Setting in motion one of the most wide-ranging government efforts to roll back the legacy of harsh anti-crime laws dating to the drug wars of the 1980s, the Justice Department on Wednesday announced an initiative to extend presidential clemency to potentially thousands of federal prisoners who would receive more lenient rulings if they were sentenced and convicted today.
In a press conference detailing the initiative, Deputy Attorney General James Cole also announced that Ronald Rodgers, the pardon attorney who had been tainted by accusations of malfeasance, would be replaced by Deborah Leff, acting senior counselor for the department’s Access to Justice Initiative.
"The fundamental American concept, equal justice under law, requires that our laws be enforced fairly — and not just going forward," said Cole. "It is equally important that we extend this fairness to those who are already serving prison sentences for their crimes."
Cole said the department would, in its effort to retrofit penalties, prioritize inmates who are nonviolent, low-level drug offenders without significant ties to large-scale criminal organizations. Such offenders must also have served at least 10 years of their prison sentences, not have a significant history of crime or violence and have demonstrated good conduct in prison.
Though Cole declined to say how many prisoners that might encompass, The Associated Press, citing a person familiar with the matter, reported on Wednesday that the Justice Department had identified about 23,000 people who had served sentences of at least 10 years.
While Cole said the most obvious candidates would be those inmates sentenced prior to the Fair Sentencing Act of 2010, which narrowed the disparity between sentences for crack and powder cocaine offenders, he said the initiative was not limited to them.
To deal with potentially thousands of applications, Cole said he would detail attorneys from across the Justice Department to Leff's office and attempt to take what he called “the unusual step" of assigning federal public defenders, the department's traditional opponents, to assist in reviewing the applications.
He added that the Bureau of Prisons would notify inmates about the clemency call next week and direct them to lawyers from a consortium of federal public defenders and the private bar that calls itself Clemency Project 2014.
Should the department make a preliminary determination that a petition is worthy of serious consideration, Cole said it would consult the relevant U.S. attorney and the original trial judge.
Members of the project and other defense lawyers have in recent months expressed doubts about the government’s seriousness and preparedness, but Cole's speech, coupled with a public endorsement from Attorney General Eric Holder on Monday and the removal of Rodgers — whose office was seen by critics as unprepared and unwilling to extend clemency in a meaningful fashion — quieted those concerns.
"The doors of the office of the pardon attorney have been closed to petitioners for too long. This announcement signals a truly welcome change; the culture of 'no' that has dominated that office is being transformed," said Mary Price, general counsel at Families Against Mandatory Minimums and one of the Clemency Project's leaders.
As for the criteria, lawyers pointed out that aside from the 10-year minimum requirement, they were not necessarily hard and fast and were open to interpretation, which could affect both the size of the potential candidate pool and the ease of the decision-making process.
Cole's announcement also signaled the beginning of a process that is likely to involve some partisan controversy: Republican legislators have already questioned the mass use of clemency and suggested that such an exercise of executive power by President Barack Obama could upset efforts to pass comprehensive, bipartisan sentencing reform legislation in Congress.
A new pardon attorney
When Cole first revealed the Justice Department’s plans at a New York State Bar Association luncheon on Jan. 30, enthusiasm for the potentially historic initiative was tempered by concerns about Rodgers, who had been criticized for rejecting most clemency applications and was the subject of a critical 2012 inspector general’s report.
In the report, Rodgers bore much of the blame for allegedly misrepresenting to his superiors and the White House the clemency petitions he reviewed, including minimizing a federal prosecutor's concurrence with one such petition. The report recommended that Cole review Rodgers for administrative action.
On Wednesday, Cole thanked Rodgers for his service and said he had performed “admirably in what is a very tough job” and had “demonstrated dedication and integrity in his work on pardons and commutations.” Rodgers, who will not be leaving the department, will help in Leff's transition, Cole said.
While Rodgers was a career prosecutor and former military judge, Leff comes from the department’s Access to Justice Initiative and has helped put together the clemency push, said Price.
“The biggest news here is Leff is the new pardon attorney,” said Mark Osler, director of the Federal Commutations Clinic at the University of St. Thomas, in Minnesota. “That’s going to last into the next administration, and having someone at the head who is likely to be pro-clemency, who is not coming from the mainstream groups within [the Justice Department] and has the breadth of experience she does, is really encouraging. She’s a great choice.”
