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September 5, 2017

US Sentencing Commission releases big new analysis of Prez Obama's 2014 Clemency Initiative

I am excited to see that the US Sentencing Commission has this morning released this big new report titled simply "An Analysis of the Implementation of the 2014 Clemency Initiative." I hope to find the time in the coming days to dig into many of the report's particulars; for now, I can just reprint the text of this USSC overview page about the report and add a few comments:

Report Summary

This report analyzes the sentence commutations granted under the 2014 Clemency Initiative.  It provides data concerning the offenders who received a sentence commutation under the initiative and the offenses for which they were incarcerated.  It examines the extent of the sentence reductions resulting from the commutations and the conditions placed on commutations.  It also provides an analysis of the extent to which these offenders appear to have met the announced criteria for the initiative.  Finally, it provides an analysis of the number of offenders incarcerated at the time the initiative was announced who appear to have met the eligibility criteria for the initiative and the number of those offenders who received a sentence commutation.

Key Findings

The key findings of this report are:

  • President Obama made 1,928 grants of clemency during his presidency.  Of them, 1,716 were commutations of sentence, more commutations than any other President has granted.

  • Of the 1,928 grants of clemency that President Obama made, 1,696 were sentence commutations under the 2014 Clemency Initiative.

  • The commutations in sentence granted through the Clemency Initiative resulted in an average sentence reduction of 39.0 percent, or approximately 140 months.

  • Of the 1,696 offenders who received a commuted sentence under the Clemency Initiative, 86 (5.1%) met all the announced Clemency Initiative factors for consideration.

  • On April 24, 2014, there were 1,025 drug trafficking offenders incarcerated in the Federal Bureau of Prisons who appeared to meet all the announced Clemency Initiative factors.  Of them, 54 (5.3%) received clemency from President Obama.

  • By January 19, 2017, there were 2,687 drug trafficking offenders who had been incarcerated in the Federal Bureau of Prisons when the Clemency Initiative was announced and who appeared to meet all the announced Clemency Initiative factors. Of them, 92 (3.4%) received clemency from President Obama.

Back in 2014 when the clemency initiative was announced and certain criteria emphasized (basics here), I had an inkling that the criteria would end up both over-inclusive and under-inclusive. I figured Prez Obama would ultimately not want to grant clemency to everyone who met the criteria announced and also would want to grant clemency to some who did not meet all the criteria. That said, I am still surprised that only 5% of those prisoners who got clemency meet all the criteria and that only about 5% of those prisoners who met all the criteria get clemency. (Based on a quick scan of the USSC report, it seems the vast majority of those who got clemency had some criminal history, which put most of the recipients outside the stated DOJ criteria.)

These additional insights and data points from the USSC report highlight what really seemed to move a clemency applicant toward the front of the line:

A review of the offenders granted clemency under the Initiative shows that at some point the Clemency Initiative was limited to drug trafficking offenders, as all the offenders who received commutations under the Initiative had committed a drug trafficking offense.  This focus was not identified when the Initiative was announced and no formal public announcement was made later that the Initiative had been limited to drug trafficking offenders....

Almost all Clemency Initiative offenders (95.3%) had been convicted of an offense carrying a mandatory minimum penalty.  Most (89.7%) were charged in such a way that the mandatory minimum penalty that applied in the case was ten years or longer.  Indeed, most of the Clemency Initiative offenders (88.2%) received a sentence of 20 years or longer, or life imprisonment.

In the end, then, it appears the 2014 Clemency Initiative turned out to be almost exclusively about identifying and reducing some sentences of some federal drug offenders subject to long mandatory prison terms. Somewhat disappointingly, this USSC report does not appear to speak to whether and how offenders who received clemency were distinct from the general federal prison population in case processing terms. My own rough research suggests that a great disproportion of those who got clemency were subject to extreme mandatory minimums because they opted to put the government to its burden of proof at trial rather than accept a plea deal. Also, if the goal ultimately was to remedy the worst applications of mandatory minimum sentences, it is not surprising that a lot of clemency recipients had some criminal history that would serve to both enhance the applicable mandatory minimum AND make an otherwise lower-level offender not eligible for statutory safety-valve relief from the mandatory term.

