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April 24, 2014

How many of current federal prisoners satisfy all six of the new DOJ clemency guidelines?

As reported here, yesterday the US Department of Justice announced more formally its plans and criteria for its Clemency Initiative, and this memo by Deputy AG Cole there set forth "six criteria the department will consider when reviewing and expediting clemency applications from federal inmates":

Under the new initiative, the department will prioritize clemency applications from inmates who meet all of the following factors [numbering added]:

  • [1] They are currently serving a federal sentence in prison and, by operation of law, likely would have received a substantially lower sentence if convicted of the same offense(s) today;
  • [2] They are non-violent, low-level offenders without significant ties to large scale criminal organizations, gangs or cartels;
  • [3] They have served at least 10 years of their prison sentence;
  • [4] They do not have a significant criminal history;
  • [5] They have demonstrated good conduct in prison; and
  • [6] They have no history of violence prior to or during their current term of imprisonment.

This BOP page indicates that, as of April 24, 2014, there are 216,614 total federal prisoners, and this BOP accounting of sentences imposed indicates that the majority of federal prisoners are serving sentences of less than 10 years. Moreover, I suspect that less than half of the roughly 45,000 federal inmates current serving prison terms of 15 years or more have already served at least 10 years of their prison sentence. In other words, clemency criteria #3 above alone probably cuts the number of possible "priority clemency applicants" down to around 20,000.

In a sound and cautious sentencing system (and likely in most state sentencing systems), there would be relatively few among the group of inmates serving over 10 years in prison who were "non-violent, low-level offenders" who lacked a "significant criminal history" and also have "no history of violence prior to or during their current term of imprisonment."  Nevertheless I fear that in the federal sentencing system under old-mandatory guidelines, there may be thousands of crack offenders and many other drug offenders (and perhaps even some white-collar offenders?), who have been imprisoned for a decade for non-violent, low-level offenses.  

Thanks to the Fair Sentencing Act, many of the crack offenders should be able to state that "by operation of law, [they] likely would have received a substantially lower sentence."  But can any lower-level non-violent drug offender also reasonably make this claim if she was sentenced before Booker? Could these drug defendants point to the now pending drug guideline amendments (as well as Booker) to claim they meet clemency criteria #1?

Long story short, I suspect there may well be perhaps 5000 or more federal prisoner who can make a plausible claim that they meet all six of clemency criteria.

April 24, 2014 at 01:38 PM | Permalink

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I have been working for 5 years on a 2255 habeas corpus case for a M.D. who fits the criteria. Case No. 09-CV-07104 (Crim. No. 01-CR-0047)(E.D.Ky.). Dr. Sawaf, an Iraqi by birth, who came to the U.S. in 1965 to do a medical residency in urology, was convicted in 2001 of prescribing narcotics without a medical necessity in eastern Kentucky. At each of his 3 sentencing hearings, he received the maximum statutory sentence under section 841(b)(1)(C), 20 years; and he has now served about 13 years of it. See, "United States v. Ali Hadi Sawaf", 129 F. App'x. 136 (6th Cir. 2005), for the underlying facts. A Certificate of Appealability was granted from the denial of his 2255 Motion, and the appeal is now pending, fully briefed, at the Sixth Circuit. Docket No. 13-5620. The issue on appeal is whether defense counsel was ineffective at plea bargaining, for advising Dr. Sawaf to reject the Government's 41-month long plea offer. Defense counsel was only 3 years out of law school then, and had never previously handled a federal criminal case. He failed to advise Dr. Sawaf of the U.S. Sentencing Guidelines (235 to 293 months!) that might apply if he went to trial and was convicted. Counsel did not purchase a copy of the Guidelines Manual until after Dr. Sawaf was convicted. The District Judge found that counsel was ineffective, but held that Dr. Sawaf was not prejudiced by such ineffectiveness, since he testified at trial and continued to state at his 2255 hearing that he doesn't believe that he is guilty of the crimes he stands convicted of committing. Thus, the Judge did not believe that she could ever have accepted a guilty plea from him, since he would not admit actual, factual guilt. The Judge overlooked that as a habeas remedy, she could order the Government to accept a Rule 11 plea of nolo contendere, which does not require any admission of factual guilt. See, "United States v. Morris", 470 F.3d 596, 602-03 (6th Cir. 2006) and "Richard Jones v. United States", 504 F. App'x. 405 (6th Cir. Nov. 5, 2012). If the apeal is lost, Dr. Sawaf will probably file a Petition for a Presidential Commutation.

