« Making the case for education as the means "to radically change the lives of the incarcerated" | Main | Making the case for the Fair Chance Act of 2019 »

August 26, 2019

Exploring how compassionate release after FIRST STEP might indirectly help with persistent federal clemency problems

Grant Pardon RatioRJ Vogt over at Law360 has this lengthy new piece discussing both federal clemency and one of my favorite parts of the FIRST STEP Act under the headline "How Courts Could Ease The White House's Clemency Backlog."  I recommend the piece in full, and here are some extended excerpts:

More than 11,430 federal prisoners, many of them nonviolent offenders serving life sentences, have commutation petitions pending at the U.S. Department of Justice’s Office of the Pardon Attorney, or OPA. Another 2,393 applications for presidential pardons, which are generally issued after someone completes a sentence, are also pending.

Both numbers mark record highs for a clemency system that America’s founding fathers designed to be, in the words of Alexander Hamilton, “as little as possible fettered or embarrassed.”

Today, access to clemency is anything but. Sam Morison, a former OPA attorney who now helps clients file petitions, says the Justice Department uses its oversight to stymie petitions before they ever reach the president’s desk. “The DOJ is to blame for the backlog,” Morison said. “They view their role as protecting the prosecutorial prerogative because, let's face it, that's what they do.”

Some legal scholars believe the First Step Act, a landmark criminal justice reform bill President Donald Trump signed into law in December, created a way for inmates to bypass DOJ oversight by asking judges for sentence reductions based on the circumstances of their cases.

But the concept hasn’t been tested in large numbers yet, and in the meantime, the odds of getting presidential relief are approaching zero. The office that granted 41% of all pending and newly filed clemency petitions in 1920 is on track to grant less than 0.1% under Trump....

Much of today’s epic backlog can be traced to President Barack Obama’s 2014 Clemency Initiative.

The project, which was designed to identify nonviolent federal prisoners who would not threaten public safety if released, got off to a rocky start when the DOJ sent the entire federal prison population a notice of the initiative and a survey to gauge inmate interest. The DOJ’s failure to “exclude inmates who were clearly ineligible for consideration” led to an overwhelming response, according to a 2018 inspector general report.

Over the last 33 months of Obama’s presidency, OPA received more commutation petitions than it had in the previous 24 years combined. At the same time, pardon petitions doubled, from a yearly average of 276 to an average of 521....

Shon Hopwood, a professor at Georgetown University Law Center, believes the First Step Act created a new path to commuted sentences... [H]e cited the First Step Act’s expansion of compassionate release as a more accessible option....

Under the First Step Act, a defendant no longer needs the bureau's backing. If the director won’t make the request for an inmate within 30 days of being asked, the new law allows the defendant to file a motion for resentencing directly in court. In a forthcoming law review article, Hopwood writes that judges can now consider “extraordinary” reasons for compassionate release without having to wait for Bureau of Prisons approval.

“Those serving long or life without parole sentences for marijuana trafficking offenses are the first to come to mind,” he wrote. “Another group ... might be those sentenced to harsh mandatory minimum sentences, even though the facts of their crimes made them far less culpable than someone committing a run-of-the-mill offense.”...

Margaret Love, U.S. pardon attorney from 1990-1997, told Law360 that the concept is “the hidden, magical trapdoor in the First Step Act that has yet to come to everyone’s attention.”

“This has obviated the need for the clemency process to take care of the great majority of commutation cases,” she said.

Hopwood acknowledged that prosecutors are likely to oppose these motions, but said they could provide a safety valve in which the judiciary simultaneously helps alleviate mass incarceration and the OPA’s commutation workload.

A few prior related posts on § 3582(c)(1)(A) after FIRST STEP Act:

August 26, 2019 at 08:31 AM | Permalink

Comments

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB