Professor Mark Osler's informed perspective on recent federal clemency developments

Professor Mark Osler is rightly considered one of the most informed and effective sentencing reform advocates, especially in the arena of clemency.  Thus I was very pleased when he wrote to me as a follow-up to my recent posts about recent federal clemency developments and provided some lengthy reflections he has titled "Another View of Clemency Project 2014."  Here are Mark's informed and important insights: 

In the fall of 2012, I gathered together four students, a passel of handwritten letters pleading for help, and a bunch of Margaret Colgate Love articles and created the nation's first clinic focused on federal commutations. The project has turned out to be wonderful as a teaching model; my students get to learn the core legal skill of building a narrative and advocating for a client in a process relatively free of procedural snares. It also has propelled me into the simmering debate over the Obama administration's clemency policy.

Of course, for most of the Obama presidency it wouldn't be very accurate to call the way clemency was handled as a "policy." For the most part, it appears, they simply lopped over the failed guidelines and rules of his predecessor rather than work to revive this key Constitutional power. This failure represents a troubling lack of focus in a president who (1) has properly decried the disparate incarceration of black men through the War on Drugs, and (2) came to politics as a Constitutional Law professor.

At the same time I was starting my clemency clinic, I also began to advocate for a vigorous, short-term project to use the pardon power to help those prisoners serving long sentences under mandatory minimums and sentencing guidelines on crack cocaine that were amended in 2010, but not made retroactive. With Nkechi Taifa and others, I met four times with administration officials and urged them to follow the example of President Ford, who granted clemency to nearly 15,000 Vietnam-era draft evaders and deserters in just one year. Ford did this by convening a special commission outside of the Justice Department, and that commission left behind a remarkable report full of good advice. I even left a copy of the Ford Presidential Clemency Commission Report with those Obama advisors after a meeting in the Vice President's imposing office in the Eisenhower Building.

The Obama administration did not take our advice, but they did announce a very different short-term commutation initiative -- the Clemency Project 2014, which put in the hands of five non-profit groups the shepherding of worthwhile cases towards clemency. My hunch -- and it is only a hunch -- is that this course was chosen because the administration did not think that it could get the money needed to fund a Ford-style Clemency Board through the House of Representatives. The recent Marino Amendment (which seeks to bar the use of funds for the Clemency Project 2014 or for augmenting the Pardon Attorney's office) passed by the House on June 3rd shows that there was a sound basis for that fear.

As has been well-documented, the Clemency Project 2014 has struggled with the overwhelming number of cases (over 30,000) referred to it. If there is blame in that, I should share it. Though I am not affiliated with any of the five groups in charge, I have taken an active role in training pro bono lawyers for Clemency Project 2014, have tried to rally other law schools to the cause, and have taken on several cases myself. Obviously, the structure of this project is not the one I proposed, but it is the one that we have, and through the end of the Obama administration probably represents the best chance for a historic use of the pardon power by this President. It is unlikely that this administration will suddenly — in the next year and a half — repair its relationship with the House to the point where new funding for clemency reform can be found. The toxic dynamic that probably skunked my proposal is still at work.

Professor Berman has suggested that wealthy clemency proponents like the Kochs could go far in re-making the process if they were to invest their money in reform. I think he is right. There are two areas where those resources could be used efficiently. The first is by investing in the debate over who should be the next president. Sadly, we only talk about clemency in the political realm when it goes wrong (i.e. in the last days of Bill Clinton's presidency or Haley Barbour's governorship). We should be actively asking candidates what they would do with clemency when they are running for office, and urging them towards reform. Rachel Barkow and I have, for example, argued that the next administration should shift permanently to a process centered on a review board outside of the Department of Justice, and others have promoted similar ideas. The "Supernova Federal Clemency Institute" research group Professor Berman proposes is worthwhile — but probably most worthwhile (especially with Koch backing) if it is focused on the 2016 election and the first days of a new presidency.

Beyond that advocacy, it would be wise to devote private-funding resources to the Clemency Project 2014 itself, in two ways. First, the project has a devoted and talented but threadbare staff, and that has a cost. There are few resources available to CP14 to screen cases before sending them out to lawyers, for example, and that is a problem that can be solved with money and more bodies. Second, it would help to have full-time lawyers working as advocates on these cases as specialists, as they would be much more efficient than the pro-bono generalists who often have to learn federal sentencing law from scratch. In collaboration with NYU's Center on the Administration of Criminal Law and others, I am working to do exactly that. The more money we raise, the more lawyers can be hired. But... it has to happen fast. The window is closing, and the election season is already upon us.

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?