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January 5, 2015

Extraordinary review of messiness of Prez Obama's clemency push

Josh Gerstein has this extraordinary Politico piece which provides a terrific (and disconcerting) review of the Obama Administration's recent clemency activities.  The lengthy piece is a must-read for lots of reasons. It is headlined "Obama's drug-sentencing quagmire: Justice Department turns to ACLU, others to prepare thousands of commutation requests," and here is how it starts:

President Barack Obama’s sweeping plan to commute the sentences of nonviolent drug offenders who were caught up in the disparities in laws governing crack and powder cocaine is lagging, burdened by vague guidelines, lack of Justice Department resources and the unusual decision to invite advocacy groups like the ACLU to help screen applications, according to lawyers close to the process.

In the year since the Justice Department encouraged inmates to apply to cut short their sentences, more than 25,000 prisoners have come forward.  But when Obama announced his annual commutations last month, only eight were given.  That reflects deeper problems in the government’s process for reviewing sentences and determining which ones are, indeed, overly long because of the crack-powder distinction, according to those familiar with the system.

The piece includes lots of interesting and notable comments by various unnamed lawyers discussing how the President, the Justice Department, and the Clemency Project 2014 are handling matters. Here are excerpts with some of these quotes:

With so many thousands of petitions pending, the tiny number of commutations announced during the Christmas season prompted a new round of skepticism about the administration’s capacity to ease onerous drug sentencing.

“This is paltry,” said one lawyer familiar with the process. “It is very disappointing.”

“I’d be shocked if it skyrockets to 100 before [Obama] leaves office,” another added....

[DOJ] officials encouraged the groups forming the Clemency Project to recruit and train private attorneys to prepare applications. The organizations have instituted their own screening effort to try to determine if prisoners meet the criteria and to make sure the private lawyers spend time on meritorious cases....

Some liberal-leaning lawyers and clemency advocates ... say the private consortium has taken on an outsize, quasi-official role in the process and has an inherent conflict of interest: Project organizers want to get the strongest possible applications to the Justice Department, which may mean abandoning prisoners whose cases fall into a gray area.

“It bothers me that you have a group of private citizens who have an under-the-table deal with the deputy attorney general to help him do his job and the promise is, ‘We’re going to put your guys at the front of the list,’” one lawyer involved said.  “Instead of dealing with a process that’s already opaque and bureaucratic and too slow, they’ve added this additional layer that’s even more opaque and bureaucratic and too slow.”...

One benefit to the administration of its current approach of working with outside groups is that it could mute criticism from advocates wrapped up in the effort — at least as long as there seems to be a prospect of a meaningful wave of commutations.  “They’ve co-opted all the people who would usually be critics,” said one lawyer close to the project.  “You have that dynamic in play, and I’m not sure that’s a good thing.”

The Clemency Project groups insist their involvement hasn’t silenced them.

Though I am not too concerned about clemency critics being co-opted through the Clemency Project, I am concerned about what will be a poor allocation of pro bono lawyering efforts if 1,500 lawyers spend months and years working on clemency applications for thousands of offenders if Prez Obama ends up granting commutations to only a few hundred prisoners. I genuinely believe that an army of 1,500 lawyers working on aggressive for months and years on federal sentencing litigation — perhaps in marijuana cases or attacking some extreme mandatory minimums through habeas actions or other means — could produce jurisprudential development that could end up helping many more than a few hundred defendants.

January 5, 2015 at 11:21 PM | Permalink


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Having spoken to law school and law review classmates of Obama, the entire situation is explained by his laziness, and not any ideological stance.

And, as to this:

President Barack Obama’s sweeping plan to commute the sentences of nonviolent drug offenders who were caught up in the disparities in laws governing crack and powder cocaine is lagging, burdened by vague guidelines, lack of Justice Department resources and the unusual decision to invite advocacy groups like the ACLU to help screen applications, according to lawyers close to the process.

Over and over, I have suggested trying to sell anything even newspapers,let alone illegal drugs in the territory of these poor, nonviolent victims of the white criminal justice system, report on what happens.

Wasn't it the crack people that soared the murder rate to such a height, the mandatory sentencing guidelines were enacted to save the system from the wrath of the American people? No one heard of that effect? It is those people, the mass murderers, that the ACLU argues are victims of racism.

Posted by: Supremacy Claus | Jan 6, 2015 7:07:45 AM

Someone does very well in the structured setting of prison.

The conclusion from the Twilight Zone of the lawyer dumbass: Ready for discharge.

The real conclusion: For first time, has found success in the structured setting of prison. Insane to stop something that worked, when nothing else has. Ready to stay longer, continue to do well.

I am in a coma from diabetes. Doctor saves me with insulin.

I return a month later. I say, blood sugar is well controlled and no side effects from insulin.

If the doctor were a lawyer dumbass from the Twilight Zone, he would reply, stop the insulin.

Does great in prison, so stop the prison. Because the murder rate in the outside world for career criminals is 50%, release is likely a death sentence. Assume, the released do not die from accidents, suicide, AIDS, overdoses, all of which are at elevated risk outside prison.

