Dozens of criminal justice reform activists have publicly told President Barack Obama his personal intervention is needed to keep the clemency initiative his administration announced in 2014 from falling victim to what a “bureaucratic logjam” at the Department of Justice (DOJ).
A joint letter went to the president on June 21 from more than 40 law professors, ex-judges and prosecutors, and representatives from such criminal law advocacy groups as Families Against Mandatory Minimums, the Justice Roundtable, The Sentencing Project and JustLeadershipUSA.
It praised the president for already issuing 348 sentence commutations — a total the White House has trumpeted as exceeding the combined total for the last six presidents before Obama — but warns almost 12,000 commutation petitions remain pending at DOJ, which reviews them and make recommendations on whether the president should act. At the current rate, the advocates’ letter predicted, the clemency program will “fall far short” of even making a cursory review, much less a thorough examination and recommendation on whether commutation is merited, for many applicants before Obama leaves office.
DOJ launched its Clemency Initiative 2014 in January of that year and set fairly strict criteria. To be considered for the program, a federal prisoner must have served at least 10 years of a sentence which, under present law, would likely be significantly less than under the law in effect when the inmate was originally sentenced. Applicants would also have to: been sentenced for non-violent offenses, lack both a serious earlier criminal record and significant ties to drug cartels or criminal gangs, and have demonstrated good behavior while in federal prison.
Federal prisoners were notified of the initiative by the Bureau of Prisons, and DOJ sought pro bono volunteers from non-profit groups and law firms to assist inmates to prepare their petitions. The resulting flood of petitions (over 36,000 were submitted) quickly overwhelmed the DOJ staff responsible for reviewing them; the activists’ letter noted that the first Pardon Attorney hired by DOJ to oversee the review process resigned in protest, complaining of insufficient staff to handle the applications.
The advocates’ letter estimated at least 1,500 applicants qualified for sentence commutation under program guidelines, and noted a DOJ official in one press account said the total for applicants qualified for sentencing relief approached 2,000. The advocates’ letter argued denying relief to eligible petitioners “because the process does not work” would work new hardship of them and their families, telling the president only he could prevent such an injustice.
Some signing the joint letter have argued President Obama should take broader steps on clemency. For instance, earlier in the month, three signatories — Marc Mauer of The Sentencing Project, Harvard Law lecturer and former federal judge Nancy Gertner, and UC Berkeley law professor Jonathan Simon – co-authored an article urging the president to consider providing across-the-board clemency for certain offenses, instead of requiring individualized review for specific individuals.
Like the broad amnesty provisions issued by Presidents Ford and Carter for Vietnam-era draft resisters, the authors argued, clemency could be extended for entire categories — such as the estimated 5,000 inmates still incarcerated for crack cocaine offense who were sentenced before 2010, when Congress eased sentences for such offenses, or repeat drug offenders who drew harsher sentences under a 1994 law.