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February 15, 2017

Interesting Q&A about Prez Obama's clemency efforts with former White House counsel Neil Eggleston

DownloadThe Marshall Project has this notable new piece that reviews Prez Obama's clemency work via an interview with former White House counsel Neil Eggleston. The piece is headlined "The Man Who Ran Obama's Clemency Machine: 'He felt strongly that this was a gift, and the gift had to be earned.'" Here are excerpts:

From one angle, former President Barack Obama was the most merciful president in U.S. history, granting commutations to more than 1,700 federal prisoners.... But his final tally was also far below earlier expectations, given that former Attorney General Eric Holder once speculated that the final number of clemency grants could reach 10,000 — one of every 19 federal prisoners. Obama also received more petitions for clemency than any recent president.

Blame has been passed around, much of it centering on the bureaucracy that emerged to handle the deluge of potential cases, as well as the role federal prosecutors played in the process. In the end, attorneys who felt they had submitted strong cases to the president often wondered why they lost. “In granting so many fewer petitions than originally projected, the administration may have done more to exacerbate the arbitrariness of the sentencing regime writ large than to remedy it,” one of those attorneys, Sean Nuttall, wrote recently at The Marshall Project.

One key figure in the process was Neil Eggleston, who served as White House counsel from April 2014 through the end of Obama’s term. We asked him to discuss the process from the inside....

How closely did President Obama look at each of the applications for clemency he received? And what did you learn about him based on how he handled them?

I would give him memos on the cases, and he would spend a long time on each one. For a significant number, he was fine with my recommendation. For others, he would say: “Why are you recommending this person to me? Look at his conduct in prison, look at his prior convictions. I’m uncomfortable that this guy is going to take advantage of a second chance.”

Or the alternative: There were times when the deputy attorney general may have recommended in favor of a commutation, and I recommended against it, and [Obama] would call me in and ask: “Why don’t you agree with this one?” Or he’d say: “Look there’s this prior conviction, I’m troubled by it, can you get me more information?”

He was really into the details. There were two parts to the way he thought. The first was he just thought a lot of these sentences from the 90’s and 2000’s were excessive. But he also felt very strongly about the idea of rehabilitation and second chances. It wasn’t enough that the person had just gotten too lengthy a sentence. He also wanted make sure these were people who would benefit from a second chance. So if someone didn’t do any programming, got into fights, had a lot of infractions, etc., I think the president was concerned they would be unlikely to do anything but go back to their life of crime when they got out. He felt strongly that this was a gift, and the gift had to be earned.

One common criticism of the process was that there were arbitrary outcomes, that two people with similar cases could be granted and denied clemency.

I think the thing the outside commentators didn’t really understand was that I had more information about these people than others did, including, frankly, their lawyers. I had records of how they performed in prison, and information about their prior crimes. And when people say there was arbitrariness it’s because they didn’t know factors that I knew. All 1,700 went through me and the small group of lawyers underneath me. And ultimately I didn’t want people in jail thinking to themselves, “How can this be?” So is there some arbitrariness? Humans making decisions will not always be perfect. But I reject the notion that there was arbitrariness....

Were you afraid that a single heinous crime by one of these released men or women would derail the whole program?

We never mentioned the words “Willie Horton.” But the answer is yes — very much so. The president wanted to make sure these were people who would take advantage of their second chances, but part of that was making sure they wouldn’t go back to jail. In the letter the president sent to released prisoners, he wrote to them that their choices “will also influence...the possibility that others in your circumstances get their own second chance in the future.” He was saying: “If you mess up, I may not be able to give clemency to other people.” It’s pretty explicit....

One criticism was that it was strange to have prosecutors — from the same department who got these sentences in the first place — weigh in on clemency decisions. Did you think about this?

I think that criticism was completely misguided and based on some sort of theoretical, potential problem. The fact is that Deputy Attorney General Sally Yates, a 27-year Department of Justice prosecutor out of Atlanta, was a very strong supporter of this initiative. Loretta Lynch, too. The people who criticized their involvement did so on a theoretical conflict — not an actual conflict. It’s just not true.

That suggests the Department of Justice under incoming Attorney General Jeff Sessions could rapidly go in another direction and oppose the use of clemency.

I know Sessions publicly opposed our initiative. I hope that I’m wrong, but I worry that given his comments, this will not be pursued by the new administration. It’s going to require them to decide this is something they want to continue. I hope they do.

February 15, 2017 at 08:46 AM | Permalink


Well, one guy has re-offended. Surprised Mr. Eggleston wasn't asked about that.

