Struggling to fix a ‘broken’ system

Struggling to fix a ‘broken’ system

For many drug offenders, their only hope is President Obama’s clemency power. And his time is running out.

Published on December 5, 2015

The summer after President Obama began his second term in office, he and then-Attorney General Eric H. Holder Jr. were relaxing and watching fireworks from a porch on Martha’s Vineyard. Holder was about to interrupt his family vacation to fly to San Francisco and deliver a speech unveiling their plans to make the most significant changes in the country’s criminal justice system in decades.

Above: President Obama walks away with Eric H. Holder Jr. after he announced his resignation as attorney general in September 2014. (Win McNamee/Getty Images)

“I’m the only one who hasn’t seen your speech,” Obama said teasingly to Holder while the two enjoyed drinks and appetizers at the rented beach house of the president’s senior adviser, Valerie Jarrett.

Above: President Obama walks away with Eric H. Holder Jr. after he announced his resignation as attorney general in September 2014. (Win McNamee/Getty Images)
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UNWINDING THE DRUG WAR
This story is the eighth in a continuing series about the legacy of the war on drugs and efforts to reduce the nation's prison population.
Click to read Part I: The painful price of aging in prison

Click to read Part II: Against his better judgment

Click to read Part III: From a first arrest to a life sentence

Click to read Part IV: Unlikely allies push for sentencing reform

Click to read Part V: Out of prison, slow steps to freedom

Click to read Part VI: In Calif., A 'virtual get-out-of-jail-free card'

Click to read Part VII: Softening sentences, losing leverage

But the president really already knew what Holder planned to say.

The text was the culmination of countless conversations over the years between Holder and Obama about how this country prosecutes and incarcerates its citizens. Obama had seen the racial disparities of the decades-long war on drugs close up as a community organizer on the South Side of Chicago; Holder experienced them as a former D.C. judge and prosecutor. The two men met in 2004 at a small Washington dinner party shortly after Obama was elected to the Senate, and there was an instant connection. “We share a world view,” Holder said recently. “We kind of feel each other.”

Now, they were finally ready to act. Some of Holder’s top advisers were nervous about his speech, which was to be delivered before the American Bar Association, and wanted him to take out a word they thought was too strong. Early in the president’s term, Holder had set off a political firestorm by slipping a controversial phrase into a speech — without running it by the White House first. But this time he knew the president had his back and he left the word in.

Holder in 2013 announced plans for major changes in the sentencing of federal drug crimes during the American Bar Association's annual meeting in San Francisco. (Justin Sullivan/Getty Images)

“While I have the utmost faith in — and dedication to — America’s legal system, we must face the reality that, as it stands, our system is in too many ways broken,” Holder told the hundreds of lawyers who filled the Moscone Center West that morning in August 2013, emphasizing the much-debated word: broken.

Laying out a three-part plan he called “Smart on Crime,” Holder said that he was directing his prosecutors nationwide to stop bringing charges that would impose harsh mandatory minimum sentences, except in the most egregious cases.

He called for more compassionate release of aging and ill inmates, more drug diversion programs as alternatives to prison and spoke of “shameful” sentencing disparities, a hint of Obama’s plans to use his clemency power to correct the disparities and release certain drug offenders early.

Holder’s remarks were interrupted with applause and he received a standing ovation at the end. As he left the podium, an ABA official leaned over. “Courageous speech,” he said. It was front-page news across the country.

Nearly 21/2 years later, the administration’s major criminal justice overhaul has yielded mixed results. Obama and Holder helped launch a national conversation about mass incarceration. Last year, federal prosecutors pursued mandatory minimum sentences at the lowest rate on record — and sentencing reform legislation with bipartisan support has been introduced in Congress.

Video: Eric Holder discusses how many inmates might be released under clemency initiative

Play Video

President Obama has granted clemency to 89 inmates so far. In an interview with The Washington Post, Holder says that early estimations of inmates who could be granted clemency were as high as 10,000. (Alice Li/The Washington Post)

But some prosecutors are continuing to resist changes to mandatory minimum sentencing. The initiative has also not yet made a significant dent in the number of inmates crowded into federal prisons. Only 25 of the 531 elderly inmates who have applied for compassionate release under the new policy have received it.

And in the key executive action that Obama can take to undo unfair sentences, he has only granted clemency to 89 inmates of the thousands of federal drug offenders who have applied. The president is expected to grant clemency to about another 100 prisoners in the coming weeks.

But Holder said he initially thought that as many as 10,000 of the federal prison’s nearly 200,000 inmates “were potentially going to be released” under the new clemency initiative. Other Justice officials say the number is closer to 1,000 or 2,000.

Criminal justice reform advocates are criticizing the president for moving too slowly and are calling on him to speed up the clemency process before his administration runs out of time.

“Given the president’s repeated concern about the numbers of people in prison serving excessive sentences, he has done little to alleviate the problem through clemency,” said Julie Stewart, president and founder of Families Against Mandatory Minimums. “The president has all the constitutional authority he needs to do the right thing. Failure here cannot be blamed on partisanship in Congress. If the president wants to correct past injustices, he can.”

Federal prisoners applying for clemency

As of November, about 15 percent of the U.S. federal prison population had applied for clemency under the Justice Department Initiative, which began in the spring of 2014. If drug offenders meet the criteria set out by the Justice Department, their petitions are sent to President Obama, who can commute their sentences and allow them to be released early.

214,149

TOTAL INMATES

Spring 2014

INMATES WHO

DID NOT APPLY

FOR CLEMENCY

Clemencies granted

181,149

89

9,115

33,000

Clemencies pending government approval*

APPLIED FOR CLEMENCY

*About 100 may be granted in December.

Note: The federal prison population as of Dec. 4 was 197,645.

Sources: Department of Justice, White House, Clemency Project 2014

THE WASHINGTON POST

214,149 FEDERAL INMATES, SPRING 2014

As of November, about 15 percent of the U.S. federal prison population had applied for clemency under the Justice Department Initiative, which began in the spring of 2014. If drug offenders meet the criteria set out by the Justice Department, their petitions are sent to President Obama, who can commute their sentences and allow them to be released early.

33,000 APPLIED FOR CLEMENCY

9,115 ARE PENDING GOVERNMENT APPROVAL

89

100

MAY BE GRANTED IN DECEMBER

HAVE BEEN GRANTED

Note: The federal prison population as of Dec. 4 was 197,645.

Sources: Department of Justice, White House, Clemency Project 2014

THE WASHINGTON POST

214,149 FEDERAL INMATES, SPRING 2014

As of November, about 15 percent of the U.S. federal prison population had applied for clemency under the Justice Department Initiative, which began in the spring of 2014. If drug offenders meet the criteria set out by the Justice Department, their petitions are sent to President Obama, who can commute their sentences and allow them to be released early.

Portion of total federal prisoners shown in this graphic

33,000 APPLIED FOR CLEMENCY

9,115 ARE PENDING GOVERNMENT APPROVAL

89

100

MAY BE GRANTED IN DECEMBER

HAVE BEEN GRANTED

Note: The federal prison population as of Dec. 4 was 197,645.

Sources: Department of Justice, White House, Clemency Project 2014

THE WASHINGTON POST

‘Smart on Crime’ tour

The real planning for how to unwind the country’s war on drugs began the summer before Holder’s speech. He and Obama anticipated a successful second-term election. They were past the financial crisis and the president’s fight for health-care reform. Holder had survived a bruising battle with Congress over the release of internal Justice documents in the aftermath of a botched gun operation.

“Let’s go big,” Holder recalls Obama saying that August, again on the Vineyard. “It’s gutsy. It’s risky. But it’s something we ought to do.”

