Last April, Attorney General at the Department of Justice in cadence with the Obama doctrine announced broader criteria for non-violent offenders serving sentences for narcotic crimes. This announcement set the table for the release of up to 200,000 criminals and the sentencing judges were never consulted nor were the police officers as part of the debate prior to this decision.
Almost a year later, Eric Holder’s ‘Smart on Crime’ operation has received thousands of applications for clemency and few cases have either been reviewed or granted. Questions are numerous most of all was this a ploy? It seems the Justice Department has turned to the ACLU. Another outsourcing operation to a complicit organization.
By Josh Gerstein
President Barack Obama’s sweeping plan to commute the sentences of nonviolent drug offenders who were caught up in the disparities in laws governing crack and powder cocaine is lagging, burdened by vague guidelines, lack of Justice Department resources and the unusual decision to invite advocacy groups like the ACLU to help screen applications, according to lawyers close to the process.
In the year since the Justice Department encouraged inmates to apply to cut short their sentences, more than 25,000 prisoners have come forward. But when Obama announced his annual commutations last month , only eight were given. That reflects deeper problems in the government’s process for reviewing sentences and determining which ones are, indeed, overly long because of the crack-powder distinction, according to those familiar with the system.
The differing treatment of what would otherwise be identical cocaine-related offenses is often attributed to racial bias, as federal lawmakers chose to take a far sterner approach to controlling the types of illegal drugs sold in inner-city America rather than in white-collar precincts. Obama has long decried the “unfair system” that often sent African-American drug criminals to jail for longer terms than their white counterparts.
“Because of a disparity in the law that is now recognized as unjust, they remain in prison, separated from their families and their communities, at a cost of millions of taxpayer dollars each year,” Obama declared in 2013.
But after vowing to review the sentences of potentially thousands of nonviolent offenders, Obama’s Justice Department has yet to make much progress, as inmates anxiously await decisions. Lawyers involved in the process say they are wrestling with the huge flood of applications and struggling to determine which judge-ordered sentences may have been influenced by the crack-powder disparity, amid a three- or even four-tier review process and the ever-present fear of releasing a prisoner who might go on to commit a violent crime.
“The resources are woefully inadequate to address this number of applications,” one lawyer involved in the process said. “It’s an enormous undertaking that was announced with great fanfare and promises being made without much consideration about the resources needed to get the promises fulfilled.”
With too few government lawyers available to handle the applications, the Obama administration has turned to private lawyers and groups to prepare the petitions. Four organizations — the American Civil Liberties Union, Families Against Mandatory Minimums, the National Association of Criminal Defense Lawyers and the American Bar Association — stepped up to form a consortium known as Clemency Project 2014 and to recruit more than 1,500 lawyers to handle the cases on a pro bono basis.
While any prisoner can submit a commutation request directly to the Justice Department, some lawyers claim that the close coordination between the Clemency Project and the administration suggests that prisoners going through the project will have a faster, inside track. The attorneys say comments from project organizers have reinforced that impression.
Administration officials insist the outside groups have no official role. All applications will be reviewed by Justice Department lawyers before recommendations are sent to the White House, they say. However, officials acknowledge that trained attorneys can help prisoners submit “well-prepared” applications that will speed processing by the relatively small staff at the department’s Office of the Pardon Attorney.
But even with the controversial assistance from outside groups, so far only a trickle of applications has been submitted by those organizations to the Justice Department, sources said. None of those were among the eight approved by Obama last month, all of which came from thousands of petitions already on file with the Justice Department.
“So many people are expecting a lot,” said Doug Berman, a prominent criminal-sentencing specialist and law professor at Ohio State University. “I just think we’re making it much too hard, too proceduralized and, until the president starts vindicating that work with lots of [positive] outcomes, I remain kind of cynical and frustrated.”
With so many thousands of petitions pending, the tiny number of commutations announced during the Christmas season prompted a new round of skepticism about the administration’s capacity to ease onerous drug sentencing.
“This is paltry,” said one lawyer familiar with the process. “It is very disappointing.”
“I’d be shocked if it skyrockets to 100 before [Obama] leaves office,” another added.
Obama’s aides say it’s too soon to begin to take stock of a clemency effort that was only formally announced in April, although Justice Department officials first discussed the plan publicly last January.
White House Counsel Neil Eggleston said the rate of commutations is likely to pick up from the eight granted this year. “I would anticipate an uptick of that number,” he said.
