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President Barack Obama earlier this week used his clemency power to commute the sentences of eight prisoners who were serving federal sentences for drug offenses that the administration has characterized as outdated, unfair and unduly harsh.
Had they been prosecuted and sentenced today, all would have likely received much lighter sentences, thanks to sentencing reforms and changes to the Justice Department’s charging policies.
That number was the same as last year’s, but many had expected something significantly different, since this year the Obama administration pursued an ambitious campaign — including unprecedented cooperation with outside advocacy groups — to use executive clemency power to roll back the legacy of the drug wars of the 1980s.
Those more optimistic working in the field had hoped for a much higher number. An attorney observing the process but who declined to be identified said, “I feel like Bill Murray in ‘Groundhog Day.’”
With thousands of federal inmates continuing to serve sentences under these laws, Douglas A. Berman, a law professor at Ohio State who writes the Sentencing Law and Policy blog, greeted the news with a headline referring to Obama as the “clemency Grinch.”
The Justice Department started 2014 with a call for clemency petitions from the potentially thousands of federal inmates who would have gotten lesser sentences if convicted of similar crimes today. It described ideal candidates as nonviolent, low-level offenders with no significant criminal history or ties to gangs or organized crime who have served at least 10 years with good conduct.
In response to that call, the White House reported on Wednesday that applications to the Office of the Pardon Attorney for commutations nearly tripled — to 6,561 this year, compared with 2,370 last year. That does not include the over 25,000 inmates who have applied through Clemency Project 2014.
When Deputy Attorney General James Cole unexpectedly announced the clemency drive in January, he appealed to the defense bar — the very lawyers who have fought the government over those harsh measures since they were introduced in the 1980s — to help the department by vetting potential applicants and then preparing their petitions for clemency.
After months of meetings between the department and representatives from the federal defenders, the American Civil Liberties Union, Families Against Mandatory Minimums, the American Bar Association and the National Association of Criminal Defense Lawyers, those groups formed Clemency Project 2014.
More applications have gone to Clemency Project 2014 rather than straight to the Department of Justice’s Office of the Pardon Attorney because when the Bureau of Prisons in May notified all 217,000 federal prisoners of the clemency drive, it directed inmates to Clemency Project 2014 for pro bono legal assistance in applying.
“Eight commutations are eight better than none, but it doesn't represent a change from last year. My best hope is that this batch is offered as a small sample of what is to come,” says Mark Osler, director of the Federal Commutations Clinic at the University of St. Thomas in Minnesota, who trained lawyers under the new program. “It looks like the crucial year for the Clemency Project 2014 is going to be 2015.”
The White House and the Justice Department declined to answer if more commutations would be issued before December 2015, though they confirmed that petitions are constantly being reviewed. Through a representative, the Justice Department told Al Jazeera that it did not know how many, if any, attorneys had been detailed to the small Office of the Pardon Attorney to review the petitions and that staffing would be increased when needed.
In a written statement, Clemency Project 2014 applauded Obama for granting eight commutations and urged him to commute more.
Clemency Project 2014 declined to provide its latest numbers, but as of the end of October, it had weeded out 5,024 applicants who did not meet the 10-year minimum and was reviewing 4,864 of the remaining 20,402. At the time, the organization said it had 1,500 attorneys volunteering for the cause.
When Cole made his announcement in January, he said that aside from fairness concerns, clemency could help alleviate what he characterized as the “crisis” of a “crushing prison population,” which was draining $6.5 billion a year from government budgets. He said that the December 2013 commutations were “only a first step.” Cole’s stunning speech came two days after the president vowed in his State of the Union address to unilaterally use executive power where he could to avoid congressional intransigence on pressing issues.
Old drug policies imposed mandatory minimum sentences and penalized crack cocaine offenses much more harshly than powder cocaine crimes, swelling the federal prison population 740 percent in three decades.
Since then, all branches of government have sought to roll back those excesses. The Supreme Court issued a landmark ruling in 2005 (United States v. Booker), Congress passed the Fair Sentencing Act in 2010, and the Obama administration changed its drug charging policies in 2013. Today people charged with drug offenses face sentences regarded as more proportionate to their crimes, and judges are able to exercise greater discretion in the sentences they impose.
But each of those changes, none of which were retroactive, left behind thousands already in prison, who watched new prisoners arrive having committed similar crimes but facing considerably shorter sentences. The Smarter Sentencing Act, which would make the Fair Sentencing Act retroactive, is pending in Congress.
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