Advocates who have long campaigned for clemency for federal inmates imprisoned for nonviolent drug offenses say they are thrilled that President Obama appears poised to commute dozens of such sentences. But they’re also frustrated with what they see as needless delays, both bureaucratic and political, that have slowed the pace of commutations.
These advocates also say Obama’s plans are only remarkable because of the timidity shown by recent presidents, including Obama himself, in wielding executive authority for one of its more controversial purposes. In recent decades, the president’s use of clemency has been tempered by political considerations, with the fear that granting clemency to a convict who reoffends could lead to a backlash.
“It’s preposterous to consider this revolutionary,” Dennis Cauchon, editor of the Clemency Report website, told BuzzFeed News of Obama's clemency push. “It’s only revolutionary in the very limited context of what today’s American politics allows.”
Since he began his second term, the president has indicated his willingness to use his clemency power more frequently. In his first four years in office, Obama commuted only one sentence; since his re-election, he has granted 42 commutations.
In 2010, the president signed into law the Fair Sentencing Act. The law reduced the startling 100:1 disparity in sentencing between crack and powder cocaine offenses, which had long resulted in more black people receiving lengthier prison sentences. In addition to eliminating a five-year mandatory minimum for crack possession, the new law reduced the sentencing ratio from 18:1.
In January 2014, the Justice Department began asking defense attorneys to aid the administration in finding suitable applications for clemency from more low-level drug offenders. Under criteria set by the Department of Justice, federal inmates could apply if they were nonviolent offenders, had no significant criminal history, had served more than 10 years in prison, had good behavior records, and would have received more lenient sentences under the new sentencing guidelines.
It’s unclear exactly how many commutations the president is seeking to grant, or if the administration intends to focus on offenses involving specific drugs, such as crack.
Inmates seeking free legal assistance with their applications for clemency have applied to the Clemency Project 2014, which has sorted through more than 26,000 inmate requests to be assigned one of the group’s 1,500 volunteer lawyers.
With such a large number of petitioners, progress has been slow, and, until now, very few applications have actually made it to the president, according to the New York Times.
Amy Ralston Povah, founder of CAN-DO, a group that advocates for clemency, told BuzzFeed News some of the inmates she is in touch with have been frustrated with the lawyers assigned to them. One inmate who tries to call her attorney from prison can never seem to make contact, she said.
“The prisoners’ lives are in the hands of people who don’t care,” Povah said. “They don’t have any impetus. There’s no sense of urgency coming from some of the lawyers.”
Povah and other campaigners said they had urged prisoners to directly petition the Justice Department because of the Clemency Project 2014’s slow pace. Indeed, the DOJ has received more than 6,000 direct applications since the administration’s call for more went out, according to the New York Times.
The Clemency Project 2014’s project manager, Cynthia W. Roseberry, defended the volunteer lawyers in a statement to BuzzFeed News. "We are heartened by the breadth and depth of commitment demonstrated by the private bar to voluntarily help the many prisoners who have sought pro bono assistance in evaluating their cases and filing petitions,” she said. “The support and commitment these attorneys have demonstrated are manifestly visible to anyone who has taken a serious look at the effort."
But others believe the process is unnecessarily burdensome and that officials have been constrained by procedures they themselves invented.
“[The presidential clemency power] is one line in the U.S. Constitution that has no procedures to it, no bureaucracy,” said Dennis Cauchon, who worked as a criminal justice reporter with USA Today before starting the Clemency Report website. “In classic lawyer fashion, though, it’s become an extremely cumbersome process.
“They’re all lawyers. Barack Obama’s even a lawyer. The whole process is run by lawyers,” he said.
The clemency process has played out as lawmakers from both parties have been urging for a change in drug and crime policies. As BuzzFeed News reported Tuesday, the federal government could be on the verge of a major shift in the way it prosecutes nonviolent drug offenders. Sen. Chuck Grassley, the Iowa Republican who chairs the Senate Judiciary Committee, may be set to support laws reforming mandatory-minimum sentences after decades of pushing a tough-on-crime approach, advocates said.
