Pubdate: Sat, 04 Jul 2015
Source: New York Times (NY)
Copyright: 2015 The New York Times Company
Author: Peter Baker


WASHINGTON - Sometime in the next few weeks, aides expect President 
Obama to issue orders freeing dozens of federal prisoners locked up 
on nonviolent drug offenses. With the stroke of his pen, he will 
probably commute more sentences at one time than any president has in 
nearly half a century.

The expansive use of his clemency power is part of a broader effort 
by Mr. Obama to correct what he sees as the excesses of the past, 
when politicians eager to be tough on crime threw away the key even 
for minor criminals. With many Republicans and Democrats now agreeing 
that the nation went too far, Mr. Obama holds the power to unlock 
that prison door, especially for young African-American and Hispanic 
men disproportionately affected.

But even as he exercises authority more assertively than any of his 
modern predecessors, Mr. Obama has only begun to tackle the problem 
he has identified. In the next weeks, the total number of 
commutations for Mr. Obama's presidency may surpass 80, but more than 
30,000 federal inmates have come forward in response to his 
administration's call for clemency applications. A cumbersome review 
process has advanced only a small fraction of them. And just a small 
fraction of those have reached the president's desk for a signature.

"I think they honestly want to address some of the people who have 
been oversentenced in the last 30 years," said Julie Stewart, the 
founder and president of Families Against Mandatory Minimums, a group 
advocating changes in sentencing. "I'm not sure they envisioned that 
it would be as complicated as it is, but it has become more 
complicated, whether it needs to be or not, and that's what has 
bogged down the process."

Overhauling the criminal justice system has become a bipartisan 
venture. Like Mr. Obama, Republicans running for his job are calling 
for systemic changes. Lawmakers from both parties are collaborating 
on legislation. And the United States Sentencing Commission has 
revised guidelines for drug offenders, so far retroactively reducing 
sentences for more than 9,500 inmates, nearly three-quarters of them 
black or Hispanic.

The drive to recalibrate the system has brought together groups from 
across the political spectrum. The Center for American Progress, a 
liberal advocacy organization with close ties to the White House and 
Bill and Hillary Rodham Clinton, has teamed up with Koch Industries, 
the conglomerate owned by the conservative brothers Charles G. and 
David H. Koch, who finance Republican candidates, to press for 
reducing prison populations and overhauling sentencing.

"It's a time when conservatives and liberals and libertarians and 
lots of different people on the political spectrum" have "come 
together in order to focus attention on excessive sentences, the 
costs and the like, and the need to correct some of those excesses," 
said Neil Eggleston, the White House counsel who recommends clemency 
petitions to Mr. Obama. "So I think the president sees the 
commutations as a piece of that entire process."

The challenge has been finding a way to use Mr. Obama's clemency 
power in the face of bureaucratic and legal hurdles without making a 
mistake that would be devastating to the effort's political 
viability. The White House has not forgotten the legacy of Willie 
Horton, a convicted murderer who raped a woman while furloughed from 
prison and became a powerful political symbol that helped doom the 
presidential candidacy of Gov. Michael S. Dukakis of Massachusetts in 1988.

But with time running short in Mr. Obama's presidency, the White 
House has pushed the Justice Department to send more applicants more 
quickly. Mr. Eggleston told the department not to interpret 
guidelines too narrowly because it is up to the president to decide, 
according to officials. If it seems like a close case, he told the 
department to send it over.

Deborah Leff, the department's pardon attorney, has likewise pressed 
lawyers representing candidates for clemency to hurry up and send 
more cases her way. "If there is one message I want you to take away 
today, it's this: Sooner is better," she told lawyers in a video 
seminar obtained by USA Today. "Delaying is not helpful."

Under the Constitution, the president has the power to grant "pardons 
for offenses against the United States" or to commute federal 
sentences. A pardon is an act of presidential forgiveness and wipes 
away any remaining legal liabilities from a conviction. A commutation 
reduces a sentence but does not eliminate a conviction or restore 
civil rights lost as a result of the conviction.

In recent times, attention has focused on presidential pardons 
because they have become politically controversial, such as Gerald R. 
Ford's pardon of Richard M. Nixon, the elder George Bush's pardons of 
Iran-contra figures and Bill Clinton's pardons of the financier Marc 
Rich and scores of others.

