"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.)