The White House lawyer also said the Justice Department is on the verge of working through a significant volume of cases: “I’m confident in the next short period of time their activity is going to ramp up.”
However, officials declined to discuss any numerical goals for the clemency drive or to provide any details on increased staffing to accommodate the clemency effort. In addition, the administration would not commit to having all the applications processed by the time the president leaves office.
At his year-end news conference, Obama didn’t directly reference his commutation drive, but he did signal a desire to make reducing the number of federal prisoners part of his legacy.
“This is the first time in 40 years where the federal prison population and the crime rate have gone down at the same time, which indicates the degree to which it is possible for us to think smarter about who we are incarcerating, how long, how we deal with nonviolent offenders, how we deal with drug offenders,” Obama said. “We can do a better job and save money by initiating some of these reforms.”
Outsourcing a presidential prerogative?
Obama’s drive to increase the number of presidential commutations has been fueled in part by his view that recent legislation reining in overly long drug sentences unwisely neglected to reduce the sentences of prisoners already serving long terms, current and former officials say.
But the relatively small Office of the Pardon Attorney wasn’t prepared to handle such a high volume of cases, so officials encouraged the groups forming the Clemency Project to recruit and train private attorneys to prepare applications. The organizations have instituted their own screening effort to try to determine if prisoners meet the criteria and to make sure the private lawyers spend time on meritorious cases.
Still, the involvement of advocacy groups is unusual and, to some, inappropriate. Some conservatives have complained that routing applications for early release through these organizations amounts to Obama abdicating responsibility for managing the clemency process.
“The question is, can the president outsource his clemency and pardon authority? And that’s what he seems to be doing here. It’s another case where the president, it appears, is abusing his authority,” said Tom Fitton of Judicial Watch. “These groups don’t share a concern for public safety.”
Some liberal-leaning lawyers and clemency advocates have their own complaints. They say the private consortium has taken on an outsize, quasi-official role in the process and has an inherent conflict of interest: Project organizers want to get the strongest possible applications to the Justice Department, which may mean abandoning prisoners whose cases fall into a gray area.
“It bothers me that you have a group of private citizens who have an under-the-table deal with the deputy attorney general to help him do his job and the promise is, ‘We’re going to put your guys at the front of the list,’” one lawyer involved said. “Instead of dealing with a process that’s already opaque and bureaucratic and too slow, they’ve added this additional layer that’s even more opaque and bureaucratic and too slow.”
A Justice Department official denied that applications by the Clemency Project will receive special treatment.
“We’re not giving Clemency Project 2014 any special priority,” said the official, who asked not to be named. “This is not to say applications coming from the Clemency Project might not possibly be of better quality,” the official added, alluding to officials’ hope that the project can help prisoners make their best case for early release.
In June, Judicial Watch filed a Freedom of Information Act lawsuit demanding correspondence between the outside groups and DOJ, hoping to expose backdoor deals between the Clemency Project and the government. A judge has given the department until February to respond.
In addition, sources told POLITICO that questions were also raised inside the project about whether its work with the Justice Department might fall under a sunshine law governing official advisory panels, which could require the groups to open their work to the public. However, DOJ lawyers who looked into the matter concluded the law does not apply.
Indeed, the Justice Department denies there is any official relationship between the consortium and the department. “They are not an advisory committee at all,” a Justice official said. “The Clemency Project is completely separate from us.”
Despite those assurances, the DOJ has clearly coordinated with the project. The Bureau of Prisons, which is under the Justice Department, sent roughly 200,000 federal inmates a survey last year that told prisoners they had the option to release their data to the project, “a group of experienced criminal defense and non-profit lawyers.” The survey included several messages from the project, such as “PLEASE BE PATIENT AS THE PROJECT WILL BE HEARING FROM MANY PRISONERS.”
The Justice Department also told prisoners that public defenders would prepare some commutation petitions, but those plans were upended in July when a legal opinion issued by the federal court system declared there was no authority for defenders on the federal payroll to represent prisoners in clemency proceedings.
In addition, attorneys inside and outside the project say it has been hamstrung by a fairly mundane problem: protracted delays in getting basic paperwork from courts such as probation reports and judges’ detailed explanations for why prisoners received particular sentences — documents readily available only to government lawyers or the defense attorneys assigned to a case.
