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The Bureaucracy of Mercy

Why hasn’t President Obama freed more prisoners? Maybe that’s the wrong question.

As the two presidents, one incoming and the other outgoing, shared a limo to the inauguration in January 2009, President Bush had some advice for President-elect Obama: “Announce a pardon policy early on, and stick to it.” Bush had been stunned by a final-days flood of appeals for clemency on behalf of friends and former colleagues convicted of federal crimes.

“I came to see a massive injustice in the system,” Bush recalled in his memoir, “Decision Points.” “If you had connections to the president, you could insert your case into the last-minute frenzy. Otherwise, you had to wait for the Justice Department to conduct a review and make a recommendation.”

As he approaches his own last-minute frenzy, President Obama has embraced criminal justice reform —especially the problem of over-incarceration — as a major cause of his administration.

“Over the course of this year, I’ve been talking to people all across the country about reforming our criminal justice system to be fairer, to be smarter, to be more effective,” he said in a speech in November.

And yet Obama’s clemency record so far — counting commutations and pardons — lags behind every recent president except George H.W. Bush, who had only a single term. On pardons, which give ex-inmates a better chance to get jobs, find housing, vote and generally live normal lives, Obama is the stingiest full-term president since John Adams* — 64 granted so far, fewer than three percent of the petitions filed.

Executive clemency is one of the few powers clearly reserved for the president in the Constitution. It includes commutations (reducing sentences considered excessive) and pardons (cleaning the criminal record of freed prisoners deemed worthy of a second chance.)

Thanks to the punitive fervor of the war on drugs, by the time Obama took office federal prisons were packed with inmates serving sentences measured in decades for possession or minor trafficking. A bipartisan consensus was arising that America — with five percent of the world’s population and nearly 25 percent of its prisoners — had gone overboard.

Advocates who see the president’s power as a way to alleviate the excess see the process bogged down, as George W. Bush warned, in a Justice Department that lacks the attention (and, apparently, the will) to vet candidates for clemency.

In an October interview with The Marshall Project, Obama acknowledged the dismay of reform groups at the meager use of clemency and promised a “steady ramp-up” in the numbers. “I’m confident there are a lot more folks who qualify under the criteria that we’ve set forth than I’ve already acted on,” he said. “That means we’ve got to speed up the process.”

As it happens, a plan to reform clemency was already at hand on that Inauguration Day in 2009. President Obama’s White House counsel, Gregory B. Craig, was at work on a proposal to break the clemency logjam. He envisioned an expert commission, answerable directly to the White House rather than the Justice Department, to screen candidates for commutation by the president. President Ford had done something similar, to general acclaim, to review the cases of Vietnam draft evaders after the war.

“This is an important executive power that has wasted away because it’s been badly managed and politically mishandled,” Craig said in an interview.

Obama, afflicted by what Craig calls “full-plate-ism,” did not embrace his lawyer’s proposal.

But five years later, when the fiscal and human costs of protracted incarceration were becoming a bipartisan political cause, the administration finally decided to tinker with the system. The result is one of the oddest workarounds in the recent annals of bureaucracy: Clemency Project 2014.

Under CP14, as it is called, five outside interest groups – the American Bar Association, the American Civil Liberties Union, the National Association of Criminal Defense Lawyers, the Federal Defenders and a sentencing reform organization called Families Against Mandatory Minimums – were enlisted to speed the processing of clemency requests.

They mobilized an army of about 4,000 pro volunteer lawyers and law students to help inmates prepare applications for reduced sentences. Those cases that made it through CP14 would then presumably be steered into an E-Z Pass lane at the Justice Department and be on their way to the president’s desk.

Applicants to CP14 faced some high hurdles. They had to have been sentenced to at least ten years for crimes that, under today’s guidelines, would bring significantly shorter sentences. They had to have no connections to drug cartels, gangs or organized crime, and no history of violence. They had to have an unblemished record of good behavior in prison.

Even with those stringent tests, CP14 received applications from more than 33,000 federal inmates, according to Cynthia Roseberry, a veteran Georgia defense attorney who serves as project manager of CP14. Of those, 18,660 have been screened out as unqualified, and most of the rest are still oozing through the system.

The number who have been approved by the CP14 steering committee and sent to the pardon attorney in the Justice Department: 224.

