Federal defenders barred from massive clemency drive

The Obama administration’s ambitious plan to extend clemency to thousands of prisoners suffered a serious blow Thursday after the agency that oversees the federal courts said that hundreds of federal public defenders and other court-appointed attorneys were not authorized to represent inmates in the process.

The decision, laid out in a memorandum written by the top lawyer for the Administrative Office of the Courts, effectively bars such lawyers from drafting or submitting clemency petitions because the Constitution does not guarantee inmates the right to legal representation in such procedures.

In a memo circulated to federal defenders and the chief judges of all U.S. district and appellate courts on Thursday, General Counsel Robert Loesche wrote: “There is no Sixth Amendment right to counsel for purposes of seeking executive clemency and no statutory right, except in capital cases … there is no authority under the CJA [Criminal Justice Act] or other law to appoint counsel in non-capital clemency proceedings.”

Under that interpretation, federal defenders, whose salaries are paid by the government, and court-appointed private attorneys, who receive federal reimbursement when they are called in for service, could not legally be paid for representing clemency candidates.

The decision is a considerable setback for a coalition of legal and advocacy groups that has stepped in at the Justice Department’s behest to lead the clemency effort, which the department has heralded as a cornerstone of the administration’s criminal justice reform agenda.

It would sideline many lawyers who have come to know their clients’ cases intimately over years of work, requiring them to turn over the task of filing clemency petitions — which draw on a prisoner’s personal and legal history — to new attorneys.

From its inception in January, the administration’s clemency drive has relied heavily on the defense bar to carry out its vision, with the federal defenders assuming a lead role.

It was the Justice Department that brought in a hand-selected group of organizations, now known as the Clemency Project, to provide the legal expertise needed to vet the tens of thousands of federal inmates who might make for suitable clemency candidates and then to submit prepared petitions to the Justice Department’s Office of the Pardon Attorney, which will ultimately decide which ones to recommend to the president.

Underlying the clemency drive is the discrepancy in sentences thousands of federal inmates are serving and those they would have faced had they been arrested and tried under today’s prosecuting and sentencing reforms. The clemency effort would address concerns of fairness by shortening those sentences as well as alleviating the budgetary strain of the large federal prison population.

Ideal candidates would be nonviolent, low-level drug offenders without significant ties to large-scale criminal organizations. They would also have had to serve at least 10 years of their prison sentences, not have a significant history of crime or violence and have demonstrated good conduct in prison.

Federal defenders likely represent a majority of such inmates, making them a critical component of the effort.

Though the Administrative Office issued its decision yesterday, the Justice Department already notified all federal inmates in May of the initiative, distributing surveys through the Bureau of Prisons that referred them to the Clemency Project should they want to apply and stating they would be provided with a pro bono attorney to prepare their petition. More than 20,000 inmates have already responded, according to the project.

Similarly, the Clemency Project has already begun recruiting and training volunteer lawyers, and the federal defenders have taken a lead role in preparing the materials and conducting trainings.

Representation of indigent defendants in federal judicial proceedings falls under the Criminal Justice Act, which provides that the public pays for the service. In his memo, Loesche wrote that the act does not extend to petitions to the president for mercy, a process that is conducted wholly within the executive branch.

The memo left some leeway for federal defenders to remain involved in the process, saying they could be detailed to the Office of the Pardon Attorney. The Justice Department would have to pay the personnel costs of the federal defenders.

The memo also said the Federal Public Defenders Organization would not be precluded “from screening its client files to identify individuals who may satisfy the criteria established under this initiative or from reviewing files to assist another attorney representing a clemency applicant” but was unequivocal that “actual representation would have to be provided by others.”

Groups that make up the Clemency Project, including the National Association of Defense Lawyers, the American Civil Liberties Union, Families Against Mandatory Minimums and the American Bar Association, say they are currently reviewing the memo.

"Public defenders have [been] and are involved in the [Justice] Department's clemency process, primarily through Clemency Project 2014 on a pro bono basis," a Justice Department spokesperson said. "We expect them to continue to have a robust role to play."