by Margaret Love, former U.S. Pardon Attorney (1990-1997); and author of the ACS Issue Brief, “Reinvigorating the Federal Pardon Process: What the President Can Learn From the States.”
*This post first appeared on The Crime Report
On Monday, President Obama announced in a video address that he had commuted the sentences of 46 people sentenced to long prison terms for drug offenses. His counsel, Neil Eggleston, stated that, “While I expect the President will issue additional commutations and pardons before the end of his term, it is important to recognize that clemency alone will not fix decades of overly punitive sentencing policies.“
Mr. Eggleston added that “the President is committed to using all the tools at his disposal to remedy unfairness in our criminal justice system.” However, judging from the President's speech to the NAACP the next day, clemency is the only one of those tools that is calculated to result in any more prison releases.
The President has now issued 89 commutations, the most since Lyndon Johnson. But even if the President ends up granting triple that number or more, it will hardly make a dent in the number of those in prison potentially eligible for relief under the announced standards of the Administration’s clemency initiative. As Douglas Berman observed recently in his Sentencing Law and Policy blog, if the President one week were to commute as many as 80 federal drug prisoners, “this would still not be as substantively consequential for the federal prison population as the 400-plus drug defendants who will be sentenced to lengthy federal prison terms the very same week!”
Meanwhile, the system for administering the clemency initiative is reportedly having difficulty gaining traction. On July 4, The New York Times reported in a front page story that more than 30,000 federal prisoners have filed applications for commutation of sentence with Clemency Project 2014, the consortium of private organizations formed last year to assist the Justice Department in identifying worthy cases, but that a “cumbersome review process” has allowed only “a small fraction” of them to reach the President’s desk.
A press release issued by Clemency Project 2014 shortly after the grants were announced conceded that only four of the 46 cases had been submitted under its auspices, and a review of the recipients of clemency reveals that several did not satisfy the Justice Department’s declared eligibility requirement of ten years already spent in prison. Some prisoners have now expressed concern that perhaps the blessing of this Project was not the “fast track” to relief they had imagined.
There is a growing sense of urgency among those who are responsible for organizing the clemency effort, in the Department of Justice and in the private bar. In a recent training of volunteer counsel representing clemency applicants, Pardon Attorney Deborah Leff urged them not to delay in getting their clients’ petitions filed.
"If there is one message I want you to take away today, it's this: Sooner is better," Leff said.
Some federal public defender offices have been urged by Clemency Project 2014 to identify worthy applicants from among their client base and submit petitions for them prior to January 20, 2017, since it may take as much as a year for the Administration to review them.
But even with the extraordinary resources that have been devoted to identifying prisoners who meet the Justice Department’s eligibility criteria, it seems unlikely that this task can be given more than a lick and a promise before the clock runs out on President Obama’s term.