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May 8, 2016

Some critical reflections on Prez Obama's clemency efforts and some ideas about what could have been

Late last week, the Washington Post had this lengthy article reviewing the various problems encoutered during President Obama's clemency push over the last few years.  The piece is headlined "Lack of resources, bureaucratic tangles have bogged down Obama’s clemency efforts," and it effectively summarized many of the difficulties previously reported on this blog. Here are excerpts:

In the waning months of his presidency, Obama has made commutations for nonviolent drug offenders a centerpiece of his effort to reform the country’s criminal-justice system. But behind the scenes, the administration’s highly touted clemency initiative has been mired in conflict and held up by a bureaucratic process that has been slow to move prisoner petitions to the president’s desk.

Obama has granted 306 commutations to federal prisoners — more than the past six presidents combined. But as of Friday, 9,115 commutation petitions were pending with little time left to review them. Of these, fewer than 2,000 appear to be eligible for the president’s clemency program, according to a Justice Department official. Thousands more are still being reviewed by outside lawyers.

From the beginning, the program was beset by problems, including a lack of resources and a cumbersome, multilevel review system. The U.S. pardon attorney at the Justice Department makes recommendations that move to the deputy attorney general, who reviews the cases and sends them to the White House counsel, who considers them again before choosing which ones go to Obama.

The pardon attorney became so frustrated that she quit earlier this year and wrote a scathing resignation letter to Deputy Attorney General Sally Q. Yates. Deborah Leff said that despite her “intense efforts” to do her job, the Justice Department had “not fulfilled its commitment to provide the resources necessary for my office to make timely and thoughtful recommendations on clemency to the president.”...

On Thursday, Obama commuted the sentences of 58 prisoners, his second round of clemencies in three months as the program has picked up steam. Administration officials say that they are addressing obstacles that have plagued the clemency initiative. The Justice Department has added lawyers to the pardon office. And White House Counsel Neil Eggleston has promised that many more petitions will be granted in the president’s final eight months.

“The President is deeply committed to the clemency initiative. That is evident not only by the historic number of commutations he’s granted to date, but by his wholesale approach to revamping the way the government approaches commutations,” White House spokeswoman Brandi Hoffine said in a statement. “That change helped spark a long overdue conversation about reforming our criminal justice system, which we hope will result in Congressional action so that many more deserving individuals can benefit from a second chance.”...

An attorney who worked in the pardon office at the same time as Leff said that with petitions flooding in, it was extremely difficult with so few lawyers to sort out complicated drug cases and figure out whether they met the department’s strict criteria. To get more help, Cole reached out to the private bar to set up another layer of lawyers to read applications.

Outside lawyers formed an organization called Clemency Project 2014, which includes Families Against Mandatory Minimums, the American Civil Liberties Union, the American Bar Association and the National Association of Criminal Defense Lawyers. An army of about 4,000 volunteer lawyers from across the country signed up to help in what has become one of the largest pro bono efforts in the history of the American legal profession. Seventy large law firms, more than 500 small firms and solo practitioners, and 30 law schools are involved, according to Cynthia W. Roseberry, the project’s manager. But it took nearly a year for the group to get organized and recruit and train lawyers, many of whom had no experience in criminal law.

An overwhelming 36,000 inmates — about 17 percent of the federal prison population — filled out surveys asking for help from the Clemency Project. Even though the Justice Department had its own backlog, officials there privately complained that the outside Clemency Project lawyers, with their multiple levels of review, were taking too long to send more petitions. That in turn frustrated the Clemency Project attorneys, who said they were working carefully to locate old legal documents, contact prosecutors and judges, look at prison behavior records and try to get pre-sentencing reports and sentencing transcripts. At the same time, they have been weighing risks to public safety....

Some critics say the White House could have avoided many of these headaches by modeling the process after the way President Gerald Ford handled clemencies for Americans who had deserted the Army or failed to show up for the draft during the Vietnam War.  With 600 people working on a special commission to review the cases, Ford granted 14,000 clemencies in one year. Law professor Mark Osler, co-founder of New York University’s Clemency Resource Center, said the initiative also might have gone more smoothly if Obama had moved the pardon attorney’s office into the White House rather than keeping it under career prosecutors who may find it difficult to reverse other prosecutors’ decisions.