A few months later, in January 2013, Holder directed his senior Justice officials to break into groups and bring him recommendations. Holder and Obama were concerned about the backlash. Could they pull off this huge reversal of drug policy and sentencing? Would they be accused by Republicans of being soft on crime?

The pushback did come — but it was from within Holder’s own department. In U.S. attorneys’ offices around the country, some prosecutors were supportive of the new policy, but others grumbled that Holder was taking away their most effective tool to get cooperation from drug offenders. The organization representing line prosecutors wrote a letter to Holder and then went over his head and sent letters to top congressional leaders, urging them not to change the sentencing rules.

James M. Cole, Holder's deputy attorney general, traveled to U.S. attorneys' offices and tried to persuade prosecutors to support the huge reversal of drug policy and sentencing. He was also responsible for recommending to the White House inmates for clemency. (Nikki Kahn/The Washington Post)

During the fall of 2013, the responsibility to calm the troops mostly fell to Holder’s deputy attorney general, James M. Cole. He had visited federal prisons, seen the chaos and overcrowding firsthand and learned that one-third of the Justice Department’s $27 billion budget going toward prisons was taking away money from the FBI and other law enforcement operations.

As he and Holder rolled out their policy changes, Cole traveled to U.S. attorneys’ offices to meet with rooms of federal agents and prosecutors.

“I still have the scars to show from my ‘Smart on Crime’ tour,” Cole said recently.

When prosecutors demanded to know how they would make their cases now, Cole said he told them, “You see how much gray hair I have here? I was prosecuting cases before there were sentencing guidelines.”

“You know how I dealt with sentencing? I advocated. I went into the court and I built my case on why I thought that person ought to get a higher sentence,” he said. “You advocate. You’re all good lawyers. You’re all good advocates. You go back to that.”

Video: Eric Holder visits childhood home, reflects on early lessons about drugs and justice

Play Video

Criminal justice reform is more than theoretical for former attorney general Eric H. Holder Jr. — it’s personal, as well. Holder returns back to his old neighborhood in East Elmhurst, Queens, to reflect on his childhood friends who got caught in the cycle of drugs and the criminal system. (Alice Li)

‘I look at you all and I see myself’

While Cole was trying to persuade prosecutors, Holder took to the road to highlight successful substance-abuse treatment programs in Philadelphia, St. Louis and Peoria, Ill., as an alternative to prison.

At each stop that fall, Holder drew from his years as a D.C. Superior Court judge at the height of the crack-cocaine epidemic in the late 1980s and early 1990s, when the city was labeled the “murder capital” and his courtroom was filled with drug offenders.

“For five years, I saw this ocean of young black men come before me who should have been the future of Washington, D.C, and I sent them to jail,” Holder said later. “It was one of the reasons why I ultimately left the bench. The system was pushing me to put people in jail for longer periods of time than I thought were appropriate.”

He also witnessed how city residents were pushing back against a system they perceived as unfair. Trials where Holder believed the government had proven its cases beyond a reasonable doubt would instead end in hung juries. When he asked the juries afterward what happened, “they would say, ‘I voted not guilty because I’m not going to send another black guy to jail,’ for what they considered an inappropriately long period of time.”

Holder’s push for drug treatment rather than incarceration was also personal.

As he spoke to young men and women in the drug diversion programs, he revealed that he had a nephew who had also struggled with drug addiction and had been in and out of jail. He mentioned close childhood friends from his lower-middle-class neighborhood of East Elmhurst, Queens, who battled with heroin and cocaine addiction.

“I look at you all and I see myself,” he told them. “I grew up in a neighborhood in New York City where people like you would have been my friends. We would have gone to school together. We would have tried to learn about girls together. We would have played basketball together. So, I can’t help but feel mindful of the fact that, although I’m here in my capacity as attorney general of the United States, a few of the people I grew up with, good people like you, ended up taking different paths.”

Those different paths haunt Holder. To this day, when he talks about “my boys” and how their lives were destroyed by drug addiction, his voice cracks.