Paul Larkin, a former assistant to the solicitor general who now works as a legal fellow for the conservative Heritage Foundation think tank, told BuzzFeed News his group has been supportive of the nascent efforts by Congress to further reform drug sentencing. He also praised the Obama administration for its clemency push — to a point.
“The president is doing the right thing and deserves credit,” Larkin said. “He doesn’t deserve credit for waiting so long. He should have started this process back in 2013 when it became clear that Congress wasn’t going to act.”
Rich Rossman, executive director of the National Association of Former U.S. Attorneys, also told BuzzFeed News the delay in congressional action made the president’s clemency plans all the more urgent.
“It would be stepping into the field in a very significant way. I think it’s a great move,” Rossman said. “Congress moves so slowly these days, if at all, even though there’s bipartisan support here. There’s some real concern about whether they can get the job done.”
Some believe that by commuting a significant number of nonviolent drug offenders’ sentences, the president may lend momentum to the congressional efforts. Brooklyn District Attorney Ken Thompson, who in July 2014 announced he would not prosecute most low-level marijuana cases, told BuzzFeed News the president's actions may focus the public’s attention.
“His decision to grant them clemency will not only focus attention on our need, as a country, to deal with unnecessary mass incarceration, but will also allow those prisoners to redeem their lives and rejoin their families, which will make us all better off as a society,” he said.
Pardons and commutations have been controversial, and potentially politically dangerous, since former Massachusetts Gov. Michael Dukakis’ 1998 presidential campaign was scuttled in part by a controversy involving Willie Horton, a convicted murderer who raped a woman and assaulted her fiancé after being granted special leave from prison.
Although the Justice Department guidelines specify only nonviolent offenders can apply, Jon Adler, national president of the Federal Law Enforcement Officers Association, told BuzzFeed News he did not trust the risk-assessment model being used. “Sometimes this discussion portrays the prisoners in question as Woodstock hippies who received lengthy sentences for smoking a doobie peacefully in the wilderness,” he said. “I don’t think that’s who we’re talking about here.”
Larkin, with the Heritage Foundation, speculated the president may have been waiting until he no longer needed to worry about elections in order to begin the clemency process in earnest. The clemency process had become inherently political in recent decades, he said, blaming President Clinton for “poisoning the water” by controversially granting 140 pardons and 36 commutations on his last day in office. Among those to receive clemency was Roger Clinton, the president’s half-brother, who was pardoned for prior cocaine offenses, and Marc Rich, who was indicted on tax evasion and racketeering charges and whose former wife had donated to the Democratic Party.
“If you wait until [you’re] packed up and leaving the White House and issue a lot of questionable clemencies, it leaves the public with a very bad taste in their mouths and it takes a while for that to be undone,” he said.
Both Larkin and Cauchon said they hoped the clemency process could be normalized, so to say, if the president begins regularly granting a large number of commutations.
Clemency campaigners told BuzzFeed News they were hopeful that a flood of presidential commutations is imminent.
“It’s just been frustrating that it’s taken this long. We really wanted to see some action in the first term,” said CAN-DO's Povah, who served over nine years in prison after being implicated — she says falsely — in her then husband’s drug-trafficking network. (She was granted clemency by President Clinton in 2000 and released.)
“We would like to hear that it’s going to be hundreds,” she said. “For some reason, I think it’s going to be maybe 80. If that’s historic then it’s still falling short. But I understand there’s still time.”
Campaigners are also hoping that the administration does not concern itself solely with crack cocaine offenses, which have constituted the bulk of commutations already issued by the president (14 of the 22 sentences Obama commuted in March involved crack, along with six of the eight commutations he granted in December 2014).
Beth Curtis set up the website Life For Pot after her brother was imprisoned for life for marijuana trafficking. She told BuzzFeed News she supported the president granting clemency to those who received harsh sentences under the old crack cocaine laws, but hoped pot lifers would not be forgotten.
“I’m hoping for clemencies in the thousands,” Curtis said. “There is a little bit of skepticism because it’s been such a slow liftoff. It has been for everyone. We certainly hope that they will start rolling them out in grand numbers.”
Does she hope her brother is among them? “I hope my brother is the next one, of course.”
“It’s a kind of ache that doesn’t go away, to think that that happened to someone you love," she said. "It’s very difficult.”