This recent Fusion piece, headlined "The bold step President Obama could take to let thousands of federal inmates go free," provides a thorough discussion of the special clemency commission that President Ford had set up to deal with a massive number of Veitnam draft dodgers and desserters and which was able to process tens of thousands of clemency cases in just a year.  Here is how it concludes:

If Obama had appointed a Ford-style clemency board, he could have cut down the bureaucracy to three or four steps: a review by the board’s staff, a review by the board, a review by the White House counsel, a review by the president.

In the last few months, Obama’s advisers have been making the argument that he’s granted “more [clemencies] than the previous six Presidents combined.” But that calculation is false, as it incorrectly ignores the clemencies granted through Ford’s commission. (A White House spokesperson noted that Department of Justice statistics only count the 22 non-Vietnam related clemencies that Ford granted.)

For many recent presidents, clemency has been treated more like an afterthought. Until recently, Obama announced them at the end of each year, before he jets off to Hawaii with his family — a last-minute Christmas gift to a tiny handful of prisoners.

With fewer than 10 months left in office, even if Obama had a change of heart and decided to create a clemency board today, it would almost surely be too late. But [clemency advocates Nkechi] Taifa and Osler say it’s an idea that should be picked up by the next president. “This should not end with the Obama administration,” Taifa said.

“I do not want to delay another day in resolving the dilemmas of the past, so that we may all get going on the pressing problems of the present,” Ford said when he announced his clemency board. If President Obama—or the next president—wants to resolve the past failings of our criminal justice system, then they should also take lessons from one of its rare success stories.

May 8, 2016 at 08:40 PM | Permalink


"In the waning months of his presidency, Obama has made commutations for nonviolent drug offenders a centerpiece of his effort to reform the country’s criminal-justice system."

Oh good grief--not all of these cats are non-violent because some have a violent criminal history. Why do journalists persist in peddling lies and half-truths.

Doug, why can't you simply admit---Obama is overselling this "non-violent" shtick. It's dishonest.

Posted by: federalist | May 10, 2016 11:32:50 AM

federalist, I would be very eager for you to indicate specifically how many of the 306 "cats" given commutations so far that you think are really properly considered violent offenders based on convictions for violent offenses rather than nonviolent offenders.

If you can give me, say, 15 names of such "cats" (which would still be less than 5% of the total), I would be sure to note that a small but significant percentage of those getting commutations ought to be considered violent offenders.

Posted by: Doug B. | May 10, 2016 3:16:57 PM

First of all, Doug, you're talking "convictions"--so take George Axum, who was convicted of a firearms offense--but his actions were violent in that he, a felon, threatened his daughter's boyfriend.

Second of all, I've already pointed out a bank robber, George Axum and Ernest Spiller. None of those guys "made one mistake"--so we already know Obama's selling a bill of goods.

Third of all, I don't have the time or the ability to research each and every one of these guys--so many of them have gun convictions which means they likely have priors.

We know Obama is overselling this "non-violent" thing--why can't you just admit it?

Posted by: federalist | May 11, 2016 9:27:06 AM

If you're saying violent - do you mean that they seriously injured or killed someone? "felon in possession" - Is that what you think is violent?

Posted by: beth | May 11, 2016 4:21:52 PM

Beth--unlike your president, I don't engage in sophistry. Violence is either the use of force or the threatened use of force. A felon in possession is not violent, but at least some of the priors likely are. E.g., Ernest Spiller.

Neither you or Doug (or anyone else here) can defend the "one mistake" nonsense, and then you want to get into picayune debates over what a non-violent criminal is. The bottom line, and none of you can come right out and refute it--Obama is selling a bill of goods, just like FSA, which was touted as not applying to violent criminals.

Posted by: federalist | May 12, 2016 10:15:38 AM

I guess I don't see the non-violent vs. violent as a Picayune debate. Of course, clemency doesn't demand that the recipient must meet any requirements.

Another interesting part of the entire clemency debate is that most of the "non-violent" drug offender with life sentences have shared cells with inmates sentenced for murder. Those inmates often do not have life sentences and are released at the end of a determinate sentence.

The war on drugs has changed the perception of justice.

Posted by: beth | May 12, 2016 11:13:11 AM

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