“I wasn’t just looking at statistics as attorney general,” Holder said. “For me, this is real, being Ricky Holder from 24th Avenue and 101st Street.”


Holder visits his childhood home, now owned by another family, in the lower-middle-class neighborhood of East Elmhurst, Queens. | Holder looks around his old bedroom. Some of his close childhood friends battled with heroin and cocaine addiction. | Holder plays a game of basketball with his son near his home in Northwest Washington.

Logistical nightmare

Every Saturday that fall, Cole carried home piles of documents. It was the one day when he could sit and think without being distracted. As the deputy attorney general, Cole — not Holder — was in charge of recommending which federal prisoners deserved presidential clemency. As Cole sifted through the petitions at the kitchen table in his Northwest Washington home, a pattern emerged.

“There were the traditional, what I called Mother Teresa ones — ‘I’m a really wonderful person. I’m totally rehabilitated. I’m ministering to people who really need it in prison,’ ” Cole said. But there was another much bigger group, the one Cole called “The Guys Who Got Screwed.” They were the drug offenders who “got sentenced way beyond what they would be sentenced today.”

The clemency process

1

Lawyers look through old legal documents, decide which inmates to recommend for clemency and write petitions. Drug offenders must have served at least 10 years, had no significant criminal history and would likely have received a lower sentence if convicted today.

2

The U.S. pardon attorney reviews the petitions and makes recommendations to the deputy attorney general.

3

The deputy attorney general conducts an additional review and sends her recommendations to the White House counsel.

4

White House lawyers review the petitions and decide which ones are sent to the president for signing.

5

President Obama grants clemency, which releases the inmates from prison.

Sources: Department of Justice, White House, Clemency Project 2014

THE WASHINGTON POST

Many of the latter had been sentenced under laws passed by Congress after University of Maryland basketball star Len Bias died of a cocaine overdose in 1986.

Both Republican and Democratic legislators, including late senator Ted Kennedy (D-Mass.) and former senator Joe Biden (D-Del.), wanted to protect minority neighborhoods exploding in violence tied to crack. Under the leadership of Rep. Charles B. Rangel (D-N.Y.), many members of the Congressional Black Caucus had also voted for some of the most harsh sentencing legislation.

In the first eight names Cole recommended, he included three first-time nonviolent offenders who were serving life sentences. “I wanted to pick some that made your eyes pop out to make the point,” he said. On Dec. 19, 2013, Obama granted clemency to the eight, each of whom had spent more than 15 years in prison.

But Cole knew it was just a drop in the bucket; there were so many more who deserved presidential mercy. He also knew his department didn’t have the resources or the number of attorneys to find them.

So in January 2014, he went before the New York State Bar Association with an un­or­tho­dox idea: He asked lawyers around the country to help him find deserving inmates for clemency and prepare their petitions.

In response to Cole’s plea, four groups — Families Against Mandatory Minimums, the American Civil Liberties Union, the American Bar Association and the National Association of Criminal Defense Lawyers — came together to create Clemency Project 2014.

The umbrella group of pro bono lawyers wasn’t prepared for what happened next. More than 33,000 prisoners — about 15 percent of the federal prison population — applied for clemency.

“It turned into a logistical nightmare,” Cole said.

To write the petitions, the hundreds of lawyers involved had to locate old legal documents, contact prosecutors and judges who imposed the sentences and try to get pre-sentencing reports and sentencing transcripts, some of which had not been transcribed.

It took nearly an entire year for Clemency Project 2014 to start recommending inmates for clemency.

From there, the process became even more cumbersome. The files had to be physically transferred to four federal buildings: First to the U.S. Pardon Attorney Deborah Leff, who oversees pardons and clemencies. Lawyers in her D.C. office on New York Avenue NW reviewed the petitions. Next they went to the deputy attorney general, now Sally Quillian Yates, for an additional review.