Why would the lawyer wish something so detrimental on his client? No fees while sitting in prison. Lots of government make work jobs when loosed on the public.

The awful left wing bigger government advocates at Politico and at the Clemency Project will never inform prisoners of these risks. I would support litigation against all advocates after a released prisoner is injured by the carelessness of these irresponsible rent seekers.

Posted by: Supremacy Claus | Jan 6, 2015 9:35:56 AM

I have yet to move much further from where I was a year ago:



Posted by: P.S. Ruckman, Jr. | Jan 6, 2015 9:39:12 AM

I've heard of a federal defender who expressed ethical concerns about partnering with DOJ with regard to clemency petitions. As I understand it, the federal defender was concerned about (1) working hand-in-hand with DOJ to assist DOJ in performing what should be, and historically has been, an exclusive function of the executive branch of government; and (2) screening applicants and only advocating on behalf of some applicants while telling other applicants no--a function that the federal defender felt was an inappropriate blurring of the lines between the job of a criminal defense attorney (to advocate a client's position) and the job of an adjudicator (to decide whether a position is meritorious).

Posted by: Curious | Jan 6, 2015 10:38:59 AM

Prof. Ruckman. I assume you are not a lawyer, so I can speak to you. Are there any data on the results of clemency? What happened to the pardoned after 5 years, including death? If there are no data, shouldn't the advocates of clemency support a DOJ research grant to carry one out? Could not find one in brief research. Not a particular interest, so not submitting nor pursuing a FOIA request.

Found this, a review of 100 years' worth:

The Economics of Presidential Pardons and Commutations

William M. Landes

University of Chicago Law School ; National Bureau of Economic Research (NBER)

Richard A. Posner

University of Chicago Law School ; National Bureau of Economic Research (NBER)

January 2007

U of Chicago Law & Economics, Olin Working Paper No. 320

This paper develops a simple economic model of the demand for and supply of presidential pardons (including commutations and other clemency grants). The model assumes that the number of pardon applications depends on the expected benefits and costs of applying and the number of pardons depends on the president's calculation of his net political benefits from approving an application. This yields an equilibrium number of applications and pardons that can be estimated from time series data over the 1900 to 2005 period. Overall, the regression results support the model. For example, we find that the likelihood of receiving a pardon has a positive effect on applications; and that increases in the number of persons paroled (a substitute for a pardon) and in the time from conviction to pardon (which lowers the benefits of a pardon) reduces the number of applications. We also observe a positive time trend in applications that corresponds to the increase in the number of federal prisoners (and persons released from prison) that make up the pool of potential pardon applicants. With respect to the number of pardons, we find that democratic presidents (who we expect to be less tough on crime) are more likely to grant pardons; that the crime rate has a negative impact on pardons; and that the number of pardons increased during Prohibition and during wartime and postwar periods.

Posted by: Supremacy Claus | Jan 6, 2015 12:21:00 PM

The Federal Public Defender organization may have been in the best position to advocate for their clients' clemency. Some offices already had started the process of reviewing cases and preparing petitions. However, that effort was abruptly stopped by the Director of the Administrative Office of the U.S. Courts, Judge John Bates. Judge Bates directed that no defender offices were to advocate for clemency on behalf of their clients. This directive was issued even though one defender office had presented a memorandum to the Administrative Office explaining why Federal Public Defender attorneys could continue to represent their clients in clemency matters.

Posted by: herb morgenstern | Jan 6, 2015 4:56:07 PM

My Fiancé has been in a federal prison or camp since 1994, she sold cocaine but one of the others made crack out of the cocaine so everyone was given X100 the weight of the cocaine that was found (actually they never found any, a crack head wore a wire and testified to what the DEA thought they were selling) anyhow she received a 35 year sentence at the age of 23, she has applied for a clemency last year, the warden filed the paperwork for her and as of Septmeber of last year it is being reviewed by the Pardons Office. The prosecutor has told us he will give her his backing but he cannot get anyone from the office to call him back. I called the office and wasn't able to get any contact info other than what is online. We don't have a lawyer, no backing from famm and the aclu has never heard of us. Truthfully I don't have any faith in the system, it doesn't take months to figure out if she was sentenced today she would get 8 years, she has completed over 20 years, no problems in prison and other than a DUI, no criminal record. Obama really did mess up, in a way he promised relief for thousands who filled out the post card the DOJ sent to people in prison.

Posted by: Chris | Jan 6, 2015 9:09:26 PM

Judge Bates probably didn't like the FPD's successful clemency effort on behalf of Ezell Gilbert.

Posted by: AFPD | Jan 7, 2015 1:25:58 PM

I am the sister of an inmate that has a life sentence. He applied for clemency and received his denial letter on his birthday. He as served 23 years. Why did they get so many inmates and their families hopes up for nothing? I this this clemency project is a crock. I don't trust the people reviewing the forms so the President is still only seeing the ones that someone else wants him to see. Same problem as before. Even if they were not released, that could at least lowered some sentences and hopefully they could be free one day...Thanks

Posted by: Linda Wright | Jan 12, 2015 5:35:23 PM

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