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The number whose sentences have been commuted: 4.

In all, President Obama has commuted the sentences of 89 inmates, almost all of them having reached his desk without benefit of CP14.

The Obama administration’s attempt to speed things up – by all accounts well intentioned – has suffered a number of handicaps. The Clemency Project has a staff of six, occupying borrowed space and living on donations from legal advocacy groups, Roseberry said. The volunteer lawyers included some of the nation’s most accomplished, but few of them had any experience of clemency petitions. “Some patent lawyer or real estate lawyer that’s never touched a criminal case” has a lot to learn, Roseberry said. “Now that they’re on their second one, they understand a little better” how to analyze a case.

Complicating matters even more, the group with the most expertise in clemency – the Federal Defenders, who provide legal aid to the indigent in federal cases – was limited to a more peripheral role by an administrative judge. Then it took time to get inmates’ original pre-sentencing files from the Bureau of Prisons. And records from ten-year-old cases were not digitized.

“If you ask me, I’d like to see lots and lots more grants,” said Roseberry.

The Clemency Project Process
Applicants navigate a 10-step path before moving on to the Justice Department.

1

Inmate applies for shorter sentence

CP14 screens

CP14 assigns to a volunteer attorney

Attorney assembles a case for clemency

CP14 screening committee reviews

Screeners send to Steering Committee

Steering Committee reviews

Steering Committee accepts (must be unanimous) or rejects

If accepted, attorney prepares formal petition

CP14 sends to Justice Department

 

2

3

4

5

6

7

8

9

10

But to many advocates of reform, the numbers miss the larger point: after navigating the multi-stage process of CP14, applicants still had to pass through the Department of Justice, where the main job is to lock people up, not let people out.

Between prosecutors and defenders, says David Patton, head of the Federal Defenders of New York, there is “a difference in role and perspective.” Prosecutors, he said, are “less able to see things through the eyes of our clients, or through the eyes of anyone other than the prosecutor.”

“In some sense, by recommending that a sentence be reduced you are taking a position that is, in all likelihood, contrary to what DOJ took at the sentencing proceeding,” he said.

Top officials at the Justice Department publicly discount the idea that the department’s culture is hostile to clemency. “We’re not the Department of Prosecutions,” Deputy Attorney General Sally Yates told The Washington Post in May.

Various clemency advocates have different suggestions for change: an independent commission; restoring a federal parole board, which was abolished in the 1980’s, and having it handle commutations; or plucking the pardon attorney’s office from the Department of Justice and locating it in the White House. What they all have in common is reducing the role of the Justice Department.

“I would want prosecutors to weigh in on every case,” said Rachel Barkow, a New York University law professor and member of the U.S. Sentencing commission. ”But I wouldn’t want them to be a veto point, where they could just make a case go away. And that’s what it is right now.”

Margaret Colgate Love, a clemency lawyer who spent 20 years in the Justice Department and was the department’s pardon attorney from 1990 to 1997, agreed: “It’s hopeless, you can’t reform it in the department.”

But Love argues that the focus on presidential clemency is misplaced. Intended as a remedy for individual cases of injustice, she says, executive clemency should not be a tool to reduce prison populations.

Other vehicles exist for more systemic reform, she notes. The U.S. Sentencing Commission, an independent agency of the judicial branch, has found 46,000 inmates eligible for earlier release by making new sentencing guidelines for certain drug crimes retroactive. A bill inching through Congress would do the same for some 6,500 people locked up during the national panic over crack cocaine.

Love says that when she hears speculation about moving thousands of people through the clemency process she wonders, “How could anybody who had half a brain imagine that clemency could be used to deal with even a thousand cases? It’s never been done.”

Her prescription is to empower the Bureau of Prisons to identify prisoners ready for commutation and take those cases directly to a judge. “Wardens know who ought to be out, and who not,” she said. “Why should we be putting the president in the position of vouching for a whole bunch of people who did pretty serious crimes, many of them, and have been in prison for many years?”

No one expects any of these reforms to be enacted in the year Obama has left. Which will give him something to pass on to his successor at the next inauguration.

* = Presidents Garfield, Harrison and Taylor pardoned fewer than Obama, but all three died within months of taking office.