An Update on President Obama's Clemency Initiative

Eight months ago, the Department of Justice announced the Obama administration's clemency initiative. The goal of this effort was to reform the Office of the Pardon Attorney - which is the department that serves as the liaison between DOJ and the President on recommending individuals for clemency. As was reported at the time:

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.

And so the person in charge of the Office of the Pardon Attorney was replaced by Deborah Leff and a new initiative was launched to commute the sentences of nonviolent drug offenders who were caught up in the disparities in laws governing crack and powder cocaine.

Along with many others, I was a bit disappointed that in December, all of this led to commutations for only 8 people currently in prison. But I've been keeping my eyes open for any reporting on how the process is going. The first comprehensive look at that came yesterday from Josh Gerstein. Of course he has to feed the cynicism beast by calling the whole thing a "quagmire" and searching desperately for reasons why its an absolute failure. But sifting out the wheat from the chaff, there are some helpful nuggets of information included.

The first thing that literally jumps off the page is that 25,000 prisoners have come forward since the initiative was announced. Since the President had previously criticized the process as favoring "wealthy and connected people," AG Holder set a different goal for this initiative.

"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.

Working with state bar associations, independent outside groups, U.S. Attorneys and the Bureau of Prisons, DOJ attempted to get the word out to all potential applicants about the process and the availability of pro bono attorneys to assist them in applying. I'd suggest that 25,000 people showing interest means they were successful in reaching the goal Holder identified as a first step.

The next stage is for eligible prisoners to fill out a clemency petition. Assisting in that process is a group of organizations called the Clemency Project. Given the volume of applicants they are dealing with, it should come as no surprise that in October 2014 the ABA (one of the participating organizations) put out a call for more volunteers.

Gerstein points out one of the biggest reasons (other than the sheer numbers involved) for delays.

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.”

Finally, clemency petitions are reviewed by staff in the Office of the Pardon Attorney for possible recommendations to the President. Here Gerstein reports that - even in the era of sequestration - that office has managed to double the amount of attorneys and staff working on this project. Of course, that means going from six attorneys to twelve - which is probably woefully too few.

Given all that, this is an initiative that will likely require a long term view in order to see it come to fruition. I would expect additional results as President Obama goes all in on initiatives like this in his "fourth quarter." But it will also behoove us to look for presidential candidates in the future who will commit to appointing an Attorney General that is likely to continue Eric Holder's efforts to reform our criminal justice system - especially projects like this.