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January 30, 2014

Deputy AG Cole's remarkable remarks to the NYSBA

Via an early New York Times article, I have already reported here on some of the clemency comments delivered today byDeputy Attorney General James Cole at the New York State Bar Association Annual Meeting.  But i have now had a chance to review the whole text of the speech delivered by Deputy AG Cole, which can be accessed here, and anyone interested in federal sentencing policy and reform should read the whole text.  Here are just a few sections that really caught my attention as a sentencing geek:

I want to talk with you today about the crisis we have in our criminal justice system. A crisis that is fundamental and has the potential to continue to swallow important efforts in the fight against crime. This crisis is the crushing prison population....

Over half of the federal prison population is there for drug offenses.  Some are truly dangerous people, who threaten the safety of our communities and need to be taken off the streets for a long time.  But others are lower level drug offenders, many with their own drug abuse issues, who fall into the all too common vicious cycle of drug abuse, crime, incarceration, release — and then the cycle repeats.

In addition, there is a basic truth that dollars are finite. Every dollar we spend at the Department of Justice on prisons — and last year we spent about $6.5 billion on prisons - is a dollar we cannot spend supporting our prosecutors and law enforcement agents in their fight against violent crime, drug cartels, public corruption, financial fraud, human trafficking, and child exploitation, just to mention a few.  In other words, if we don’t find a solution to the federal prison population problem, public safety is going to suffer.

Recognizing this dynamic, the Justice Department has been working hard to come up with solutions to stem the tide....

All of these Departmental efforts recognize the need for a broader, smarter approach to criminal justice.  We believe these efforts enhance our ability to protect our communities and maximize public safety.  These efforts not only ensure that we continue to be “smart on crime” from a limited resource perspective, but they also help to ensure that federal laws are enforced fairly.

And embedded in this issue of fairness is the consideration of sentence reductions for those who, at an earlier time, encountered severe and inflexible sentencing laws.

This brings me to another issue I want to address with you today and ask for your help. The issue is executive clemency, particularly commutation of sentence.  Commutation of sentence is an extraordinary remedy that is rarely used.  But it may be available in certain circumstances, including when an individual has a clean record in prison, does not present a threat to public safety, and has been sentenced under out-of-date laws that have since been changed, and are no longer seen as appropriate.

As I said earlier, our prisons include many low-level drug offenders.  Now, let there be no mistake, even the low-level drug offenders cause harm to people through their criminal actions and many need to be incarcerated. I don’t want to minimize the impact of their behavior.  Our prosecutors worked diligently, along with law enforcement agents, to collect evidence and charge these defendants, and then fairly and effectively obtained their convictions. T hey were properly held accountable for their criminal conduct. However, some of them, because of the operation of sentencing laws on the books at the time, received life sentences, or the equivalent of a life sentence, for limited conduct. For our criminal justice system to be effective, it needs to not only be fair; but it also must be perceived as being fair.  These older, stringent punishments, that are out of line with sentences imposed under today's laws, erode people’ s confidence in our criminal justice system....

[A]side from legislation, the President also has the ability to take executive action to positively impact the criminal justice system. A little over a month ago, the President commuted the sentences of 8 men and women who were sentenced under severe — and out of date — mandatory minimum sentencing laws....

But the President’s grant of commutations for these 8 individuals is only a first step. There is more to be done, because there are others like the eight who were granted clemency. There are more low-level, non-violent drug offenders who remain in prison, and who would likely have received a substantially lower sentence if convicted of precisely the same offenses today. This is not fair, and it harms our criminal justice system.

To help correct this, we need to identify these individuals and get well-prepared petitions into the Department of Justice. It is the Department’s goal to find additional candidates, who are similarly situated to the eight granted clemency last year, and recommend them to the President for clemency consideration.

This is where you can help. We are looking to the New York State Bar Association and other bar associations to assist potential candidates for executive clemency. We envision that attorneys will assist potential candidates in assembling effective and appropriate commutation petitions — ones which provide a focused presentation of the information the Department and the President need to consider — in order to meaningfully consider clemency for similarly situated petitioners. You each can play a critical role in this process by providing a qualified petitioner — one who has a clean record in prison, does not present a threat to public safety, and who is facing a life or near-life sentence that is excessive under current law — with the opportunity to get a fresh start.  We anticipate that the petitioners potentially eligible for consideration would include: non-violent, low-level drug offenders who were not leaders of — nor had any significant ties to — large-scale organizations, gangs, or cartels. We would also look for petitions from first-time offenders or offenders without an extensive criminal history.

January 30, 2014 at 07:42 PM | Permalink


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I am still waiting for someone to laugh! The Obama administration has had record numbers of commutation petitions and has denied them by the thousands. The answer is not simply more applications!

Posted by: P.S. Ruckman, Jr. | Jan 30, 2014 10:11:41 PM

Prof. Ruckman --

I don't disagree with a single word in your comment, but be of good cheer. I've been inside the Beltway for a long time, and all my instincts tell me many more pardons will be coming. Mark your calendar for the day after election day.

Posted by: Bill Otis | Jan 30, 2014 10:20:22 PM

It was a well done speech on a difficult topic politically. It does not offend a prosecutor who worked diligently to put some drug offender away for a life sentence to later consider commutation. By offend, I mean to commute the inmate does not detract from a job well done. Justice might have been done at the time of sentencing. But there are other outlets to let some guys off the hook after many years and to get the prison rolls down some.

Posted by: Liberty1st | Jan 30, 2014 10:33:36 PM


Betting on a higher number of pardons in the fourth and final year of any term is, historically speaking, a pretty safe bet. Expecting a huge pile at the very last minute (days, weeks) ... maybe not such a wise wager - George Washington's quirky behavior notwithstanding. It would not cheer me to see "many" per se, especially all bunched up at the end. That kind of behavior, in my view, attracts well deserved scrutiny and criticism. However, it would be something to see well thought out, carefully explained, systematic decision making, based on defensible policy goals. When all is said and done, frankly, I do not expect to be impressed, or very much pleased. I know some that are interested in this topic are want - with this latest commentary - to shoot off fireworks, for a variety of reasons. I just would not be one of those persons. The DOJ wants more commutations but just doesn't have enough applications? Doesn't pass the smell test. I am amazed no one in the media has noted the record number of commutation applications in 2013 !

Posted by: P.S. Ruckman, Jr. | Jan 31, 2014 12:59:43 AM

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