« "How the states can show the way: Participating in criminal justice reform, the states have saved over a billion dollars" | Main | SCOTUS to confront implication for immigration statute of Johnson vagueness ruling »

January 16, 2017

After reviewing tens of thousands of requests, Obama Administration reportedly finds a few hundred more prisoners worthy of clemency

Anyone hoping Prez Obama would go out of office this week with a huge clemency bang will likely be disappointed to see this new Washington Post report headlined "Obama to commute hundreds of federal drug sentences in final grants of clemency."  I have been assuming Obama would make news with a few hundred more grants, but I know some advocates were hoping there would be perhaps thousands of commutations as Obama heads for the Oval Office exit.  Here instead is what we can expect after seemingly a whole lot of work by a whole lot of lawyers and DOJ officials:

Justice Department officials have completed their review of more than 16,000 clemency petitions filed by federal prisoners over the past two years and sent their last recommendations to President Obama, who is set to grant hundreds more commutations to nonviolent drug offenders during his final days in office.

“Everyone has killed themselves here to get the final recommendations to the president,” Deputy Attorney General Sally Q. Yates said in an interview. “We were in overdrive. We were determined to live up to our commitment. It was 24-7 over the Christmas break.” U.S. Pardon Attorney Robert A. Zauzmer has not taken a day off since Yates brought him on in February 2016 to sift through the backlog of thousands of petitions. From her home in Atlanta, Yates said she reviewed hundreds of petitions during the holidays.

As President-elect Donald Trump prepares to take office, Justice officials worry that his administration will dismantle Obama’s clemency initiative, which has resulted in the early release of 1,176 drug offenders who were sentenced under the severe mandatory minimum laws passed in the 1980s and 1990s during the nation’s “war on drugs.” More than 400 were serving life sentences. Yates said Obama will grant “a significant” number of commutations this week, but would not specify a number. Several people close to the process said it will be several hundred.

Those officials also fear that the next attorney general may undo new criminal justice policies. Then-Attorney General Eric H. Holder Jr. put in place a policy three years ago to reserve the most severe drug-offense penalties for high-level or violent drug traffickers — and no longer charge low-level, nonviolent drug offenders with crimes that impose severe mandatory minimum sentences. Justice Department data indicate that prosecutors are now focusing on more-serious drug cases, and there have been fewer charges that carry mandatory sentences.

Neither Trump nor his attorney general-nominee, Sen. Jeff Sessions (R-Ala.), has said what actions might be taken on drug charging policy or clemency, but during his campaign, Trump criticized Obama’s initiative to grant commutations. “Some of these people are bad dudes,” he said. “And these are people who are out, they’re walking the streets. Sleep tight, folks.”...

At several points during the past two years, it appeared that Obama’s clemency initiative might have been derailed, partly by a lack of resources but also by a cumbersome review process. After Holder and then-Deputy Attorney General James Cole began the effort in the spring of 2014, thousands of inmates applied. To help them with their petitions, outside lawyers formed an organization called Clemency Project 2014, which includes Families Against Mandatory Minimums, the American Civil Liberties Union, the American Bar Association and the National Association of Criminal Defense Lawyers.

About 4,000 volunteer lawyers signed up to help in what has become one of the largest pro bono efforts in the history of the legal profession in the United States. Once the lawyers submitted the petitions, the U.S. pardon attorney made recommendations to the deputy attorney general, who reviewed the cases and sent them to the White House counsel, who also reviewed them before choosing which ones went to Obama.

When Yates arrived at Justice in the spring of 2015, the clemency program was overwhelmed and bogged down. Advocates criticized the inefficient process and urged the Obama administration to pick up the pace for the inmates waiting for relief from unfair sentences. “There wasn’t an apparatus set up,” Yates said. “When I arrived, they were doing the best they could . . . but we didn’t really have a playbook.”

Early last year, more than 9,000 clemency petitions were pending, and the pardon attorney at the time was so frustrated that she quit.  Yates brought on Zauzmer, a longtime federal prosecutor, who prioritized applications so that Justice lawyers could focus on inmates who met the criteria: Inmates had to have served at least 10 years; had no significant criminal history; no connection to gangs, cartels or organized crime; and probably would have received a “substantially lower sentence” if convicted today.

“These are big decisions that you’re making,” Yates said, alluding to the public-safety risks and the need to provide a “sophisticated analysis” to the president. “If it’s to let someone out of prison early, earlier than what their original sentence was, you’ve got to be careful about those decisions,” she said. “There’s lots of people whose current offense or conviction is a nonviolent drug offense . . . but you have to look at their past as well and at their criminal history.  You have to look at their conduct [in prison].”

Not all inmates who have been granted clemency will be released immediately or even in a number of months. Last summer, the Obama administration began granting clemency to some inmates by reducing their sentences; in some cases, they will remain in prison for years.  At the end of August, Yates announced that she would review and give Obama a recommendation on every petition from a drug offender that was still in the department’s possession at that time — about 6,195 petitions.  She did that, and included several hundred petitions received through Sept. 15, after her cutoff date.  She also reviewed petitions that came in as late as Nov. 30 from drug offenders serving life sentences. By last Friday, the final number of petitions reviewed was 16,776. “Sally deserves a lot of credit,” Holder said in an interview. “She set this goal of looking at every drug-clemency petition, and they accomplished that.”

I want to give DAG Yates and Pardon Attorney Zauzmer lots and lots of credit for all their efforts, and I will also give some credit to Prez Obama for ultimately making clemency an 11th hour priority.  But given that Prez Obama set of modern record for fewest clemencies during his first term in office, and especially because he leaves in place the same troublesome clemency process that has contributed to problems in the past, I will still look at Obama's tenure largely as an opportunity missed.  

January 16, 2017 at 11:28 PM | Permalink

Comments

Hi! Serving the West Michigan area since 2003, Van Tubergen, Treutler & Hayes is among the most successful law firms in Grand Haven, Muskegon, Holland & West Michigan area. With broad experience in a wide range of legal disciplines such as Bankruptcy, Criminal Law, Divorce, Personal Injury & Small Business law, our Attorneys service our client’s needs both locally and regionally.

Posted by: Michael Van Tubergen | Jan 17, 2017 1:35:17 AM

"modern record for fewest clemencies during his first term in office"

https://www.justice.gov/pardon/clemency-statistics

Posted by: Joe | Jan 17, 2017 10:18:32 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB