Charles Dharapak / AP

Legal advocates aren’t holding their breath on Obama’s clemency push

White House counsel pledges progress on unfair sentences, but some are skeptical the historic effort will amount to much

A top White House official pledged this week to accelerate a historic drive to grant clemency to federal prisoners serving outdated and unfair sentences, but the steps outlined left some wondering whether the government really intends to reform a system troubled by delays and accusations of operating below standards.

White House Counsel Kathryn Ruemmler, who will reportedly leave her position as President Barack Obama’s top legal adviser in May, said that the Justice Department intends in coming weeks to send out notifications to federal prisoners about the government’s effort to solicit clemency petitions from those who are serving particularly unjust sentences.

In December, Obama granted commutations to eight people serving sentences involving crack cocaine charges, bringing attention to a 30-year-old sentencing disparity that he and members of Congress partially narrowed in 2010 with the passage of the Fair Sentencing Act. In January, Deputy Attorney General James Cole said the commutations had only been “a first step” and called on bar associations to help the government find more candidates.

Speaking to a conference at the New York University School of Law on Tuesday, Ruemmler said the response to Cole’s call had been “overwhelming.” But she also said the Obama administration was still trying to improve a clemency process that experts and outside advocates have criticized as slow and sometimes discriminatory — faults many have placed on the troubled office of the pardon attorney.

Ruemmler noted that Obama’s budget request for the 2015 fiscal year included seven new positions in the pardon attorney’s office, including four attorneys. She also said the president had met with the top prosecutors from each federal district in March and told them to review clemency petitions and give “significant consideration” to granting them.

In 2012, an investigation by the Justice Department’s inspector general triggered by investigations by The Washington Post and ProPublica found that Pardon Attorney Ronald Rodgers’ handling of clemency petitions had fallen “substantially short” of the department’s standards, and recommended that Cole review Rodgers for possible administrative action. The government has since declined to comment about the status of any investigation into Rodgers.

"The office of the pardon attorney is not really functional," Amy Baron-Evans, a sentencing expert with the federal public defender's office, told Al Jazeera in March. "We hope that we don't need to remind [the Justice Department] how badly this has gone in the past, and we hope they will do something different."

Baron-Evans, who was in attendance at the Tuesday conference, has helped lead the response to the government’s new effort by creating a consortium of defense lawyers and sentencing reform advocates, called Clemency Project 2014, to assemble and draft clemency petitions.

A conflict of interest?

Ruemmler argued that with new resources and clearer instruction from the White House on what kinds of prisoners meet its conditions for commutation, the pardon attorney could still serve as a “gatekeeper” for clemency.

“Concerns have been raised that because the office of the pardon attorney is located within the Department of Justice, the office may be too biased in favor of prosecutorial interests,” Ruemmler said. “As a defense lawyer, former prosecutor and former Department of Justice official myself, I am very sensitive to that concern.”

She cited former Pardon Attorney Margaret Love, another conference attendee, who has previously written that allowing the Justice Department to manage the pardon power gives the president better information about cases and “insulates” him from political pressure.

But some reform advocates remain skeptical that the office won't be influenced by federal prosecutors' resistance to roll back old sentences, even when there is broad agreement on their injustice.

Douglas Berman, a professor at the Ohio State University Moritz College of Law who runs the influential Sentencing Law and Policy blog, pointed to Obama’s most recent commutation case: a Texas man who had received more than three extra years on a first-time marijuana-related conviction because of a typo in a court report.

Ruemmler had raised the case in her remarks on Tuesday as an example of the kind of injustice the administration’s clemency drive was meant to correct, but Berman argued that it showed how reluctant some prosecutors could be, even when an error was clear. In the Texas case, he wrote on his blog, prosecutors had sought to dismiss the man’s petition for a sentence adjustment even when they knew of the typo.

“Even if prosecutors were, for whatever reasons, disinclined to help [Cesar] Cantu get his erroneous sentence fixed after Cantu himself had helped the prosecutors, wouldn't they lose a little sleep over the notion that a typo could end up costing Cantu's wife the chance to have her husband's help to raise their daughter during her coming adolescence,” he wrote. “I am hard-pressed to come up with adjectives to describe this federal prosecutorial decision to seek dismissal of [his] motion other than inhumane.”

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