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April 21, 2014

Is Prez Obama likely to grant clemency to "hundreds, perhaps thousands" of imprisoned drug offenders?

The question in the title of this post is prompted by this notable new and lengthy Yahoo News article headlined "Obama plans clemency for hundreds of drug offenders: Barbara Scrivner's long quest for mercy tests a president's will — and her own faith." The article begins with focus on a woman deep into "serving a 30-year sentence in federal prison for selling a few ounces of methamphetamine," but goes on to discuss drug sentencing more generally. And these excerpts quoting a "serious administration official" really caught my attention:

Now, in his final years in office, Obama has trained his sights on prisoners like Scrivner, and wants to use his previously dormant pardon power as part of a larger strategy to restore fairness to the criminal-justice system. A senior administration official tells Yahoo News the president could grant clemency to "hundreds, perhaps thousands" of people locked up for nonviolent drug crimes by the time he leaves office — a stunning number that hasn't been seen since Gerald Ford extended amnesty to Vietnam draft dodgers in the 1970s.

The scope of the new clemency initiative is so large that administration officials are preparing a series of personnel and process changes to help them manage the influx of petitions they expect Obama to approve. Among the changes is reforming the recently censured office within the Justice Department responsible for processing pardon petitions. Yahoo News has learned that the pardon attorney, Ronald Rodgers, who was criticized in a 2012 Internal watchdog report for mishandling a high-profile clemency petition, is likely to step down as part of that overhaul. Additional procedures for handling large numbers of clemency petitions could be announced as soon as this week, a senior administration official said, though it could take longer....

When it came to using his only unfettered presidential power — to pardon felons and to reduce the sentences of prisoners — Obama was incredibly stingy in his first term. Vanita Gupta, deputy legal director of the American Civil Liberties Union, calls his record on mercy "abysmal." He pardoned just 22 people — fewer than any modern president — and commuted the sentence of just one. An applicant for commutation like Scrivner had just a 1-in-5,000 chance of getting a reduced sentence with Obama in his first term — compared with a 1-in-100 chance under Presidents Reagan and Clinton, according to an analysis by ProPublica.

According to former and current administration officials, the fault for this lay mostly at the feet of the Office of the Pardon Attorney, a small corner of the Justice Department that sifts through thousands of pardon and commutation petitions each year. The pardon attorney, former military judge Ronald Rodgers, sends his recommendations of whether or not to grant the petitions to the Deputy Attorney General’s office, which then sends them on to the White House. The pardon attorney was recommending that the president deny nearly every single petition for a pardon or a reduced sentence, according to one senior official in the Obama administration....

But even though the president was almost certainly aware that the pardon process was deeply flawed, he took no steps to fix it. In 2009, Obama’s top lawyer, Gregory Craig, drafted a proposal urging a more aggressive use of the presidential pardon and clemency power, and calling the current system broken. One of Craig's recommendations was to take the pardon attorney's office out of the Department of Justice entirely, so that the people vetting clemency petitions were not so close to the system that put prisoners away in the first place. "I was of the belief that the current system for making pardon decisions was broken and it needed to be reformed," Craig said. His suggested reforms weren't implemented, and he left the White House that year....

Near the end of his first term, Obama expressed his frustration with how few positive clemency petitions were landing on his desk. He began meeting with White House Counsel Kathy Ruemmler and Holder to discuss how his pardon power could fit into his larger strategy of making the criminal-justice system fairer. (In mid-December, Holder followed up with a memo to Obama laying out his priorities for a second term in which he endorsed a more robust use of the pardon power as part of a broader criminal-justice reform initiative.) Over a series of five or 10 discussions, the president said he wanted more recommendations for pardons and commutations getting to his desk. The president complained that the pardon attorney's office favored petitions from wealthy and connected people, who had good lawyers and knew how to game the system. The typical felon recommended for clemency by the pardon attorney was a hunter who wanted a pardon so that he could apply for a hunting license....

[In] February, the Justice Department announced a new push for clemency for nonviolent drug offenders — an initiative that came out of Obama's meetings with Ruemmler and Holder. Deputy Attorney General Jim Cole solicited private defense attorneys around the country for more petitions for mercy from prisoners serving lengthy sentences for drug crimes that would most likely be prosecuted differently today, due to changes in the law. A group of advocates have created "Clemency Project 2014" to organize the petitions and send them to the Justice Department — they expect thousands to pour in....

But questions still remain about whether the pardon attorney's office is actually capable of fairly and quickly processing Scrivner's and the thousands of other expected petitions. Holder has asked for seven additional staffers for the office in his 2015 budget request, but it's unclear when they would start.