“That’s sort of the sticky wicket in the process,” Clemency Project manager Cynthia Roseberry acknowledged in an interview. “The clog in the system is waiting for that data to come back.”
Few details on the reboot
Although the Justice Department has said it boosted staffing for the pardon attorney’s office in recent months to deal with the growing onslaught of applications it is already receiving directly from many inmates plus the wave expected from the Clemency Project, a spokeswoman declined to provide specifics.
However, a source familiar with the operation told POLITICO the small office roughly doubled in size last year, going from about six lawyers to about a dozen, with a roughly equal number of support staff. The official assigned to take over the office in April, Deborah Leff, has attempted to ramp up the work but “they aren’t giving her the resources she needs,” the source said.
Asked about the claim, a Justice official said: “We feel we have plenty of bodies to deal with the incoming.”
However, Justice Department officials declined repeated requests for an interview with Leff.
Just how many applications the Clemency Project has submitted to the Justice Department remains a mystery. An ACLU lawyer said the number submitted by the group so far was probably not even in the dozens.
A DOJ spokeswoman declined to say precisely how many petitions the project had submitted, as did officials from the groups involved, citing privacy concerns.
“I think it’s going well on the whole,” the ACLU’s Ezekiel Edwards maintained. “I think we are meeting what is, granted, a massive challenge, which is not to say that everyone involved, the federal government and our clemency project, could not use more resources so we could get through cases faster.”
Project officials said about 5,000 applications are being worked on at the moment by pro bono attorneys.
Despite having enlisted large law firms and some law schools to help, the Clemency Project’s Roseberry couldn’t say when screening would be complete: “That’s a difficult question for me to answer.”
Murky criteria
Adding to the challenge facing the hundreds of lawyers recruited to prepare early release applications are the vague and often complicated criteria for determining who’s eligible. Some of the guidelines the Obama administration laid out in April are straightforward, such as a requirement to have served at least 10 years in prison. Several others sound simple but aren’t, lawyers say.
To receive a commutation through the program, prisoners have to be “low-level” and “non-violent.” Yet, at least one prisoner who won a commutation from Obama a year ago — former Southern University football star Clarence Aaron — was deemed a “mid-level manager” of a drug operation, contributing to his original life sentence. There are also questions about whether an inmate can be considered “non-violent” if he or she had a gun while dealing drugs, had brandished a firearm but didn’t use it or had some record of violence as a juvenile — as many people serving long drug-related prison terms do.
Perhaps the most tricky criterion is that prisoners must show they would likely have received a substantially shorter sentence if they were sentenced under today’s laws. Sentences for some drug crimes tend to be shorter than a decade or two ago, due to an Obama administration-backed change in federal sentencing guidelines last year; a 2010 law Obama signed dialing back punishment for crack cocaine offenses; and a 2005 Supreme Court decision that gave judges more leeway to hand down sentences outside the guidelines.
For some prisoners, that’s an easy bar to get over. If a sentencing judge said explicitly at the time of sentencing or since then that he or she would have given a shorter sentence but was effectively forced to give a longer one, that convict could get a commutation.
But short of that, even Clemency Project organizers acknowledge that it is very difficult to say definitively that a prisoner “would likely have received” a shorter sentence today.
“Ask anyone who practices with the federal sentencing guidelines every day; it’s not an easy area of the law,” Edwards said.
A drive inspired by presidential frustration
The president’s power to pardon federal criminals or reduce their sentences is, in theory, a check on the vagaries of the justice system. But early in his presidency, Obama was struck by the seemingly trivial nature of many of the pardon cases that the Justice Department sent his way, current and former administration officials said. One case that crystallized the president’s concerns involved a Pennsylvania man convicted nearly 50 years ago for making fake dimes out of pennies in order to trick vending machines, a former official said; the man wanted the conviction expunged so he could buy a gun in his home state, which bars felons from owning firearms.
Obama granted that pardon in 2010, but it led to renewed discussions within the White House about broadening the commutation process to address bigger injustices in sentencing.
For a couple of years, some Obama aides tried to coax more recommendations for commutations out of the pardon attorney’s office. After that effort met with little success, the White House shifted course, pressing for a more systematic approach. The result was a plan finalized at the end of 2013 to lay down criteria for a broader clemency effort.
Last January, Attorney General Eric Holder began hinting about the changes and raising expectations for the effort. Speaking at the University of Virginia , he said there were probably thousands of prisoners in the federal system serving longer sentences than necessary.