Modern presidents have been far less likely to commute sentences. 
Lyndon B. Johnson commuted the sentences of 80 convicted criminals in 
the 1966 fiscal year, and no president since then has matched that in 
his entire administration, much less in a single year. Ronald Reagan 
commuted only 13 sentences in eight years in office, while George W. 
Bush commuted just 11 in the same amount of time. The elder Mr. Bush 
commuted three sentences in his four years.

Mr. Obama started out much like the others, commuting just one 
sentence in his first five years in office. But in his first term he 
signed a law easing sentencing for new inmates by reducing the 
disparity between crack and powder cocaine, while his attorney 
general, Eric H. Holder Jr., issued new guidelines to prosecutors to 
avoid charges requiring excessive prison terms.

In his second term, Mr. Obama embarked on an effort to use clemency 
and has raised his total commutations to 43, a number he may double 
this month. The initiative was begun last year by James M. Cole, then 
the deputy attorney general, who set criteria for who might qualify: 
generally nonviolent inmates who have served more than 10 years in 
prison, have behaved well while incarcerated and would not have 
received as lengthy a sentence under today's revised rules.

"It's a touchy situation," Mr. Cole said in an interview. "You don't 
want to just supplant a judge's determination of sentence." But after 
reviewing many clemency petitions, he said, "I'd seen a number of 
them where the sentences seemed very high for the conduct and it 
noted that the judge at the time of sentencing thought the sentence 
was too high. We looked at that and thought this really isn't 
supplanting the judge."

To respond to Mr. Cole's call, several groups formed a consortium of 
lawyers to prepare applications for inmates, including the American 
Bar Association, the American Civil Liberties Union, the National 
Association of Criminal Defense Lawyers and Ms. Stewart's advocacy 
group. The more than 30,000 inmates who applied inundated the effort.

The consortium, called Clemency Project 2014, now has more than 50 
law firms, more than 20 law schools and more than 1,500 lawyers 
participating. But the process is burdensome as the volunteer lawyers 
try to dig out documents from more than a decade ago to satisfy the 
criteria. So far, they have screened out 13,000 inmates who did not 
meet the guidelines and sent just over 50 applications to the Justice 

Cynthia W. Roseberry, who left her job as a top federal public 
defender in Georgia to lead the project, said it took a while to set 
up a process but it has now been streamlined. "The lawyers will be 
able to do the analysis a lot quicker and we'll be able to move them 
faster," she said.

Aside from the Clemency Project, the Justice Department has received 
more than 6,600 applications for commutations since Mr. Cole outlined 
the criteria, more than twice the rate over a similar period earlier 
in Mr. Obama's presidency. Ms. Leff, the pardon attorney, has 
solicited volunteers from around the department to give a day or more 
a week to help out, but her office is taxed. The White House has 
asked Congress to increase funding for the office from $3.9 million 
this year to $5.9 million next year.

Margaret Love, who served as pardon attorney under the first Mr. Bush 
and Mr. Clinton and now represents prisoners applying for clemency, 
said the process had become a mess. "It's really poor management," 
she said. "These are people who don't have any history with sentence 
reduction. They've been putting people in prison all their lives. 
They don't know how to get them out."

Senator Charles E. Grassley of Iowa, the Republican chairman of the 
Judiciary Committee, has expressed concern that the Justice 
Department has essentially outsourced a government function to the 
Clemency Project 2014. Department officials dispute that, saying the 
project does the same thing lawyers have always done in helping 
candidates for clemency prepare applications.

The department noted that it still reviews the cases and makes it own 
judgments before sending recommendations to the White House. 
Officials acknowledged that it was slow in starting the effort. 
"There was a start-up time, but now we're really in it," said Emily 
Pierce, a department spokeswoman. "We feel we're moving at a good pace."

In December, Mr. Obama commuted the sentences of eight drug 
offenders, and in March he followed up with 22 more. If he accepts 
most of the latest applications sent to the White House, some 
officials said it would probably double that last batch of 22, 
exceeding the 36 commutations Mr. Clinton issued at one time on his 
last day in office.

Among those Mr. Obama granted clemency in March were eight prisoners 
serving life sentences for crimes like possession with intent to 
distribute cocaine, growing more than 1,000 marijuana plants or 
possession of a firearm by a convicted felon.

Mr. Obama signed letters to the recipients explaining that they had 
demonstrated the potential to turn their lives around. "By doing so, 
you will affect not only your own life, but those close to you," he 
wrote. "You will also influence, through your example, the 
possibility that others in your circumstances get their own second 
chance in the future.

"I believe in your ability to prove the doubters wrong," he added. 
"So good luck, and Godspeed."
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MAP posted-by: Jay Bergstrom