Meanwhile, more than a year after pardon attorney Rodgers was called out by the Justice Department for misrepresenting Aaron's petition to the White House, the former prosecutor and military judge is likely to finally be pushed out and replaced, a senior administration official tells Yahoo News. Rodgers was not present in a March meeting of the Justice Department, White House officials and advocates about "Clemency Project 2014," suggesting that he was already being internally marginalized.

Advocates have long been skeptical that a significant number of clemency petitions will actually get processed quickly if the current pardon attorney remained in place, given the entrenched culture there. A former pardon attorney's office employee said he believes the office could try to run out the clock on the petitions, knowing full well that the president has only a few years left. New leadership could change that....

Last month, the president walked into the East Room to greet dozens of U.S. attorneys who traveled to the White House to discuss criminal-justice issues. The president told them he was expecting an influx of clemency applications for his new push, and warned that he wanted them to personally examine them all and not "reflexively" deny them. "I take my clemency authority very seriously," he told them.

With just a few years left of Obama's presidency, Scrivner, and others, will soon find out if he means it.

A few of many recent and older posts concerning federal clemency practices:

UPDATE: Though balky blogging software precluded adding comments and updating this post, I can finally now post this link to an official statement from the Justice Department and AG Holder about still-emerging clemency plans. here is how it starts:

In an important step to reduce sentencing disparities for drug offenders in the federal prison system, Attorney General Eric Holder on Monday announced that the Justice Department will soon detail new, more expansive criteria that the department will use in considering when to recommend clemency applications for President Obama’s review.

In anticipation of the increase of eligible petitioners, the Justice Department is preparing to assign lawyers -- with backgrounds in both prosecution and defense – to review the applications. “The White House has indicated it wants to consider additional clemency applications, to restore a degree of justice, fairness and proportionality for deserving individuals who do not pose a threat to public safety,” said Attorney General Holder in a video message posted on the department’s website. “The Justice Department is committed to recommending as many qualified applicants as possible for reduced sentences.”

Later this week, Deputy Attorney General James M. Cole is expected to announce more specific details about the expanded criteria the department will use and the logistical effort underway to ensure proper reviews of the anticipated wave of applications.

April 21, 2014 at 12:28 PM | Permalink


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Gee, maybe would get a bunch of retired federal criminal justice professionals (from all sides of the process) to volunteer to assist with screening and/or initial review. I would wager that several contributors to this site might be interested in so assisting.

Posted by: alan chaset | Apr 21, 2014 6:26:35 PM

A systemic problem needs a systemic solution. Overincarceration is being recognized as a problem that needs multiple solutions. One of those solutions is systemic or group clemency and one is sentencing reform.

These two ideas have bi-partisan support and the devil is in the details. I think that the DOJ and Congress are beginning to recognize the growing support for a systemic solution.

Posted by: beth | Apr 21, 2014 6:50:46 PM

Bi partisan support? More akin to bi polar support. The RepubliCons are praying each day for the day that Obama begins granting clemency to convicts. The next Democratic candidate will have to answer for it. What does Hillary want him to do?

Posted by: Liberty1st | Apr 21, 2014 8:35:40 PM

Eh, we're still far enough away that I don't think clemency will hurt the next candidate. Plus, I think people are tired of the drug war. Sure, those who dislike Obama will dislike him for this, but I don't think it'll change anything.

Posted by: Erik M | Apr 21, 2014 8:44:06 PM

I think Bill Otis has been saving his strength and will be availabel just in time this summer, to give a hand in processing thousands of federal drug commutations.

I am sure he would want to participate in this worthwhile project.

Posted by: Midwest Guy | Apr 21, 2014 10:45:14 PM

I'll reserve judgment until I see the list of those pardoned. Certainly, in the whole of the federal prison system there are people for whom we can say, "Enough is enough."

And no, I am not going soft. This is consistent with previous posts of mine. Those of us who believe in stiff punishment for serious wrongdoing, IMHO, should be open to releasing those whose sentences, with the benefit of hindsight, seem too harsh.

Posted by: federalist | Apr 21, 2014 11:03:59 PM

Here it comes, the tsunami of crime. A black racist, pro-criminal President will loose vicious drug gang bangers. Naturally, law abiding black citizens will pay the highest price. We will all be under siege by these Democratic Party constituents as Democrat run Chicago is now. Little kids playing in front of their homes will get shot in their drive bys.

Posted by: Supremacy Claus | Apr 23, 2014 4:18:40 AM

President Obama is not doing anything to forgive those who committed a nonviolent unfortunate.

Do not forget that the president is a Christian and one of the Christian duties is the willingness to forgive and believe that everyone deserves a chance to change.

I think the law of forgiveness and pardon will be a banner to remember more clearly his government think everything deserves a second chance.

In horabuena Mr. President.

Natalia Lopez

Posted by: Natalia Lopez - Colegialas | Apr 23, 2014 11:18:51 AM

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