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July 4, 2015

"Obama Plans Broader Use of Clemency to Free Nonviolent Drug Offenders"

The title of this post is the headline of this encouraging lengthy front-page New York Times article. Here are excerpts:

Sometime in the next few weeks, aides expect President Obama to issue orders freeing dozens of federal prisoners locked up on nonviolent drug offenses. With the stroke of his pen, he will probably commute more sentences at one time than any president has in nearly half a century.

The expansive use of his clemency power is part of a broader effort by Mr. Obama to correct what he sees as the excesses of the past, when politicians eager to be tough on crime threw away the key even for minor criminals.  With many Republicans and Democrats now agreeing that the nation went too far, Mr. Obama holds the power to unlock that prison door, especially for young African-­American and Hispanic men disproportionately affected.

But even as he exercises authority more assertively than any of his modern predecessors, Mr. Obama has only begun to tackle the problem he has identified.  In the next weeks, the total number of commutations for Mr. Obama’s presidency may surpass 80, but more than 30,000 federal inmates have come forward in response to his administration’s call for clemency applications.  A cumbersome review process has advanced only a small fraction of them.  And just a small fraction of those have reached the president’s desk for a signature.

“I think they honestly want to address some of the people who have been oversentenced in the last 30 years,” said Julie Stewart, the founder and president of Families Against Mandatory Minimums, a group advocating changes in sentencing. “I’m not sure they envisioned that it would be as complicated as it is, but it has become more complicated, whether it needs to be or not, and that’s what has bogged down the process.”...

“It’s a time when conservatives and liberals and libertarians and lots of different people on the political spectrum” have “come together in order to focus attention on excessive sentences, the costs and the like, and the need to correct some of those excesses,” said Neil Eggleston, the White House counsel who recommends clemency petitions to Mr. Obama.  “So I think the president sees the commutations as a piece of that entire process.”

The challenge has been finding a way to use Mr. Obama’s clemency power in the face of bureaucratic and legal hurdles without making a mistake that would be devastating to the effort’s political viability.  The White House has not forgotten the legacy of Willie Horton, a convicted murderer who raped a woman while furloughed from prison and became a powerful political symbol that helped doom the presidential candidacy of Gov. Michael S. Dukakis of Massachusetts in 1988.

But with time running short in Mr. Obama’s presidency, the White House has pushed the Justice Department to send more applicants more quickly.  Mr. Eggleston told the department not to interpret guidelines too narrowly because it is up to the president to decide, according to officials.  If it seems like a close case, he told the department to send it over.

Deborah Leff, the department’s pardon attorney, has likewise pressed lawyers representing candidates for clemency to hurry up and send more cases her way. “If there is one message I want you to take away today, it’s this: Sooner is better,” she told lawyers in a video seminar obtained by USA Today. “Delaying is not helpful.”...

In his second term, Mr. Obama embarked on an effort to use clemency and has raised his total commutations to 43, a number he may double this month. The initiative was begun last year by James M. Cole, then the deputy attorney general, who set criteria for who might qualify: generally nonviolent inmates who have served more than 10 years in prison, have behaved well while incarcerated and would not have received as lengthy a sentence under today’s revised rules....

Margaret Love, who served as pardon attorney under the first Mr. Bush and Mr. Clinton and now represents prisoners applying for clemency, said the process had become a mess. “It’s really poor management,” she said. “These are people who don’t have any history with sentence reduction. They’ve been putting people in prison all their lives. They don’t know how to get them out.”...

In December, Mr. Obama commuted the sentences of eight drug offenders, and in March he followed up with 22 more.  If he accepts most of the latest applications sent to the White House, some officials said it would probably double that last batch of 22, exceeding the 36 commutations Mr. Clinton issued at one time on his last day in office. Among those Mr. Obama granted clemency in March were eight prisoners serving life sentences for crimes like possession with intent to distribute cocaine, growing more than 1,000 marijuana plants or possession of a firearm by a convicted felon.

