Concerns About Sentencing Fairness Spark Clemency Rule Reforms

(May 30, 2014) Since 1980, our federal prison population has grown by 800 percent. The federal prison system is now nearly 40 percent over capacity.  As a result of mandatory minimum sentencing guidelines (now widely maligned), thousands of federal prisoners are serving harsh sentences for nonviolent offenses, including life without parole. Many federal prisoners would receive substantially shorter sentences for the exact same crime if they were sentenced under current law.

Despite conservative performance from the Obama administration on pardons and commutations to date, recent changes regarding clemency are aimed towards the broader effort to modify sentencing laws. While they support legislative changes favoring rehabilitation and other alternatives to deal with non-violent drug offenses, Obama’s team is poised to expedite clemency applications for those previously ensnared by tough mandatory minimum sentences.

“For our criminal justice system to be effective, it needs to not only be fair; but it also must be perceived as being fair” explains Deputy Attorney General James M. Cole.  “Older, stringent punishments that are out of line with sentences imposed under today’s laws erode people’s confidence in our criminal justice system, and I am confident that this initiative will go far to promote the most fundamental of American ideals – equal justice under law.”

The New Rules:

Under the new initiative, clemency applications will be evaluated by the DOJ based on federal inmates who are deemed to present no public safety risk and have met all of the following six criteria:

  • Currently serving a federal sentence in prison for which they likely would have received a substantially lower sentence if convicted of the same offense(s) today;
  • Non-violent, low-level offenders without significant ties to large scale criminal organizations, gangs or cartels;
  • At least 10 years of their prison sentence has already been served;
  • No significant criminal history;
  • Good conduct demonstrated in prison; and
  • No history of violence prior to or during their current term of imprisonment.

Eligible prisoners not limited to those with drug violations, and there are no minimum sentence requirements for consideration.

Even on their face, these criteria could apply to as many as 2,000 of the 200,000 in the federal prison system.  Some discretion or interpretation may result from the ambiguity of the guidelines.  For example, what constitutes “significant criminal history,” or “good conduct” in prison? Accordingly, one of the key short-term challenges will be in prioritizing the eligible candidates, a task which will fall to government and pro-bono volunteer lawyers.

A number of groups have collaborated to advance this issue to support petitioners and bring their cases to the attention of the President, including the ACLU, Federal Defenders, Families Against Mandatory Minimums, the American Bar Association, and National Association of Criminal Defense Lawyers.  These groups have formed Clemency Project 2014, a working group to provide pro bono assistance to federal prisoners who meet the new clemency criteria. The Department of Justice has also contributed to the effort by streamlining its process, paving the way for online applications, and appointing Debby Leff, former Acting Senior Counselor for Access to Justice, as head of the Office of the Pardon Attorney.

While such reforms are a momentous step towards undoing the damage done by excessive federal sentencing laws, it is no substitute for systemic reform.  The burgeoning federal criminal justice system may only be rebalanced by Congress passing long term legislative solutions.  One pending bill is the Smarter Sentencing Act which has attracted bipartisan support.  Such an Act would reduce the mandatory minimum for some drug offences, and will free those who received sentences during a period of harsh crackdowns and disparities in sentencing and enforcement.

If you would like more information about the new clemency guidelines, or seek representation, contact our office for an evaluation.