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August 26, 2015

"Clemency 2.0"

The title of this post is the title of this notable new paper by Paul Larkin Jr. now available via SSRN. Here is the abstract:

A trope heard throughout criminal justice circles today is that the system is a dystopia. Although most of the discussion and proposed remedies have centered on sentencing or release, this article focuses on clemency, which has become a controversial subject.  The last few Presidents have rarely exercised their pardon power or have used it for ignoble reasons.  The former withers the clemency power; the latter besmirches it.

President Obama sought to kick start the clemency process through the Clemency Project 2014, which sought to provide relief to the 30,000 crack cocaine offenders unable to take advantage of the prospective-only nature Fair Sentencing Act of 2010.  That initiative, however, is unlikely to jump-start the clemency power since it is quite limited — to drug offenders unable to benefit from the new crack-to-powder sentencing ratio.  But the vast expansion in the size of the federal correctional system, combined with the corresponding increase in the costs of federal corrections, may spur the president to renew his resort to clemency.  If so, the question becomes, How?

The discussion proceeds as follows: Part I traces the history of the clemency process, focusing on the President’s Article II power to grant an offender mercy.  Part II will ask why the clemency power has fallen into desuetude or disdain over the last few decades, and Part III will discuss whether clemency is likely to be reborn in the near future.  Part IV will conclude by recommending that the problem lies not in the power it-self, but in the process by which cases are brought to the President for his review and maybe in the people we have elected to make those decisions.

August 26, 2015 at 10:54 AM | Permalink


"Dystobia". Is that some kind of law prof word? Kind of like algorithem which was AL Gore on steroids.

Posted by: Liberty1st | Aug 26, 2015 12:51:29 PM

The Clemency Project is not at all limited "to drug offenders unable to benefit from the new crack-to-powder sentencing ratio." That is just wrong. It is for all drug offenders whose sentences would likely be different today, which is a much broader category of defendants. The reduced crack to powder ratio is only one of many bases on which a sentence might be different today.

Posted by: Atticus | Aug 26, 2015 5:20:39 PM

Atticus is correct. Clemency Project applicants may benefit (most notably) from the DOJ's new sentencing policies that restrict the use of 21 USC 851, which was widely used by prosecutors to punish drug defendants who chose to go to trial, and which resulted in life sentences in many routine, low-level drug cases. That these egregious sentences were clustered in a few districts, resulting in gross inequality in sentencing, demands that they be ironed out through the use of the clemency process. Other legal changes such as alterations in the guidelines (e.g., lowering criminal history in some cases) or in constitutional interpretation (the Apprendi-Booker line of cases) can also be used to benefit applicants.

Posted by: David Lewis | Aug 27, 2015 12:09:54 PM

I would like to understand the clemency retirement
If a person were charged with conspiracy in drug case and over sentenced and has served 80 months of 160 month sentence with a security rate of 5. would he be eligible?

Posted by: nancy mercer | Sep 23, 2015 2:40:13 PM

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