Posted by: federalist | Feb 15, 2017 9:34:46 AM

"A gift has to be earned" what an odd way to put it.

Posted by: Soronel Haetir | Feb 15, 2017 9:36:09 AM

One could really be harshly critical of Obama here--he apparently thought that the sentences in general were unjust (that's what he said when he wanted to smear people who had supported them in his "im the wisest guy in the room" shtick), but then he didn't have the guts to follow through on his beliefs.

Im not surprised.

Posted by: federalist | Feb 15, 2017 9:43:54 AM

federalist: if you as chief executive thought a crack dealer got an unfairly harsh sentence in 2000 --- say 25 years when every comparable cocaine dealer got 15 or less --- but then was a lousy prisoner in lots of ways for 15 years, would you still think it appropriate to grant a commutation to make that unfairly harsh sentence "fair" even though it would lead to release of a person who had not "earned" his gift of clemency?

As you know, Wendell Callahan was a recipient of an across-the-board cut of crack sentences that were only loosely screened for obvious public safety concerns. In this clemency setting, the screening seems even more thorough and were more central to how Obama decided which crack offenders would get breaks. It seems you are eager to damn both approach, and so I am curious to know how you think a system should approach remedies for extreme (and costly and perhaps counter-productive) sentencing schemes that later are repealed after been seen by nearly everyone as unfair.

Posted by: Doug B. | Feb 15, 2017 12:41:38 PM

Again, and again. Someone is doing well on insulin for years. Let's stop the insulin.

Someone is doing well inside the structure of prison. Let's stop prison.

Diabetes is a chronic condition involving a missing hormone. It will never be naturally replaced.

Antisocial personality is a chronic condition involving missing brain functions. They will never be naturally replaced, as known since the 1850's.

What would you call a doctor who suggests the first? A moron.

What would you call the Harvard Law grad President Obama? A huge moron, a mental cripple, stupider than a student in Life Skills class. The latter student would know better than to pull the stunt President Obama did.

Posted by: David Behar | Feb 15, 2017 12:48:55 PM

Doug, I don't think it's improper to criticize the gulf between Obama's statements and what he actually did without taking a position on whether his policy was good or bad. Obama, in his annoying way, acted like some Solomon dispensing judgment on previous policies--then he, in a sense, acted basically the same way. I know you see the hypocrisy here, so I don't see much need to go deeper.

As for Wendell Callahan, a prosecutor and federal judge had to sign off on the reduction, so what I pointed out there was that a promise that only non-violent people would be released turned out to be false.

Obama tried to have his cake and eat it too. I would think, Doug, that you would have seen this and commented on it.

My approach to clemency would be to acknowledge that there are two types of unfairness--one, where a criminal got an unjust sentence to start with, and there would be a strong presumption that the sentence would be cut and two, those who, in light of subsequent events (good behavior, etc.) have shown that a sentence was no longer necessary. I wouldn't try to score cheap political points (and smear people) and then turn around and leave a lot of those sentences in place.

I'd be interested in seeing a Doug Berman post on exactly what you think of the Eggleston interview. Would be interesting.

Posted by: federalist | Feb 15, 2017 1:09:56 PM

federalist, Congress passed the FSA in 2010 with lots and lots of statements that the old 100-1 crack/powder ratio was unjust. It also enabled more than 10,000 persons sentenced under the 100-1 guidelines get retroactive relief, but it did not provide for retroactive relief for some offenders subject to 110-1 mandatory minimum who really got hammered by the trial penalty or in other ways. Against that backdrop, I do not see how Obama granting clemency relief to a good number (but not all) crack defendants is "act[ing] like some Solomon dispensing judgment on previous policies." Indeed, I sense he started with "a strong presumption that the sentence would be cut" in most of those case, but I have not been in a position to do a systematic review of all the decision here.

I am not really defending Obama here, as I think it would have been wise from the start of the Obama term to create a clemency board independent of prosecutors to implement the kind of clemency approach you recommend, federalist. But I do think it at times too easy to sit on the sidelines and criticize the Prez (of either party) for the way they seek to balance principle and politics. I know you are eager to criticize Obama for "tr[ying] to have his cake and eat it too," and I am eager to criticize him for not creating a better and more enduring process for revitalizing clemency in the 21st Century. But I do think Obama should get credit for doing something here.

As for the Eggleston interview, it struck me as the typical DOJ/Beltway insider interview that does little more than make the case for why an insider approach to a problem should be considered satisfactory. Is there something else that jumped out as noteworthy to you, federalist?

