What the clemency initiative tells us about President Obama

At the end of his first term, President Obama had granted clemency to one person. Of course this led many people to conclude that he didn't care about criminal justice reform or correcting the racial disparities in that system - especially those created by our "war on drugs." As of this week, we know those conclusions were premature.

The shift started early in the President's second term when he basically announced an end to the war on drugs saying, "we simply cannot incarcerate our way out of the drug problem." Then last December, he commuted the sentences of eight federal prisoners who were serving long sentences due to crack cocaine convictions prior to the Fair Sentencing Act. Of course there were plenty of progressives who took that as an opportunity to talk about the thousands of others who were not granted clemency and lecture President Obama about the importance of courage.

But this was never about a lack of courage. Instead, its about a cultural bureaucracy that needed to be reformed.

The pardon attorney, former military judge Ronald Rodgers, sends his recommendations of whether or not to grant the petitions to the Deputy Attorney General’s office, which then sends them on to the White House. The pardon attorney was recommending that the president deny nearly every single petition for a pardon or a reduced sentence, according to one senior official in the Obama administration.

We also know that the President didn't like the kinds of recommendations that he was getting.

The president complained that the pardon attorney's office favored petitions from wealthy and connected people, who had good lawyers and knew how to game the system. The typical felon recommended for clemency by the pardon attorney was a hunter who wanted a pardon so that he could apply for a hunting license.

We are in the process of learning that the work on all this has been underway for quite some time. Armed with a scathing report from the Inspector General's Office that concluded in December 2012, Ronald Rodgers is now gone from the pardon attorney's office and will be replaced by Deborah Leff who has been Senior Counselor for Access to Justice at DOJ, an initiative launched in 2010 to:

...address the access-to-justice crisis in the criminal and civil justice system. ATJ's mission is to help the justice system efficiently deliver outcomes that are fair and accessible to all, irrespective of wealth and status.

Today, Assistant Attorney General Tom Cole (who oversees the pardon office) announced six criteria under which they will prioritize clemency applications.

1. They are currently serving a federal sentence in prison and, by operation of law, likely would have received a substantially lower sentence if convicted of the same offense(s) today;
2. They are non-violent, low-level offenders without significant ties to large scale criminal organizations, gangs or cartels;
3. They have served at least 10 years of their prison sentence;
4. They do not have a significant criminal history;
5. They have demonstrated good conduct in prison; and
6. They have no history of violence prior to or during their current term of imprisonment.

But it doesn't stop there. Back in January Deputy AG Cole gave a speech at the New York State Bar Association in which he asked for assistance in identifying appropriate clemency petitions. As a result, a group of independent outside groups and federal public defenders organized to provide legal assistance to potential applicants. The Bureau of Prisons will notify inmates of this initiative as well as these pro bono services and provide them with an electronic survey that will help them determine their eligibility. Finally...

Deputy Attorney General Cole sent a letter to all of the 93 U.S. attorneys asking for their assistance in identifying meritorious candidates and notifying them that the Pardon Attorney’s Office will be soliciting their views on petitions that appear to meet the criteria after an initial screening by the lawyers in the Office of the Pardon Attorney.

You see...it takes more than courage to do something like this right. President Obama is demonstrating that he's aware of the institutional and cultural barriers within the system that would line up to thwart an initiative like this. His administration has done the legwork to ensure that deserving inmates - regardless of their race and/or economic status - get access to this opportunity.

Holder told The Huffington Post that it was important for DOJ to "find people who are not traditionally thought of as good candidates" for clemency and "change the focus" of the Office of the Pardon Attorney.

"We have to have a process that I think works better, we need to come up with ways in which we identify people who are worthy of clemency, commutations, and not in the way I think we have traditionally done," Holder said.

That's what real reform looks like, folks. This initiative has been in the works for months (if not years) now.  My only remaining questions are "where has the media been while this has all been happening in plain sight?" And, "what other reforms are either completed or in the works that they're missing?"