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.
A prisoner in Huntsville, Texas, in 2000.Andrew Lichtenstein / Corbis
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.