The Obama administration announced an effort this week to increase the number of clemency applications it receives, a change that is likely to trigger thousands of petitions.
The move is meant to foster equity in a criminal justice system where thousands of low-level, nonviolent inmates — many of whom were arrested on drug charges — are serving unduly long sentences because of federal sentencing guidelines.
But the idea of opening up the doors to a wave of clemency applications took many by surprise — especially since President Obama has been reluctant to use the power.
Obama has granted the fewest number of pardons and commutations of any president since Dwight D. Eisenhower. Obama has granted 52 pardons and commuted 10 sentences in 62 1/2 months. He has received 1,641 petitions for pardons and 10,490 for commutations.
During his 48 months in office, Jimmy Carter granted 534 pardons and commuted 29 sentences.
Pardons absolve someone of a crime and cancel out his or her sentence. Commutation releases someone from prison early, and that's what Obama is pushing for to rectify what he sees as an unfair system that forced thousands into prison sentences disproportionate to their crimes. Bill Clinton commuted 61 sentences and George W. Bush only 11. Clinton issued 396 pardons and Bush 189.
So what do the commutations that Obama has granted say about how he thinks about clemency and the criminal justice system? Let's take a look at the most recent cases.
Obama granted clemency to 21 people in December, cutting short the sentences of eight people and pardoning 13. Last week he shortened the sentence of a man whose prison term was made longer by a typo.
About two-thirds of the people to whom Obama granted clemency were in prison for drug charges. This underscores the administration's push to move away from the harsh mandatory minimum drug sentencing guidelines that were put in place during the crack epidemic of the 1980s and '90s.
Stephanie Yvette George of Pensacola, Fla., was one of the people whose sentence was cut short. George, a mother of four, dated a number of drug dealers, and, according to Families Against Mandatory Minimums, an advocacy group, sold and delivered drugs for some of them. She was found guilty of conspiracy to possess cocaine base with intent to distribute and sentenced to life in prison. She was released from prison last week.
Clarence Aaron of Mobile, Ala., was sentenced to three life terms at age 24, convicted of multiple cocaine charges. His case was taken up by advocates and the media, including The Washington Post and ProPublica, which jointly reported that a government pardon attorney misrepresented Aaron's case to President George W. Bush. These were Aaron's first criminal charges. He was scheduled to be released from prison April 17.
Reynolds Allen Wintersmith, Jr. of Rockford, Ill., was arrested and sentenced to life in prison on charges of conspiracy to possess with intent to distribute cocaine and cocaine base and possession with intent to distribute crack. Advocates said he was the nation's first juvenile first-time nonviolent offender to be arrested and sentenced to life in prison under the drug laws at the time. Wintersmith is a first cousin of Massachusetts Gov. Deval Patrick, but Patrick said he does not recall meeting Wintersmith and did not advocate on his behalf. He was also scheduled to be released April 17.
The common thread: These were all first-time, nonviolent offenders who were sentenced to life in prison because those were the guidelines at the time. And those are exactly the types of prisoners Obama is hoping will come forward and send in applications for commutation. The administration is focusing on offenders who have served at least 10 years of a drug sentence, don't have a long criminal history and have no ties to gangs. In December, Obama said in a statement that the disparities in the law at the time were "unjust."
While Obama has used has commutation power infrequently, a senior White House official said Obama was behind the new rules and ordered the Justice Department to look for prisoners who could be eligible for clemency. Obama thought he wasn't seeing as many meritorious applications as were out there, and he wanted to make sure everyone who was eligible for clemency had a fair shot at receiving it. The Department of Justice is ordering all federal prisoners to be notified of the change.
Obama began this push in 2010 when he signed the Fair Sentencing Act, which reduced the sentencing disparities for crack and powder cocaine. However, thousands of people sentenced before the change are still serving federally mandated sentences for trafficking or the intent to traffic cocaine.
Most presidents didn't wait until the second half of their second term to commute sentences, according to Mark Osler, a professor at the University of St. Thomas Law School. But the tactic, which presidents formerly used often, has been spottily applied in the past few decades.
"One of the problems with clemency over the past 40 years is that it’s herky-jerky, and it wasn’t that way historically," he said. "It was something that was seen as a regular responsibility of the president."
Even White House counsel Kathryn Ruemmler said commutation is an "extraordinary and unusual remedy," and the president shouldn't be viewed as "an alternative appellate forum where he may substitute his own view of what an appropriate sentence might be,” she said at New York University earlier this month.
But how many people will actually benefit from the push? The criteria for clemency under the new rules are rather strict. An inmate must:
- Have received a lower sentence if convicted of the same offense now
- Be a nonviolent offender
- Have no ties to gangs or criminal organizations
- Have no criminal history or history of violence
- Have demonstrated good conduct in prison
The pool of eligible applicants could be large, said Elizabeth Rapaport, an emeritus professor of law and professor of philosophy at the University of New Mexico School of Law. But it may not include everyone who may be a potential candidate for clemency.
"Even if this was done comprehensively, it would not be a full use of the clemency power," she said. "It would not be enough to review everybody who is so transformed or so over-punished that they deserve a second chance.”
However, Rapaport, who has led the law school's clemency program, said this will again use a presidential power that had become rare.
"I’m sitting up and taking notice," she said. "I really feel that there will be a lot of clemency by contemporary standards."