Friday, July 17, 2015

Obama Can Free Thousands Of Drug Offenders Who Don't Belong In Prison--Will He?

...Despite his new interest in commutations, Obama’s clemency record so far (including pardons, which clear people’s records) makes him “the ninth least merciful president in U.S. history,” per Ruckman’s calculations. “He has not been bold,” Ruckman concludes. Earnest “seemed to want to brag that Obama has really accomplished a lot with 89 commutations, and my heart just sank. If ‘hope and change’ means we’re going to do just a little better than all the horrible presidents before us, that’s disheartening.”

There is still time, of course. But with just 18 months left in the Obama administration, the president will have to pick up his pace if he hopes to deliver the “hundreds, perhaps thousands” of commutations predicted by an unnamed “senior administration official” last year. Ruckman worries that a “last-minute splurge” like the one that generated so much controversy at the end of the Clinton administration will unfairly taint deserving recipients and discourage future presidents from using the clemency power. “Ideally, he would drop several dozen every week from now until the end of the term,” he says. “A steady trickle is the way to do it. That’s the way it was done throughout most of American history.”

It’s not clear that the Justice Department’s Office of the Pardon Attorney, which recommends clemency applicants to the president, is up to the task. Last year, when then-Deputy Attorney General James Cole publicly solicited help from the legal community in locating suitable candidates for commutation, the administration already had received 9,000 or so petitions. Since then, the total has grown to more than 17,000. Meanwhile, Clemency Project 2014, a consortium of nonprofit organizations formed in response to the administration’s plea for help, has been contacted by more than 30,000 prisoners but has sent the Justice Department only 50 or so applications, eight of which have been granted.

Part of the problem is the new commutation criteria that Cole announced in April 2014. Cole said the Justice Department would give special attention to petitions from “non-violent, low-level offenders” who have served at least 10 years of a sentence that probably would have been shorter under current law, “do not have a significant criminal history,” have “demonstrated good conduct in prison,” and have no “significant ties to large-scale criminal organizations, gangs or cartels.” Those requirements seem needlessly demanding. If someone got 10 years in prison for an offense that would be punishable by five years today, it hardly makes sense that he has to complete his term before he is eligible for commutation. And if the point is to correct punishments that do not fit the crime, why should prior convictions, gang ties, or misbehavior behind bars matter?
“It is an exceedingly narrow set of criteria,” says Sam Morison, a lawyer specializing in clemency who worked in the Office of the Pardon Attorney for 13 years during the Clinton and George W. Bush administrations. Even so, he says, “they should have no problem finding cases if they are really serious about it.” Morison worries that even if Obama sincerely wants to make up for lost time, he will face “pushback” from the Justice Department. “In my experience, it was not a lack of manpower” that blocked commutations, he says. “It was a lack of political will. The Justice Department wasn’t going to do it.”

Bush received about 8,500 commutation petitions, only six of which the DOJ thought were worthy of consideration. “No reasonable person believes that,” Morison says, but the Justice Department was “effectively in control of this process” because the president “only knows what DOJ tells him.” He recalls that Clinton and Bush both “complained that the Justice Department was being too strict and needed to lighten up,” but “the department just wouldn’t cooperate.” As evidence that such resistance remains a problem, Morison cites a recent New York Times report that White House Counsel Neil Eggleston “told the department not to interpret guidelines too narrowly because it is up to the president to decide.”

Earnest promises that Obama will use “executive authority to try to correct as many injustices as possible,” while urging Congress to “enact the kind of reforms that the president can’t by acting on his own.” But Obama can do a lot more than he has done so far, and his unused power will be especially important if Congress fails to pass significant sentencing reforms this year. “The president could largely fix this in an afternoon,” says Morrison, by issuing an “amnesty proclamation” that retroactively applies the lighter crack penalties that Congress approved in 2010, commuting sentences that would be shorter under current law. Families Against Mandatory Minimums says that change alone could help something like 8,800 prisoners.

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