Leff's selection, according to Samuel T. Morison, a former staff attorney under the pardon attorney and now a criminal defense lawyer in Washington, D.C., is a good sign that enhances the credibility of the initiative.
"But the ultimate proof of the pudding will be how many cases will be processed and granted," he said.
Cole's January luncheon may have been a trial balloon, but it appears to have reflected the Obama administration's serious intention to use clemency on a scale not seen since the Vietnam War to correct what both Obama and Holder have called unfair, out-of-date and inappropriately long sentences that grew out of a tough-on-crime era and have since been repudiated by new laws.
At the time, Cole called on the defense bar to find worthy clemency candidates to present to the president. Since then, members of the Clemency Project have met with Cole and other administration officials several times but have been awaiting clarification about the government’s preferred candidates.
In those earlier remarks, Cole had indicated that the Justice Department would be looking for inmates similar to those whose sentences Obama commuted in December 2013, all of whom were sentenced under old crack cocaine laws. Despite on Wednesday broadening the call beyond inmates serving drug sentences, Cole said he still anticipated that the majority of those affected would come from among the nearly 100,000 drug offenders in federal prisons.
But even after Cole’s announcement on Wednesday, some of those involved in the Clemency Project said that several of the criteria remained vague enough to likely trigger future debates between advocates and the Justice Department over who qualifies for relief.
“A lot of these things have words in them that are going to have to be construed,” said Osler, who will be working with the project. For example, some of the prisoners most deserving of clemency, he said, may have had their sentences greatly enhanced after prosecutors used minor prior offenses to questionably charge them as “career offenders,” possibly disqualifying them from one of Cole’s criteria.
“There’s a lot of waffle room still,” he said.
‘The pendulum swung too far’
As Obama nears the middle of his last term, he appears to have made a priority of unwinding some of the most criticized measures of the drug war, which many experts also blame for today's massive prison population: mandatory minimum sentences and three-strikes-style sentence enhancements.
In 2010 he signed the Fair Sentencing Act, which shrank the disparity between mandatory minimum sentences for crack and powder cocaine — one of the most infamous products of the 1986 Anti-Drug Abuse Act. Since the 1990s, more than 80 percent of the crack cocaine convicts swelling federal prisons have been black.
In August of last year, Holder issued a directive to all federal prosecutors to limit their use of mandatory minimums and sentence enhancements. In a memo, he wrote that those tactics should generally not be used on low-level, nonviolent drug dealers who had no significant ties to gangs or cartels - the kind of inmates now eligible for the clemency initiative.
Reform advocates were pleased with the government's actions, but neither the Fair Sentencing Act nor Holder's new charging policies were retroactive, leaving behind thousands of prisoners who had no way of benefiting from the country's turn away from older, tough-on-crime models. Nearly 9,000 people alone would be eligible for reduced sentences if the Fair Sentencing Act were made fully retroactive.
And though the act and other reforms have won bipartisan support, including from libertarians and fiscal conservatives, the administration’s clemency push faces opposition from some Republicans.
On Monday, Sen. Orrin Hatch, R-Utah, a member of the Senate Judiciary Committee, said in a statement that he hoped Obama was “not seeking to change sentencing policy unilaterally."
Hatch, who has yet to sponsor a successor bill to the Fair Sentencing Act that would make it fully retroactive and halve mandatory minimum sentences in future cases, said he was "willing to work with the president on these issues" but that Obama should not "go it alone."
At a House Judiciary Committee hearing earlier this month, Rep. Randy Forbes, R-Va., challenged Holder, asking why Cole seemed to be focusing on drug convicts rather than expanding clemency priority to those who had been convicted of white collar or campaign finance violations — crimes that he said came with lower recidivism rates.
"We're dealing with a particular problem," Holder responded. "And I think the idea was that I think the pendulum swung a little too far in the ’80s."
Asked by Forbes who would meet his clemency criteria, Holder described a hypothetical "drug mule" caught in Washington, D.C., transporting drugs from New York, who could have received a "huge sentence" made even longer if prosecutors employed a common tactic of charging him for being part of a conspiracy, involving an even larger amount of drugs.
"The jury or the judges' hands were tied at that time by the sentencing guidelines or the mandatory minimums that were tied to the amounts involved as opposed to the conduct that person was engaged in, and that is the wrong we’re trying to address," he said.
Naureen Khan contributed to this report.