Former Pardon Attorney: "A Modest Proposal to Expedite the Administration's Clemency Initiative"

Regular readers know I have given lots of space this week to coverage and criticism of federal clemency efforts.  I am pleased to continue now with a guest post via former Pardon Attorney Margaret Love, which she sent my way under the title "A Modest Proposal to Expedite the Administration's Clemency Initiative":

Mark Osler’s post in this space on June 4 ("Another View on Clemency Project 2014") recounts his unsuccessful efforts several years ago to persuade the Administration to establish a presidential commission, similar to the one that handled cases of Vietnam draft evaders and deserters during the Ford Administration, to review and recommend clemency relief for the thousands of prisoners serving prison sentences imposed more than a decade ago that are now generally considered far too severe.  He suggests that the reason the Administration chose not to follow this path relates to its doubt that Congress would fund such an effort. Instead, the Justice Department chose to address the problem of excessive sentences by asking a consortium of private organizations to manage it through the volunteer efforts of the private bar.

We will never know whether Professor Osler’s commission idea would have worked, or whether lack of funding was the reason it was rejected.  But it does appear that the structure put in place instead to manage the Administration's clemency initiative has (in his words) “struggled with the overwhelming number of cases (over 30,000) referred to it.”

It did not help that the Administrative Office for U.S. Courts sharply limited the role that Federal Public Defender Organizations could play in the clemency initiative, by declaring that CJA funds could not be spent on clemency representations.  Many, including myself, believe that the sentencing expertise and advocacy of the Federal Defenders is critical to implementing the sort of large scale program of sentence reduction the Administration evidently had in mind.

But there is another approach that might have been taken by the Administration that would have ensured a central role for the Federal Defenders.  This approach, which might still be taken, would make extraordinary sentence reduction the responsibility of the federal courts as well as of the President.  Bringing cases back to court would not require new legislation or new funds, since there is already on the books a judicial sentence reduction authority that could achieve the same result as executive clemency, through court proceedings where CJA appointments are clearly authorized.  And, because a large scale sentence reduction program is already underway in the federal courts, economies of scale are possible.

Specifically, 18 U.S.C. § 3582(c)(1)(A)(i) provides that a court may at any time reduce a sentence upon motion of the Bureau of Prisons for “extraordinary and compelling reasons.” The Sentencing Commission is authorized under 28 U.S.C. § 994(t) to establish policy for courts considering BOP motions under § 3582(c)(1)(A)(i), which it has done under USSG ¶ 1B1.13.  Under this policy guideline, “extraordinary and compelling reasons” that may justify sentence reduction include terminal illness, a physical or medical condition that diminishes a person’s ability to provide self-care in a prison environment, the death or incapacitation of a child’s only caregiver, and any other reason that may be determined to be “extraordinary and compelling” by the Director of BOP. It is noteworthy that several of the organizations represented on the Clemency Project 2014 steering committee are on record with the Sentencing Commission as favoring a more expansive menu of “extraordinary and compelling reasons” warranting sentence reduction, including one that now seems prescient: “the defendant would have received a significantly lower sentence under a subsequent change in applicable law that has not been made retroactive.”

Less than two years ago BOP issued a new policy statement with a list of circumstances in which it may seek a sentence reduction, a list that is evidently not intended to be exhaustive. See Program Statement 5050.46, as amended (August 12, 2013).  Accordingly, there is no reason why BOP could not determine, with or without an amendment to ¶ 1B1.13, that “extraordinary and compelling reasons” exist in any case meeting the criteria set forth by the Deputy Attorney General as warranting a grant of clemency. The coincidence of the standards in the two contexts would be particularly fitting in light of the fact that the judicial sentence reduction authority in § 3582(c)(1)(A)(i) was originally enacted in 1976, at the Justice Department’s instance, to expedite sentence reductions that previously had required a clemency application to be submitted to the President through the Office of the Pardon Attorney.

There are in addition other reasons why it would be appropriate to supplement the clemency initiative with a statutory sentence reduction initiative implemented through the courts, including a general preference for a judicial decision-maker under federal sentencing law and policy, and for a congressionally authorized approach over an extra-legal use of executive power. Most scholars agree that clemency ought always to be a second choice where the law provides a remedy for sentencing unfairness or undue severity, as it does in this case.  See, e.g., Daniel J. Freed & Steven L. Chanenson, Pardon Power and Sentencing Policy, 13 Fed. Sent. Rptr. 119, 124 (2001) (“Wherever a rule can be structured to guide the discretion of judges or administrative agencies in determining – with reasons – whether to mitigate the sentences of similarly situated offenders, we think such a system should ordinarily be accorded priority over one that relies exclusively upon the unstructured, unexplained discretion of a president to grant or deny individual pardons or commutations.”)

Traditionally, the Federal Defenders have played a central role in proceedings involving judicial consideration of sentence reduction under § 3582(c)(2) where guideline ranges have been lowered, even though there is no constitutional right to counsel in such proceedings.  They are key players in the massive effort to reduce sentences now underway under the so-called “Drugs Minus Two” guidelines amendment. There is no reason why the Defenders should not play a similar role in judicial sentence reduction proceedings under § 3582(c)(1).  There does not appear to be any relevant difference between the two types of proceedings as far as the discretionary appointment power in 18 U.S.C. § 3006A(a)(2) is concerned. In the interests of judicial economy, these proceedings might even be combined.

All it would take to make this happen would be a resolve on the part of the Department of Justice to use this statute for the purpose it was originally intended.

Augmenting the Administration’s sentence reduction program through broader use of a judicial sentence reduction mechanism, which the Justice Department’s own Inspector General has repeatedly criticized as underutilized (most recently for aging prisoners), would accomplish the Administration’s goals in reducing unduly severe sentences, while at the same time regularizing sentence reduction through the courts pursuant to statute.  It would put sentence reduction on a sounder long-term footing that is more consistent with the principles of determinate sentencing, be more predictable and accountable as a practical matter, and respond to any concerns about the unaccountable use of executive power.

Many years ago, when I was serving as Pardon Attorney, then-Deputy Attorney General Philip Heymann asked me why we should ask the President to commute the sentence of an elderly prisoner when (he said) "we can do the job ourselves."  Now I would ask the new DAG the same question.

Some prior related posts:

• Extraordinary review of messiness of Prez Obama's clemency push
• Senator Grassley queries DOJ concerning its work with Clemency Project 2014
• NACDL explains the massive work behind Clemency Project 2014
• Defender hiccup or major headache for Clemency Project 2014?
• Nearly a year into clemency initiative, turkeys remain more likely to get Prez Obama pardon than people
• ProPublica urges next AG to "Fix Presidential Pardons"
• Has the approach and administration of Clemency Project 2014 actually made the federal clemency process worse?
• Might Charles Koch put big money behind big reform of federal clemency process?
• Professor Mark Osler's informed perspective on recent federal clemency developments