On March 30, President Obama commuted the prison sentences of 61 federal prisoners – over a third of whom were serving life sentences, for drug or firearms offenses. After a White House event highlighting the clemency action, the president invited ex-inmates whose sentences had previously been commuted to join him for lunch at a local restaurant.
A White House statement noted the latest clemency actions bring the president’s total to 248 commutations, of which 92 were for prisoners serving life sentences. It added the Obama presidency’s total exceeds that for the six previous presidents combined. It did not observe, however, that until the Administration began a much-hyped clemency initiative two years ago, the president had granted just 10. (His use of presidential pardons has been similarly restrained.)
The president’s latest commutations drew scant praise from sentencing reform advocates. The New York Times, for example, editorialized it was “better than nothing,” but assailed lack of progress on the Administration’s clemency initiative — once seen as capable of freeing perhaps thousands of federal inmates serving unjustly long sentences, but now viewed as seriously underperforming.
In January 2014, a high-ranking Department of Justice (DOJ) official proclaimed that the Administration wanted new criteria for reviewing clemency petitions from federal prisoners serving lengthy sentences for non-violent crimes, especially those who would be serving significantly shorter terms if sentenced today. On April 23 that year, DOJ launched its Clemency Initiative.
DOJ spelled out six eligibility conditions for the new program. Inmates must already have served at least 10 years of a federal sentence that, due to intervening legal changes, would likely be significantly shorter now. They must also have been low-level, non-violent offenders without serious previous convictions or ties to gangs or drug cartels, and must have shown good conduct while incarcerated.
The Bureau of Prisons notified federal prisoners, and in what it called Clemency Project 2014, DOJ enlisted pro bono volunteers from law firms and five non-profit groups (among them the American Civil Liberties Union, the American Bar Association, and the National Association of Criminal Defense Lawyers) to help prepare prisoner applications. (Inmates can apply without a pro bono lawyer, or hire an attorney, but public defenders cannot assist).
At least 34,000 applications have come in: about 25,000 rejected, and over 10,000 still being processed at DOJ; it’s unknown how many applications are being prepared but haven’t yet been sent to DOJ. But it’s increasingly apparent the clemency initiative has had serious problems.
Almost from the start, the clemency initiative was criticized as ill-defined, overly bureaucratic, and understaffed. The attorney DOJ named at the start of the clemency initiative to run the office handling requests for pardons and commutations quit early this year, saying she could not get adequate staff resources or White House access. The Administration is seeking added funding in this year’s DOJ budget request, but the clemency initiative is scheduled to expire at the end of the Obama presidency.
Some critics say the clemency process will never work well as long as the Justice Department, loath to second-guess its own prosecutors, controls recommendations reaching the president’s desk. Others predict further commutations will be delayed until after the November elections, to avoid potential ‘Willie Horton’ problems – since if released inmates commit violent offenses, election prospects of clemency supporters could suffer.
Christopher Zoukis is the author of College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.com, PrisonEducation.com and PrisonLawBlog.com