The Obama administration expects thousands of federal drug prisoners to petition for sentence reductions after it announces new criteria for clemency later this week, Attorney General Eric Holder said on Monday, sending the strongest signal yet that the government is serious about what could be the largest sentencing reprieve since the Vietnam War.
In a short video message posted on the Justice Department’s website, Holder called the president’s clemency power "vital" to the justice system and said his department was "committed to recommending as many qualified applicants as possible for reduced sentences."
The new criteria for clemency, to be announced later this week by Deputy Attorney General James Cole, would be "more expansive," Holder said, and the Justice Department would assign "potentially dozens" of lawyers, with backgrounds in both prosecution and defense, to deal with the increased field of applicants.
Holder's statement was the first time an administration official has provided even a rough estimate of how many people the government thinks might fall under its nascent plan to dramatically expand the use of clemency, which appears to have become a central piece of President Barack Obama’s criminal justice reform agenda as he approaches the middle of his final term.
Obama has granted clemency less often than his recent predecessors. Defense lawyers and advocates of greater use of clemency power have criticized what they see as his stingy exercise of a crucial presidential prerogative that for some defendants represents a last chance at fairness.
If the president’s plan moves forward, that perception may soon change.
"The White House has indicated it wants to consider additional clemency applications to restore a degree of justice, fairness and proportionality for deserving individuals who do not pose a threat to public safety,” Holder said.
Ready for a flood?
Reform advocates and defense lawyers previously expressed doubts about the government’s seriousness.
They have raised concerns about the government’s readiness for what will likely be a flood of clemency petitions from the nearly 100,000 people serving federal drug sentences, and they have questioned the administration’s apparent intent to steer the process through the usual clearinghouse for such petitions, the Justice Department’s Office of the Pardon Attorney, which has been criticized for rejecting most applications and was the subject of a 2012 inspector general’s report.
The administration’s clemency plans were revealed in a Jan. 30 speech Cole gave at a New York State Bar Association luncheon. The unexpected announcement turned heads, but he offered only a broad outline of the kinds of candidates the government sought. Since then, administration officials have remained silent on the specific criteria they prefer for the new clemency petitions, the number of applicants they expect and the process for handling the new petitions.
Last week, White House counsel Kathryn Ruemmler told an audience at the New York University School of Law that criteria would be forthcoming, and Holder’s statement is the strongest sign yet that the government intends to move forward.
On Monday, reform advocates expressed cautious optimism, saying Holder’s remarks represented an important public declaration of Obama’s intent from a top official.
"They’re terrific. We’re pretty encouraged by it," said Mary Price, general counsel for Families Against Mandatory Minimums and one of the leaders of a coalition of lawyers and activists that met with Cole in February. "We’re going to take them at their word, and we’re going to try to help."
Holder's statement seemed to indicate that the Office of the Pardon Attorney would still play a role in the process, but a report by Yahoo News on Monday, citing a senior administration official, said that the current pardon attorney, former military judge Ronald Rodgers, was likely to be "pushed out and replaced."
In the inspector general's report, Rodgers bore much of the blame for allegedly misrepresenting the facts of clemency petitions to his superiors and the White House, and the report recommended Cole review Rodgers for administrative action. The Justice Department has since declined to comment on the issue.
Al Jazeera reported in March that Rodgers did not attend the February meeting between Cole and the outside advocates — a possible signal that he had been excluded from the clemency project. On Monday, a Justice Department representative declined to comment on the Yahoo News report, saying any announcement would be made by the pardon attorney.
"The Office of the Pardon Attorney was where applications for clemency went to die over the years," Price said. "It looks like they're going to revitalize that office. They’re staffing up, and that says something very important about their intentions."
Others with experience in the office said that Holder's remarks and his promise of new staffers to run the clemency effort reflect a retreat from what might have been earlier plans to recruit the defense bar to play a bigger role.
"It's a recognition from [the Justice Department] that they can't get the private bar to do what is the pardon attorney's job," said Samuel T. Morison, a former lawyer in the Office of the Pardon Attorney who is now a defense attorney in Washington, D.C.
‘Waiting with bated breath’
Holder's statement appeared to distance the government from the most recent precedent for wide-scale clemency use: the 1974 Presidential Clemency Board.
Established by President Gerald Ford to address thousands of draft violation and desertion cases stemming from the Vietnam War, the board involved about 400 staff attorneys who evaluated 21,000 to 27,000 petitions. It granted roughly 90 percent of them.
Holder's remarks seemed to indicate that the administration plans to use a smaller number of attorneys to review the drug clemency petitions.
"It appears that the Justice Department is serious about rebuilding its clemency process to address excessive drug sentences, though I suspect it will find that the magnitude of the problem calls for a more systematic approach," said Margaret Colgate Love, who served as pardon attorney under presidents George H.W. Bush and Bill Clinton and now represents clemency applicants.
In his remarks, Holder cited the Fair Sentencing Act, which Obama signed in 2010 and shrank the disparity between mandatory minimum sentences for crack and powder cocaine — one of the most infamous products of the tough-on-crime laws born of the 1980s drug wars.
Nearly 9,000 people convicted under the old crack mandatory minimums remain imprisoned with unchanged sentences because of a loophole in the law, Al Jazeera reported in March. On Monday, Holder called those punishments "profoundly out of date."
A bill pending in the Senate, the Smarter Sentencing Act, would retroactively allow judges to bring those sentences in line with current law, but in the meantime, Holder said, the White House had decided to use executive power — a theme of Obama's most recent State of the Union address — to remedy those cases and others.
In addition to the crack cases, Price said she expects the Justice Department's criteria to encompass other prisoners who would receive different sentences if convicted today.
They could include people affected by a major 2005 Supreme Court decision that made the sentence lengths set by the U.S. Sentencing Commission advisory instead of mandatory for federal judges or those who would have benefited from new policies announced by Holder last year that limited prosecutors' use of mandatory minimums and three-strikes-style sentence enhancements.
"We've been waiting with bated breath" for the criteria, Price said.