Posted by: Jim Gormley | Apr 24, 2014 1:57:43 PM

Wouldn't most people who fit the six criteria also have met the safety valve in 3553(f)? I suspect there are far less than 5,000 who will meet the criteria.

Posted by: Hmm | Apr 24, 2014 2:30:06 PM

Also, especially when it comes to crack offenders (whom I understand make up the bulk of offenders who could point to "likely would have received a substantially lower sentence if convicted of the same offense(s) today" are going to satisfy "without significant ties to large scale criminal organizations"?

As I read #2 and #6 they seem geared toward the actual conduct of the offender and not what was negotiated down to for entry of a guilty plea. If my understanding on that point is correct then I could well see plenty who would appear to qualify based only on their offense of conviction losing out when the entire record is examined.

Posted by: Soronel Haetir | Apr 24, 2014 2:31:19 PM

Doug. This is one area where you expertise could really help to inform the debate. My non-factual intuitive reaction to this news was that it is more of the typical DC bullshit of elevating the appearance of "doing something" rather than actually doing something. Given the amount of free ink the Administration has gotten (both pro and con) I think that the man-in-the-street would be surprised that only 5,000 prisoners met the criteria, which according to my rough calculation is 1 in 10,000 prisoners. That's not something an honest person would call an "initiative", indeed I wonder how different 1 in 10,000 is from a simple background error rate.

So is there any substance to this "initiative" more of the same BS.

Posted by: Daniel | Apr 24, 2014 4:55:18 PM

Number 3 greatly reduces the numbers abd is exactly why my boyfriend does not qualify. .....when will they start changing the laws where they would actualky need physical evidence to convict rather than just taking two or more peoples word.....j/s

Posted by: terese duckett | Apr 24, 2014 4:56:10 PM

Why all the criteria for those already sentenced. If your not yet sentened, you will get the drop in your psr.

The reason is, they dont want any flack on freeing inmates that did more than get caught with drugs.. We are still back to politics as usual.

What does criminal history havr to do with liwering the drug equiv tables. Nothing.

The USSC. Has done the cery same trick. Non violent will a 2 level drop. But wait, we havent decided if its retroactive or not. Most all of these guys have domestic assault or some variety of assault. Their criminal history category has taken that into account.

Good gravy give the dudes a 2 level drop.

Posted by: Midwest Guy | Apr 24, 2014 6:34:18 PM

Just to clarify, as I try to channel Prof Otis, it turns out that the majority of federal prisoners are serving sentences of 10 years or less. But I thought that one of Prof Berman's underlying premises was that the federal prisons were full of people serving draconian sentences that were in no way justified by their crimes. Perhaps there's been a bit of exaggeration.

Now does this mean that there aren't inmates who are deserving of clemency? Absolutely not. And does this excuse the Justice Department's heretofore dysfunctional Pardon Attorney system? No way.

But let's not pretend that there aren't a lot of people in the custody of the Bureau of Prisons that need to stay there for the safety of the community.

Posted by: Observer | Apr 24, 2014 8:25:32 PM

Speaking of Bill Otis, where is the bitter old buzzard. I kind of miss him!

Posted by: Liberty Lawyer | Apr 24, 2014 8:51:37 PM

Bill is gathering all of the ammo he can, for his assault on the up coming legislation.
He is not going to waste his time and effort on this blog, not for a while anyway.

