By Margaret Love, who now represents applicants for pardon and commutation. Love previously served as U.S. Pardon Attorney under Presidents George H. W. Bush and Bill Clinton.
At a recent oral argument in a case involving the crack cocaine sentencing guidelines, Supreme Court Justice Anthony Kennedy asked Assistant Solicitor General Leondra Kruger, "Does the Justice Department ever make recommendations that prisoners like this have their sentence commuted?"
It was a question that stumped Ms. Kruger. The answer should have been "not very often."
On second thought, make that "hardly ever."
The prisoner was Percy Dillon, sentenced in 1993 to 27 years in prison for trafficking in crack cocaine. Dillon was asking the Court to decide whether the U.S. Sentencing Commission had acted properly in limiting courts' ability to modify previously-imposed sentences in the wake of Congress' 2007 reduction in the crack guidelines. If Dillon lost his case, he would spend another three years in prison.
Dillon seemed to strike Justice Kennedy as a particularly appealing candidate for clemency: his sentencing judge had called his original sentence "unfair" and "entirely too high," and Dillon had spent 16 years compiling an impressive prison record of educational outreach to fellow inmates and at-risk youth in the community.
Getting no answer from the government to his question about the frequency of the Justice Department's clemency recommendations, Justice Kennedy observed that there had been no sentence commutations in 2009 and only five the year before. "Does this show that something is not working in the system?"