“We put in place some pretty draconian sentencing measures, where people who were not engaged in the violent distribution of drugs ended up with 10, 20, 30 [years or] lifetime sentences,” Holder said. “It seems to me that some people are serving sentences that are far too long.”
Alluding to the political risks inherent in offering commutations, the attorney general also suggested that expanding clemency was a good second-term project for Obama.
Holder told an interviewer that the president, having raised the issue of sentencing disparities in his first term, would be “more willing” to look at broadening commutations in his second.
Despite Holder’s public backing for the clemency effort, he was not the driving force behind it. Holder has been hesitant to wade into such matters in part because of the political clobbering he took when, as deputy attorney general under President Bill Clinton, he failed to oppose Clinton’s pardon of the politically connected financier Marc Rich, current and former administration officials said.
“That was the most intense, most searing experience I’ve ever had as a lawyer,” Holder said at his confirmation hearing in 2009.
This time, Holder let Deputy Attorney General Jim Cole lay out the criteria for the commutations and announce the replacement of Ronald Rodgers, who had served as pardon attorney since 2008 and was viewed by clemency advocates as exceedingly conservative in his recommendations, among other shortcomings.
Cole called for fast action on Obama’s request for more deserving clemency cases.
“We are launching this clemency initiative in order to quickly and effectively identify appropriate candidates,” declared the deputy attorney general, whose office has generally had the final say on clemency recommendations sent to the president. “This is an issue that takes some time to work up, and we’ve been working on it for quite a while.”
For his part, Holder has continued to discuss the clemency idea, framing it in part as a way to combat racial unfairness in the justice system.
“It’s a civil rights issue and one that I’m determined to confront as long as I’m attorney general,” Holder said in a September interview with Yahoo News , expressing his hope that over the next months “we’ll start to see decisions being made.”
Asked about a report that thousands of drug convicts could be granted early release, Holder did not argue with the premise but offered no estimate of his own.
Obama has said little publicly about his clemency effort, but he has stressed the importance of a fair process.
“There are a lot of individuals in prisons in the United States who have committed crimes who would love to be released early,” Obama told Israel’s Channel 2 television last year in discussing a possible commutation for convicted spy Jonathan Pollard. “I’ve got to make sure that every individual is treated fairly and equally.”
Political risks and fallout
In a sign of the remarkable changes in the political climate on law and order, a project that would have generated a huge uproar from tough-on-crime Republicans a couple of decades ago has not produced major pushback from Congress. White House and Justice Department officials attribute the muted reaction in part to a growing realization among Republican leaders that the cost of locking people up for decades has become crushing.
Indeed, the Bureau of Prisons now accounts for roughly one-third of the Justice Department’s budget and that, in tight budgetary times, is beginning to put the squeeze on law enforcement agencies, like the FBI. Less fear about crime and changing attitudes about the drug war have also served to reduce public demands for severe prison terms.
Another indication of the huge shift on the issue: Even Bill Clinton, whose White House unabashedly pushed for longer sentences for drug offenders as part of its centrist strategy to triangulate against Democrats and Republicans, now agrees that the effort to put people behind bars for lengthy terms went too far.
“Some of it was unnecessary,” Clinton said in little-noticed comments to mayors and police chiefs in Arkansas in November. “The problem is we took a shotgun to it and just sent everybody to jail for too long.”
He added, “Anybody who’s been in law enforcement for a long period of time is partly responsible for the mess we’ve got, and I’ll take my fair share.”
Still, there are skeptics and even critics of Obama’s clemency drive. Rumbles of discontent have emerged from prominent Republicans such as House Judiciary Committee Chairman Bob Goodlatte of Virginia and incoming Senate Judiciary Committee Chairman Chuck Grassley of Iowa. And a few lawmakers have attacked the program directly.
“Isn’t it true that the prosecutor, the jury and judge who were actually handling that case would have had a much better opportunity to determine that sentence than someone in your office, five years down the road or 10 years down the road?” Rep. Randy Forbes (R-Va.) asked Holder at an April hearing.
The attorney general parried: “Well, except that the jury and the judge’s hands were tied at that time by the sentencing guidelines or by mandatory minimums that were tied to the amounts [of drugs] involved as opposed to the conduct that a particular person engaged in. And that is the wrong that we are trying to address.”