Posted by: Doug B. | Feb 15, 2017 5:11:10 PM

Doug, once again, I think you read my comment too quickly. I was pointing out the gulf between Obama's statements about federal law generally (i.e., his obnoxious mix of "holier than thou" and his condescending "I am more wise than all you people who concocted this mean sentencing regime) with his actions here. If, as he posited, sentences were flat-out unjust (with plenty of aspersions against those with responsibility), then there is a gap between his commentary and his actions. In other words, he's a hypocrite. And what makes it even worse---he gets a trifecta: he gets to slam the ancien regime, look nice (by prettying up many of the people who got clemency) and protect his back end by keeping in place many of the sentences resulting from a system he decried as unjust.

It's cynical. The reality is that the crack-powder distinction resulted from a perceived crack epidemic and serious violence in our cities (remember, NYC had well over 2000 murders per year back in the day). So Obama's post hoc attacks were unfair. And lo and behold, Obama's actions here actually validated the ancien regime--if there were so many substantively unjust sentences, why not more clemency?

Like I have always said, I don't necessarily disagree with Obama's decisions here--I presume that people looked at these sentences and made sound judgments. What I don't like is the propaganda (non-violent), the failure to acknowledge the disconnect between his extreme anti-gun positions and clemency for criminals and the cynical strategy of railing against the system, yet, in the vast majority of cases, agreeing with it.

Posted by: federalist | Feb 16, 2017 10:12:35 AM

federalist, I know you like to attack Obama for everything, but his was not the only one attacking the crack-powder 100-1 ratio --- indeed, everyone from current AG Jeff Sessions to the full bipartisan US Sentencing Commission starting in 1995 to the near unanimous 500+ voters in Congress for the FSA concludes that old crack sentences "were flat-out unjust."

Obama's decision to grant clemencies to only about half of those still serving prison sentences under the old crack ratios is not a validation of that regime as much as a (proper?) recognition that his clemency power --- at this particular political and legal moment --- ought to attend to the factual particulars of each case rather than be a means for categorical reductions.

I get you dislike Obama's propaganda, just like you dislike most everything that gets said and done by Democrats. Just another example of your essential partisan lens. Moving forward, how would you urge Prez Trump ought to use his clemency powers?

Posted by: Doug B. | Feb 16, 2017 3:45:26 PM

Doug, Obama's railings against the criminal justice system were over-the-top and involved nasty demagoguery. You can name-call about partisanship all you want--don't care.

If Obama had limited his criticism to saying that a reaction to the crack scourge led to a sentencing regime that turned out to be unjust, that would be ok--but Obama's demagoguery (e.g., "just-us" system) was ugly and nasty.

As for clemency being individualized--that doesn't seem to comport with his fierce urgency of now BS and his demagoguery.

As for Trump, I'd love to see him use the pardon power to restore civil rights for people who have lived crime-free lives for a long time.

And Doug, I don't like propaganda from elected officials. Full stop.

Posted by: federalist | Feb 16, 2017 4:45:41 PM

I hear what you are saying, federalist, about propaganda from elected officials. Seems like an especially big problem in recent years.

Posted by: Doug B. | Feb 16, 2017 6:33:16 PM

"propaganda from elected officials"

How has it been different in "recent years" as compared to the past?

Those charming black and white films you can find on YouTube funded by the government etc. can be deemed "propaganda" if you want. The term implies something misleading.

Was government back in the Reefer Madness days less misleading about things?

Posted by: Joe | Feb 17, 2017 11:24:05 AM

Maybe the operative word is "seems."

Posted by: Joe | Feb 17, 2017 11:24:57 AM

Joe, here are two for starters:

"non-violent" and "one mistake" and the Obama clemency.

Or how about Xochitl Hinojosa spouting nonsense that USERRA enforcement was a high priority for DOJ. No one believes that.

Or the NOAA and chucking valid buoy data for unreliable ship data.

Posted by: federalist | Feb 17, 2017 12:01:45 PM

Doug Berman: "Seems like an especially big problem in recent years."

me: how different has it really been? [past propaganda cited]

federalist: provides a couple alleged examples of recent propaganda

Not overly helpful to get a sense of perspective of now & the past.

Posted by: Joe | Feb 18, 2017 9:36:10 AM

or Joe, I was responding to your "seems" comment . . . .

but no matter--you wanna defend those examples by invoking reerfer madness---go for it you hack

Posted by: federalist | Feb 18, 2017 11:18:10 AM

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