September 5, 2017 at 11:26 AM | Permalink

Comments

Isn't this a bit premature? Isn't the proof in the pudding--i.e., what these guys, collectively, do? Some have gone back to a life of crime.

I will say, unequivocally, that I hope that each and every one of these guys vindicates the faith that President Obama placed in him or her.

Doug, did the report note that there was a difference between how Obama sold the program (non-violent etc., one mistake) and the reality of those who got mercy?

Posted by: federalist | Sep 5, 2017 4:27:23 PM

federalist, you have often referenced how Obama "sold the program," but I am not sure of which sales pitch you are referencing.

Are you talking about DOJ's articulated 2014 priority criteria? The USSC report is focused specifically on the failure of the clemency grants to match up with those criteria (though one might dicker a bit with their accounting).

Or are you referencing something directly said by Obama or his team about his grants? Here is an example of such statements, but I see no mention what you mention: https://obamawhitehouse.archives.gov/blog/2015/03/31/upholding-principle-fairness-our-criminal-justice-system-through-clemency

Whatever you mean, I agree 100% that we ought to check back with these folks in a few years to see how good Obama was at this use of mercy. I am certain that some will get in trouble, but like you I hope not too many.

Posted by: Doug B. | Sep 5, 2017 4:59:20 PM

https://www.dailymail.co.uk/news/article-4855554/Daughter-foreign-diplomat-stabs-13-year-old-boy-twice.html

With respect to Obama, he did say that he was showing mercy to those who were "non-violent" (which morphed into latest crime was "non-violent) and that it was for people who made "one mistake" (but who had records).

Posted by: federalist | Sep 5, 2017 5:27:49 PM

1. Interesting story about a notable immunity

2. Do you have a link/context/cite for this Obama "one mistake" statement. I gig a quick google search and came up empty finding this a something Prez Obama said himself about his clemency granting decisions. Searching this blog just brought up a lot of comments by you complaining about a "one mistake" statement. I am not asserting this was not said by Obama, but I would be grateful for a link/cite to wherever you got this from.

Posted by: Doug B. | Sep 5, 2017 5:55:52 PM

I don't have a ton of time--as you'll recall, when they served up the initiative in 2014, the idea was non-violent offenders---Obama WH.gov statement in 2017:

"The majority were offenders sentenced for nonviolent drug crimes." Note the difference--at first the idea was that non-violent people would be let go--then it morphed into those who were serving time for a non-violent offense, which, of course, covered up the fact that they had a bunch of priors in many cases, which, in turn, undermines the "second chance" argument as well.

Posted by: federalist | Sep 6, 2017 9:41:08 AM

No worries about having better things to do, federalist, but I fear some of your attacks on Obama here are based in part on your own putting of words in his mouth like "one mistake." That said, a lack of violence and limited criminal history was part of the announced 2014 clemency initiative criteria: "2) They are non-violent, low-level offenders... 4) They do not have a significant criminal history; ... 6) They have no history of violence prior to or during their current term of imprisonment." And the USSC report does document ways in which these criteria were not central to who got and did not get a commutation.

In short, I think your criticisms and concern have some validity, but I think DOJ and Obama's talk about clemency was sufficient nuanced to be in the realm of standard government-speak/salesmanship.

Posted by: Doug B | Sep 6, 2017 10:37:50 AM

Ernest Spiller? I think his clemency demonstrated the fallacy of "non-violent" and "second chance." More like violent and fifth or sixth chance.

This is the same Administration that blew off USERRA and then said that it was the highest priority.

Posted by: federalist | Sep 6, 2017 7:14:18 PM

Any recidivism stats on the commutation beneficiaries?

Posted by: William Jockusch | Sep 11, 2017 12:58:30 AM

Any recidivism stats on the commutation recipients?

Posted by: William Jockusch | Sep 11, 2017 12:58:56 AM

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