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December 14, 2015

Reviewing and reflecting on persistent problems with the federal clemency process

The recent Washington Post article about criminal justice reform efforts during the second term of the Obama Administration (discussed here) hinted that we could expect to see Prez Obama grant a significant number of additional prison commutations in the coming weeks.  But this effective new Marshall Project piece by Bill Keller, headlined "The Bureaucracy of Mercy: Why hasn’t President Obama freed more prisoners? Maybe that’s the wrong question," reviews why federal clemency procedures and practices have been persistently disappointing for those who believe there is a need for much more than sporadic grants of executive mercy. I recommend the lengthy article in full, and here is how it starts and ends:

As the two presidents, one incoming and the other outgoing, shared a limo to the inauguration in January 2009, President Bush had some advice for President-elect Obama: “Announce a pardon policy early on, and stick to it.” Bush had been stunned by a final-days flood of appeals for clemency on behalf of friends and former colleagues convicted of federal crimes.

“I came to see a massive injustice in the system,” Bush recalled in his memoir, “Decision Points.” “If you had connections to the president, you could insert your case into the last-minute frenzy. Otherwise, you had to wait for the Justice Department to conduct a review and make a recommendation.”

As he approaches his own last-minute frenzy, President Obama has embraced criminal justice reform —especially the problem of over-incarceration — as a major cause of his administration.

“Over the course of this year, I’ve been talking to people all across the country about reforming our criminal justice system to be fairer, to be smarter, to be more effective,” he said in a speech in November.

And yet Obama’s clemency record so far — counting commutations and pardons — lags behind every recent president except George H.W. Bush, who had only a single term. On pardons, which give ex-inmates a better chance to get jobs, find housing, vote and generally live normal lives, Obama is the stingiest president since John Adams — 64 granted so far, fewer than three percent of the petitions filed....

But to many advocates of reform, the numbers miss the larger point: after navigating the multi-stage process of CP14, applicants still had to pass through the Department of Justice, where the main job is to lock people up, not let people out.  Between prosecutors and defenders, says David Patton, head of the Federal Defenders of New York, there is “a difference in role and perspective.” Prosecutors, he said, are “less able to see things through the eyes of our clients, or through the eyes of anyone other than the prosecutor.”

“In some sense, by recommending that a sentence be reduced you are taking a position that is, in all likelihood, contrary to what DOJ took at the sentencing proceeding,” he said.

Top officials at the Justice Department publicly discount the idea that the department’s culture is hostile to clemency. “We’re not the Department of Prosecutions,” Deputy Attorney General Sally Yates told The Washington Post in May.

Various clemency advocates have different suggestions for change: an independent commission; restoring a federal parole board, which was abolished in the 1980’s, and having it handle commutations; or plucking the pardon attorney’s office from the Department of Justice and locating it in the White House. What they all have in common is reducing the role of the Justice Department.  “I would want prosecutors to weigh in on every case,” said Rachel Barkow, a New York University law professor and member of the U.S. Sentencing commission. ”But I wouldn’t want them to be a veto point, where they could just make a case go away. And that’s what it is right now.”

Margaret Colgate Love, a clemency lawyer who spent 20 years in the Justice Department and was the department’s pardon attorney from 1990 to 1997, agreed: “It’s hopeless, you can’t reform it in the department.”

But Love argues that the focus on presidential clemency is misplaced. Intended as a remedy for individual cases of injustice, she says, executive clemency should not be a tool to reduce prison populations.

Other vehicles exist for more systemic reform, she notes. The U.S. Sentencing Commission, an independent agency of the judicial branch, has found 46,000 inmates eligible for earlier release by making new sentencing guidelines for certain drug crimes retroactive. A bill inching through Congress would do the same for some 6,500 people locked up during the national panic over crack cocaine.

Love says that when she hears speculation about moving thousands of people through the clemency process she wonders, “How could anybody who had half a brain imagine that clemency could be used to deal with even a thousand cases? It’s never been done.”

Her prescription is to empower the Bureau of Prisons to identify prisoners ready for commutation and take those cases directly to a judge. “Wardens know who ought to be out, and who not,” she said. “Why should we be putting the president in the position of vouching for a whole bunch of people who did pretty serious crimes, many of them, and have been in prison for many years?”

No one expects any of these reforms to be enacted in the year Obama has left. Which will give him something to pass on to his successor at the next inauguration.

December 14, 2015 at 08:15 AM | Permalink


Again, with the chronic condition analogy.

Doing well, controlling diabetes with insulin. So, let's stop insulin.

Doing well in structured setting of prison. So, let's release the prisoner into the hood.

Does that sound right, either stopping insulin or prison, if doing well?

Posted by: Supremacy Claus | Dec 14, 2015 4:05:17 PM

One main problem is w/in the defense bar itself (specifically FPD). They focus on doing completed memoranda (with ticky-tacky submissions and resubmissions) for CP 14 instead of letting CP 14 do the finishing work and allowing FPD to preliminarily go through 100s if not 1000s more candidates than it could have otherwise (including CJA represented candidates). The result is that FPD missed out on reviewing many more candidates (while their higher ups complain they don't have enough qualified applicants) because of this emphasis on having everything perfect for CP 14 to the exclusion of all else. The FPD system has really dropped the ball on this.

Posted by: Troy | Dec 14, 2015 5:13:10 PM

Are you really pointing the finger at the FPD? Didn't the GC say that FPDs can't do the ultimate submission on clemency? The FPD has been reviewing thousands of cases in addition to all the other work that they are required to do. The FPD is not the problem.

Posted by: Don't Ask | Dec 14, 2015 5:28:27 PM

Clemency process needs to be restructured, drop the Doj.

Everyone knows this, but to get this done isnot so eSy.

Every Pres candidate announces their goals and run their campaine.

Have to work with the existing structure. That takes people skills and savy.

Its a tough job to be in politics and achieve anything. Want to do nothing and be invisible, its the perfect position. Just echo your partys goals. Close enough for govnt work.

They all get by on lines like that. I would get slaughtered the first meeting.

Posted by: MidWestGuy | Dec 14, 2015 5:51:06 PM

I was somewhat dismayed that this is the same discussion that has ensued since Clemency Project 2014 began.

I remain ever hopeful that the process of systemic clemency to right the great social experiment of systemic over incarceration with sentences that do not fit the crime will be successful as it has been in the past. Many Presidents have granted clemency to categories of offenders.

The administrative solutions offered at the end of the article can go forward, but should not be relied on as an alternative to the President exercising his exclusive Constitutional Executive Power in a full throat-ed manner.

I'll again drag Hamilton in to the discussion: The benign prerogative of pardoning should not be fettered or embarrassed. Without Executive pardon power, the severity of our criminal code has the face of brutal cruelty.

This is as true today as when Hamilton penned the words.

Posted by: beth | Dec 15, 2015 2:34:00 AM


Yeah it is clearly the FPD's fault....

Posted by: AFPD | Jan 20, 2016 5:59:06 PM

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