Some Republicans have linked the clemency scheme to Obama’s other executive actions in areas like immigration, arguing that he is again taking a power traditionally used sparingly and invoking it instead to make broad changes that should be accomplished by passing a law.
Even some supporters of sentence reductions say achieving them through presidential commutations is politically provocative — though clearly within Obama’s essentially unfettered constitutional power to grant executive clemency.
“This is the one power the framers left in there and preserved that was a king’s power,” said Berman, the sentencing expert. “We let the president be kinglike in this way.”
An alternative path considered and abandoned
In the earliest months of the Obama presidency, top White House officials considered a plan to grant commutations to hundreds or thousands of drug convicts in a way that might have been more efficient.
Then-White House Counsel Greg Craig championed a proposal to set up a blue-ribbon commission or independent agency — likely chaired by Republican and Democratic governors who’d granted a substantial number of commutations — to take over the clemency vetting process.
Craig has said the pardon process needs to be taken out of the Justice Department because of a perceived or actual conflict in having a department charged with prosecuting individuals also decide when the punishment imposed in such cases went too far.
“We cannot improve or strengthen the exercise of this power without taking it out of the Department of Justice,” the former White House counsel said in a 2012 speech . “There is, in DOJ, an institutional interest in preserving convictions and in preserving sentences.”
Craig’s idea was actively considered by officials in various agencies in early 2009 but faced bureaucratic resistance and questions about funding. It essentially died later that year when Craig resigned after finding himself at odds with White House chief of staff Rahm Emanuel and other key aides over other issues.
Many sentencing-reform advocates still contend that a commission, or another approach that directly involves having judges resentence prisoners under existing law, would be preferable to the one the White House eventually settled on: attempting to massively scale up the commutation system while having most of the legwork being done by outside lawyers.
There are several historical precedents for a clemency board. In 1974, President Gerald Ford set up a panel including figures like Democratic heavyweight Vernon Jordan and Notre Dame University President Father Theodore Hesburgh to wade through more than 21,000 applications for clemency from Vietnam War draft-dodgers. About two-thirds of the requests were granted in a year.
One benefit of the blue-ribbon panel approach, in the view of clemency advocates, is that it may insulate Obama from the political fallout of releasing a convict who ends up returning to crime or — in the worst case — committing a violent act. Nearly all current and former officials interviewed for this story mentioned the fear of a so-called “Willie Horton” — a Massachusetts prisoner granted early release (technically a furlough) who later committed rape and armed robbery. That series of events was used to great effect in Vice President George H.W. Bush’s campaign to defeat Massachusetts Gov. Michael Dukakis in the 1988 presidential race.
If high numbers of prisoners have their sentences commuted, at least some ex-prisoners will inevitably re-offend, said Julie Stewart of Families Against Mandatory Minimums. However, most have been in jail so long they’re unlikely to be violent, she argued.
“They’re letting them out in their 40s, 50s and 60s, when their criminal years have mostly aged out of them,” Stewart said.
Quieting some critics
One benefit to the administration of its current approach of working with outside groups is that it could mute criticism from advocates wrapped up in the effort — at least as long as there seems to be a prospect of a meaningful wave of commutations.
“They’ve co-opted all the people who would usually be critics,” said one lawyer close to the project. “You have that dynamic in play, and I’m not sure that’s a good thing.”
The Clemency Project groups insist their involvement hasn’t silenced them.
“We’re not shy about criticizing and litigating where necessary,” the ACLU’s Edwards said. “In terms of what [the administration is] trying to do on clemency, we’re incredibly encouraged. In no way does that mean we cease to discuss publicly our criticism of areas of the criminal justice system we think are deeply flawed.”
Underscoring that point, Stewart — despite her group’s involvement in the Clemency Project — called the eight commutations announced last month disappointingly small.
“Of course it’s disappointing there weren’t more commutations,” she said. “There should always be more, whether there’s any commutation initiative announced or not. It was paltry. Period.”
Stewart said she’s confident more commutations are on the way, though she added that it would be a “miracle” if 100 to 200 people win early release before Obama leaves office — numbers far lower than the thousands advocates contend are deserving.
“I think they’ve made enough noise about the clemency initiative that the White House means to stick to it,” Stewart said. Referring to the eight drug-case commutations Obama granted last month, she added: “It would be unbelievably embarrassing if they only did this.”
