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Just a week after the Justice Department announced an initiative to commute the prison terms of thousands of federal inmates, one prisoner already has someone making a plea on his behalf: the judge who put him away 12 years ago.
On Tuesday, U.S. District Court for the District of Columbia Judge Paul Friedman, who in 2002 sentenced Byron McDade to 27 years in prison on a cocaine-dealing conspiracy charge, wrote in an opinion on a related motion that McDade was “a prime candidate” for clemency.
After favorably noting the Justice Department’s new clemency initiative, Freidman wrote, “The sentence this court was required to impose on Mr. McDade was unjust at the time and is out of line with and disproportionate to those that would be imposed under similar facts today. While the court is powerless to reduce the sentence it was required by then-existing law to impose, the president is not.”
President Barack Obama, for his part, has announced, through the Justice Department’s initiative, his intention to use his discretionary power to extend clemency as a way to retrofit the sentences that thousands of inmates like McDade are serving and that are recognized across party lines to be unfair.
Despite such consensus, these sentences have remained unaddressed by congressional action. Even those enthusiastic about the clemency initiative say comprehensive legislation establishing a process subject to transparency and review would better remedy what is systematic unfairness — but they see no point in waiting.
Norman L. Reimer, executive director of the National Association of Criminal Defense Lawyers (NACDL), says that more needs to be done and that this clemency push “doesn’t change our efforts to ameliorate sentencing practices in this country. But this program is available now.”
About 10 percent of the prison population meets the most basic criteria of the new clemency effort, and the Justice Department and outside lawyers are expecting an outpouring of interest from inmates once the Bureau of Prisons begins notifying all 217,000 federal prisoners next week of the call for clemency applications.
In the nearly 30 years since the war on drugs and other sentencing reforms sent thousands of people to federal prison on sentences now seen as unfair, swelling the federal prison population 740 percent, 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 face sentences deemed 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 those already in prison, who watched new prisoners arrive having committed similar crimes but facing considerably shorter sentences.
The Smarter Sentencing Act, which would make at least the Fair Sentencing Act retroactive, is pending in Congress.
The clemency initiative seeks to address this disparity. The central criterion Deputy Attorney General James Cole announced was that the department was looking for inmates who “by operation of law likely would have received a substantially lower sentence if convicted of the same offense today.”
In addition, he said the department was seeking 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.
The best candidates, lawyers say, will likely be prisoners convicted of crack-cocaine-related crimes and sentenced to mandatory minimum penalties before the Fair Sentencing Act raised the threshold for those penalties and narrowed the disparity between crack and powder cocaine sentences in 2010.
But beyond those who would benefit from the Fair Sentencing and Smarter Sentencing acts, the process becomes hazier. The Justice Department’s cutoff date — which requires eligible prisoners to have served at least 10 years of their sentence — risks leaving out recently but harshly sentenced inmates.
Amy Baron-Evans, a federal public defender and sentencing policy expert, said that prisoners receive credit for good behavior and for the time they served in custody before being sentenced, which could effectively put them over the cutoff date.
The emotions of the day win out. That’s what decides who gets picked for clemency.
director, Federal Commutations Clinic
Those interested will be required to fill out a survey, and the Justice Department says it will provide assistance on request. Once completed, surveys will go to the Clemency Project 2014, a consortium of federal public defenders and the private bar. It will then determine if inmates should be referred to a lawyer who, free of charge, will help them prepare the application. The Clemency Project 2014 will train those lawyers using a curriculum that it is drafting.
Prepared applications will then be sent to the Office of the Pardon Attorney (OPA) at the Department of Justice. After consulting the relevant U.S. attorney and the original trial judge, the OPA will make a recommendation to the deputy attorney general, who will then make any recommendations to the president. (Initially, the integrity of the entire initiative was questioned because the OPA had been marred by allegations of malfeasance during the tenure of Pardon Attorney Ron Rodgers. But last week Cole announced that the acting senior counselor for the department’s Access to Justice Initiative, Deborah Leff, would replace Rodgers.)
Even though the initiative seeks to correct systemic unfairness and has offered somewhat objective criteria, because clemency is within the president’s discretion, those deliberations at the Justice Department will not be transparent or appealable as they would be if the process were being run through, for example, the courts. Similarly, according to the Justice Department, a grant of clemency might mean immediate release as it traditionally has, or it might amount to a resentencing — a function usually reserved for the courts.
“That’s the downside with real mercy — it’s uneven,” said Mark Osler, director of the Federal Commutations Clinic at the University of St. Thomas in Minnesota. “There’s a great scene in the Bible where Pilate tells the crowd to pick between Jesus and Barabbas. The emotions of the day win out. That’s what decides who gets picked for clemency.”
There are some who are opposed to the clemency push in its entirety; conservative groups and law enforcement associations complain that the Obama administration seems to have shown little interest in their opinions.
“Up to this point, we’ve been pretty much locked out of [the debate],” said Bob Bushman, president of the National Narcotic Officers’ Associations’ Coalition.
Bushman, a three-decade veteran of anti-drug investigations in Minnesota, said that crime victims and others who support tough policies have been left out of the discussion over clemency.
“We’re opposed to en masse sentence reductions for clemency,” he said. “We believe that a lot of the people sent to prison under the existing laws earned the right to be there.”
While Bushman acknowledged that some of the anti-drug policies implemented in the 1980s may have been knee-jerk reactions to unprecedented violence, he said imprisoning drug offenders and others “was a lot of the reason that we saw dramatic reductions in crime.”
Such a clemency drive would require an army of lawyers to sort through the deluge of applications.
For now, both the Justice Department and defense attorneys are gearing up for what promises to be a massive undertaking. Earlier this year, Nancy Hoppock, a former federal prosecutor and now the executive director of New York University’s Center on the Administration of Criminal Law, which runs a federal commutation project, said that such a clemency drive would require an army of lawyers to sort through the deluge of applications.
According to Reimer, since the formal announcement of the initiative last week, over 400 lawyers from the NACDL and the American Bar Association have eagerly volunteered to work pro bono on the initiative. The Justice Department last week issued a call to all its attorneys looking for recruits to be detailed to the OPA.
As they embark on this unchartered path, the Justice Department and defense attorneys expect bumps and to tweak the process as it goes forward.
While Judge Friedman lamented in his opinion that for years he appealed to the Bureau of Prisons and the president to intervene on behalf of McDade and that his calls had gone unheeded, he wrote that he “had not lost hope, and presumably Mr. McDade has not either.”