He will be trying to get some coverage on this or attention from the powers in place.

Bill would correct me for talking for him, I know. But this is just what wild Bill is up to.

Posted by: Midwest Guy | Apr 24, 2014 11:25:15 PM

My son has know violent criminal history drugs only. He was sentenced 20 years but he doesn't qualify because according to # 3 He has only served 2 yrs an 10 months of his barbaric sentence of 20 years. No history of any violence of any sort. This is not a professer ,Lawyer, student , this is a mother of a Son who had a life a little 5 yr. old boy. A Family who lives this nightmare everyday. This has given me a compassion for people that I never had before. All the broken hearts , Children, Husbands, Wife's These are not Cookie Cutter Circumstances there as individual as the people. I only hope that Everyone is given a second chance. Actually a first chance there was know Justice that day for my Son only a cookie cutter guideline that if you even dare dispute you are threatened by the prosecutor to receive life. Game Over.

Posted by: Gina Codalata | Apr 25, 2014 12:54:55 AM

"Speaking of Bill Otis, where is the bitter old buzzard. I kind of miss him!"

Bill packed up his toys and went home. I know what you mean about missing him, like missing an old hemorrhoid, where healing it was one of your sole focuses (foci?) in life. It gave life a purpose.

Posted by: albeed | Apr 25, 2014 8:59:43 AM

Daniel, out of curiosity, could you say more about your 1 in 10,000 calculation? Doug says that there are 216,614 federal prisoners and that roughly 5,000 may be eligible. That works out to 1 in 43 prisoners being eligible, which strikes me as a potentially significant percentage. Are you using different numbers?

Posted by: GCW321 | Apr 25, 2014 10:23:07 AM

If the "Gang" criteria is followed that will greatly reduce the number.

Posted by: AUSA12 | Apr 25, 2014 11:19:00 AM

I agree with Gina Colata...her son shouldn't be in there and since he is they should atleast give him the lightest sentence....I pray every day with him and have been praying for him daily and the system that things will change....I am his aunt and I don't agree with the system and how a person is charged with something non violent but will get the same sentence as someone who committed murder.....praying in the name of Jesus for these men and women that have made a mistake in life and have their life taken away from them that the system will change.....God bless

Posted by: Donna Perkins | Apr 25, 2014 12:57:51 PM

GC321

Yes, sorry, I should have been more specific to make my point clearer. The number I was using was the total population of prisoners in the USA roughly 2.5 million. (Note, this number may be outdated, it's just the last number I recall reading.) The point I wanted to make was not about justice but about the appearance of justice. The average person on the street, when she thinks about criminal justice policy at all, doesn't think about such distinctions as state vs federal prisons--she just has an inchoate idea that a lot of people are in prison. So if it was mentioned to such a person that only 5000 people might be affected by this "initiative" she might get the impression that it is nothing more than a drop in the bucket, a publicity stunt.

What I do not mean to imply is that the actual justice is irrelevant. I'm sure that every person freed under this program is going to be thrilled. It's simply the fact that on one hand this is being promoted as a major initiative and yet the criteria is rather lengthy and it seems that so few people meet it (compared to the total USA prison population) that the optics look wobbly to me.

Posted by: Daniel | Apr 25, 2014 2:29:04 PM

▼ BILL OTIS ▼
is blogging daily @ http://www.crimeandconsequences.com/crimblog/

Luke 13:3,5

Posted by: Adamakis | Apr 25, 2014 2:31:49 PM

I checked out his latest post. Sad to say, it is the same old stuff. At bottom, Bill peddles in arguments that prove too much. That there are many offenders for whom very long sentences are appropriate, of course, does not mean there are not many for whom the blunt cudgle of mandatory minimums has resulted in very excessive settlements. So, even accepting Bill's premise that more incarceration has substatially lowered crime rates (and even Bill acknowledges the causal connection is complex), that is not inconsistent with the sort of narrowly tailored program DOJ has put in place to address situations where mandatory minimums and other sentence rules have been applied in an over-inclusive way. Bill never explains what he finds lacking in this reasoning.