Needless to say, I am pleased to hear this report that dozens of additional clemency grants for nonviolent drug offenders may be coming soon from the Obama Administration.  But even if Obama were, after 18 months of lots of big talk about a clemency push, to now commute next week as many as 80 federal drug prisoners, this would still be not be as substantively consequential for the federal prison population as the 400+ drug defendants who will sentenced to lengthy federal prison terms the very same week!  Roughly speaking, in the months since the clemency talk got started, perhaps as many as an additional 35,000 drug offenders (many of whom are nonviolent) have been sentenced to significant federal terms. 

One of many reasons I have been distinctively skeptical and cynical concerning Clemency Project 2014 and related clemency work generated by the Obama Administration's clemency talk was my fear that Prez Obama would lack the courage and desire to commute many thousands of federal sentences. Practically speaking, unless and until the President starts talking about mass commutations, truly significant and consequential sentencing reforms and relief have to come from Congress, the Sentencing Commission or the courts.  (Indeed, rather than worry too much about clemency particulars, I wish the New York Times and all those concerned about mass incarceration in the federal system would focus on the profound impact that the Supreme Court's recent Johnson ruling could have if (and only if) Obama's Department of Justice and the US Sentencing Commission and lower courts apply it broadly and enhance its potential impact.)

July 4, 2015 at 09:59 AM | Permalink


Exactly what bureaucratic and legal hurdles could be in the way of exercising the pardon power in whatever way Obama desired? I can certainly see political reality being in the way but that is something entirely different. (Except of course it would be nice to blame bureaucracy and legal reasons for political cover of his own).

Posted by: Soronel Haetir | Jul 4, 2015 11:43:16 AM

There is a certain structure in place to grant pardons in place that results in bureaucratic complacency to inertia. The basic power is there to change all of this & it's clearly an act of discretion with political aspects. But, once a process is set up in the Justice Department or whatever to deal with the issue, there is some "bureaucratic" hurdles. Bureaucracy often isn't totally a barrier but in real life it often is.

Posted by: Joe | Jul 4, 2015 1:09:44 PM

Some problems with the clemency juggernaut.

Hypocrisy. No clemency advocate to my knowledge handed in their home address to the parole board. It would be used to seize the surrounding houses under Kelo, then to place up to twelve pardoned criminals in each without zoning board approval. Why not the lawyer's house? Why does it always have to be the black neighborhood, where super-toxic people are placed to pollute the place?

Fictitious Charges. In 95% of cases the adjudicated charge is a false lesser charge from plea bargaining. So saying, non-violent drug possession, is completely false. We have no idea.

Try selling in the same territory. Most of these professional dealers are serial killers of their competition, and we have no idea of how many people they have murdered, on their own or at the command of a kingpin. We do know that mandatory guidelines were immediately followed by a 40% drop in the murder rate across the nation.

Good prison conduct means nothing. It means they do well in the structured and supervised setting of prison. They get an education, show positive leadership helping others, get drug addiction treatment. If a diabetic is ding very well on insulin, would anyone say, stop the insulin. Both diabetes and criminality are lifelong, chronic illnesses. It is malpractice to stop a very successful treatment in a chronic condition. Beyond the quackery of the lawyer, release will really hurt the prisoner, relapsing into their old life, including the risk of being murdered.

Posted by: Supremacy Claus | Jul 4, 2015 1:18:16 PM

Anyone know how Clarence Aaron is doing?

Posted by: federalist | Jul 4, 2015 9:57:35 PM

Can we agree on one small matter? That 10% of any savings from loosing these dealers should be spent on research followup studies to see what they are doing a year, then 5 years later. The researchers should obtain a certificate of absolute immunity from the Department of Justice so the real number of crimes they are committing each week can be counted.

Posted by: Supremacy Claus | Jul 5, 2015 12:56:15 AM

Fed. Clarence is on Facebook. Send him a Friend request.

Posted by: Supremacy Claus | Jul 5, 2015 2:24:15 AM

Why is the government's sole focus on "non-violent drug offenders" getting clemency?. Aren't there many other inmates serving ridiculous amounts of time for non-violent crimes "other" than drug offenses?. When does the spotlight focus on letting them have a chance at early release too?

Posted by: kat | Jul 5, 2015 9:19:57 AM

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