term for President Obama to get what he wants from the Justice Department’s pardon process, something Presidents Clinton and Bush were not able to do, or to put in place a substitute for it.  If past is prologue, this will not happen if the Justice Department is left to its own devices. Getting the Justice Department’s pardon process to deliver a substantial number of favorable recommendations, whether in commutation or pardon cases, will take direct hands-on intervention from the White House, by people who have an understanding of how the process can and should work to serve the presidency as well as the American public.  Otherwise, one can predict only a token number of commutation grants and a scrum of pardon favor-seekers outside the White House Counsel’s door in the final days of President Obama’s term.  He can’t say he wasn’t warned.     Read more