Another problem with Bill's approach is that his theme that some who are released early will re-offend also proves too much. Whenever we decide to sentence those who commit serious crimes to anything less than LWOP, we are making the judgment that the costs of imprisionment outweigh the costs that come from the crimes of those who will re-offend after we do not lock them up for life. It would be an irrational, and very unfair, system if we applied Bill's reasoning to lock up all serious offenders for life, and I don't think Bill would argue otherwise. That said, what is the reasoned objection to making the same cost-benefit analysis for those who are currently incarcerated? Indeed, this is a very good argument for re-instituting parole, to allow re-evaluation of sentences in light of changed circumstances. Sure it would be optimal if Congress would act, but Congress is so disfunctional, it is hard to count on that. And there are simply too many folks in prison who don't need to be there not to act with the pardon power.

All in all, Bill strikes me as a bright guy, who is so blinded by ideology, that he seems to disregard (and never really engages) on points that are pretty hard to reject entirely. With Bill's background and expertise, he could be a valuable resource in efforts to seek the right balance, but, unfortunately, he instead takes incredibly absolutist positions that do not move anything forward. Wouldn't he contribute more if he engaged more granularly on how we might address the excesses of our sentencing policies, without throwing out the good with the bad. The sky is not always falling.

Anyone out there really disagree with this assessment?

Posted by: Liberty Lawyer | Apr 25, 2014 5:39:44 PM

"but, unfortunately, he instead takes incredibly absolutist positions that do not move anything forward."

I don't agree at all. In my view the Republican party has turned getting their back up into an art form. The country has generally shifted to the right over the last fifty years because Republican's get their back up and then the Democrats--wanting to look liberal and tolerate--cave into their demands. Sadly but predictably accommodating has only encouraged this recalcitrant behavior--of which this Bundy fellow is only the latest of innumerable iterations.

So why should someone like Bill engage "more granularly" in the conversation? He has everything to lose and nothing to gain from such a strategy. Besides, by this point in time the habit has become so conditioned I doubt he could change even if he wanted too. The only thing that will change someone like Bill is when the public gets sick of their shit and throws them out of office once and for all. I'm not holding my breath.

Posted by: Daniel | Apr 25, 2014 6:05:34 PM

We can stop the Otis-bating any time now.

Posted by: Michael Drake | Apr 25, 2014 6:38:23 PM

I don't look at this as baiting. Bill makes very provocative statements but seems to have no interest in discussion about middle ground. What is his game anyway? He has an academic post and seems to have a bent for policy, but argues like a lobbyist or lawyer who is being paid by a profit-seeking entity, not like an actual scholar. Does he get paid by the private prison industry to advocate his positions, repeat talking points, and brook no discussion of pragmatic solutions? Anyone know what drives him? Was he a crime victim himself? Seems an interesting and intelligent, but somewhat mysterious character. But I am not a veteran of these wars.

Posted by: Liberty Lawyer | Apr 26, 2014 12:05:24 AM

Fair points, LL. But the previous comments still read like baiting.

Posted by: Michael Drake | Apr 26, 2014 7:10:31 AM

Question Please. Sentence: 13yrs Served 2 & 1/2 yr to-date Drugs, poss. of firearm

The gun was laying on a table & he was selling to a drug police.

My son has no previous record of anything.

I think it's called a first time offender/non violent

Will he be included in the early release you are fighting for?

I might add he was an honor student all through highschool, and was awarded a scholarship to be a doctor. He attended 2yrs. and then met someone who introduced him to drugs. He was always a good son & it is so hard to believe this long prison term has happened to him. Thank You for all you do,

Posted by: Pam Jones Steehler | Apr 26, 2014 4:05:59 PM

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