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April 11, 2016

Has anyone calculated trial rates — or other notable features — of 248 offenders getting Obama commutations?

The question in the title of this post represents my not-so-direct effort to encourage any and all hard-core sentencing researchers — as well as folks involved with Clemency Project 2014 and the St. Thomas Federal Commutation Clinic and the NYU Clemency Resource Center  and the CUA Clemency Project — to consider taking a deep dive into case processing realities and all sorts of other offense and offender features of the 248 federal prisoners who have now had their lengthy prison sentences commutted by President Obama.  The focus on trial rates in my title query is based to my (educated) speculation that those prisoners who have so far received commutations may have opted to have their guilt tested at trial at a rate quite different from the bulk of convicted federal offenders.   

Roughly speaking, only about three out of every hundred convicted federal offenders now have their guilt estabished at trial; all the others admit guilt though a plea.  (This chart from the US Sentencing Commission provides these data details on guilty pleas and trial rates for the last five fiscal years.)  But my own limited experiences seeking to challenge some extreme federal sentences have often involved federal defendants who exercised their rights to trial.  Consequently, I would be quite surprised if it turns out that only around 10 of the 248 federal prisoners whose lengthy prison sentences have been commutted by President Obama had gone to trial.

Unfortunately, this official list of "Commutations Granted by President Barack Obama" does not indicate if the offenders' sentences were imposed after a plea or a trial.  Nevertheless, with so many institutions and individuals now so interested in looking at the modern exercise of federal clemency, I am hopeful someone has started or will soon start trying to figure out if there are some distinct and distinctively important features of those cases now garnering the attention of President Obama.

April 11, 2016 at 12:44 AM | Permalink


One approach to explore your theory would be to search LEXIS or WESTLAW for appellate opinions using each commuted person's name. As we know, it is standard practice in Federal prosecutors' plea agreements to get the defendant to waive his right to file an appeal. If there is an appellate opinion, it will specify whether the defendant went to trial or pleaded guilty; just the existence of an appellate opinion in the defendant's name means (almost by definition) that he went to trial. You could get a student research assistant to do that research in less than 5 afternoons. Give it a try and let us know what you find, Doug!

Posted by: Jim Gormley | Apr 11, 2016 9:19:29 AM

Thanks, Jim. I had the very same thought, and this post was meant to prod all of the institutions with lawyers and law students focused on clemency to perhaps be able to get 5 students to get this done in one afternoon this week.

Posted by: Doug B. | Apr 11, 2016 10:23:27 AM

I am a Screening Committee reviewer on CP 14 and can tell you that the cases are overwhelmingly defendants who took their cases to trial, and mostly those who had both 851 papers filed against them, requiring mandatory LIFE. The defendant who plead guilty is the infrequent exception.

The Holder memo fixes some aspects of this "trial penalty" problem, but not all -- not by a long shot. It's something that needs to be closely reviewed and considered in the context of criminal justice reform.

Posted by: Atticus | Apr 11, 2016 3:06:32 PM

I agree with Atticus - both submissions I filed (one granted and one pending) were trials after 851 enhancements were filed.

Posted by: Don't Ask | Apr 11, 2016 4:21:58 PM

Just a quibble: the fact that there is an appellate opinion in the defendant's name doesn't almost by definition mean there was a trial. Many, many defendants appeal their sentences after pleading guilty.

Posted by: appellate AFPD | Apr 12, 2016 9:04:02 AM

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