The deputy attorney general then sent the petitions with recommendations to the White House counsel in the Eisenhower Executive Office Building. Then more lawyers conducted another review to decide which ones go on to Obama to sign.

in July, Obama became the first sitting president to visit a federal prison when he traveled to El Reno Federal Correctional Institution in Oklahoma. The day before his visit, Obama gave his first major criminal justice speech to a crowd of more than 3,000 at the NAACP convention in Philadelphia. (Saul Loeb/Agence France-Presse via Getty Images)

The criteria for figuring out whether to recommend clemency requests to Obama: Inmates had to have served at least 10 years, have no significant criminal history and have no connection to gangs, cartels or organized crime. They would also have to likely receive a substantially lower sentence if convicted of the same offense today, and they must have demonstrated good conduct in prison.

With the process taking longer than many had anticipated, everyone began pointing fingers. Justice officials complained they didn’t have enough attorneys to sort through the more than 9,000 petitions that are pending — and that the Clemency Project wasn’t getting them eligible candidates fast enough. Sometimes five different lawyers reviewed a petition before sending it on. Project attorneys said they were trying to be extremely careful in who they recommended and that their process is getting better.

“There’s no question that the president is frustrated with the numbers of people who have been sent to him,” Holder said recently.

The White House declined requests to interview the president about criminal justice reform.

Heather Childs, the chief of staff to Yates, said that the Justice Department is processing the applications “as thoroughly and expeditiously as we can.”

“To do that, we’re prioritizing the good applications, those that we think have a good shot and are meritorious,” she said. “We’re really focusing on those and sending them to the White House as they’re done.”

Childs said Justice lawyers have looked at all the prisoner petitions that have come in and are focusing on the ones they think have the “biggest injustice” and would not pose a public safety risk.

While the administration’s process was taking longer than expected, the independent U.S. Sentencing Commission ended up taking the most dramatic action of all to reduce the prison population.

The seven-member bipartisan commission made a change in the federal sentencing guidelines that retroactively made more than 40,000 drug offenders eligible for an average two-year reduction if a judge, in each case, found that they were not a public safety risk. Holder had supported the action, but again faced internal dissent. Many of his U.S. attorneys opposed the idea of reducing the sentences in their drug trafficking cases.

On Oct. 28, more than 6,000 inmates across the country began walking out of prisons and halfway houses in the first wave of early releases, the biggest ever to occur at one time. Another 8,550 inmates are expected to be released early by next November.

Holder reads a note on his desk as he arrives for his last day as attorney general in April. (Nikki Kahn/The Washington Post)

A weekly call

Holder and Cole both have left the Justice Department and returned to private practice. In their absence, Obama has spoken out more about criminal justice reform in recent months.

In July, Obama gave his first major criminal justice speech to a crowd of more than 3,000 at the NAACP convention in Philadelphia, saying “mass incarceration makes our entire country worse off, and we need to do something about it.” The next day he became the first sitting president to visit a federal prison by traveling to El Reno Federal Correctional Institution in Oklahoma.

But thousands of inmates with harsh sentences tied to the war on drugs, some with life without parole, are still waiting for relief in cramped prison cells. Their only hope is Obama’s unique clemency power. And time is running out.

Every Friday, Mark Osler, a law professor at the University of St. Thomas in Minnesota and an advocate for inmates petitioning for clemency, takes a phone call in his office from an inmate in a Texas prison.

The caller is Ronald Blount, 52, a former crack addict who was convicted of conspiracy to sell crack cocaine and given a life sentence in federal prison. He’s been there for 16 years.

“Every Friday morning, Ronald Blount calls me on the phone and I have to tell him nothing has happened,” Osler said. “It breaks my heart. I have to tell him, not only that he has gone another week, but that everyone has. That the entire system has failed for another week.”

“Something about that call gives me an urgency that I wish the president felt,” Osler said. “I wish he would take a call from a prisoner every Friday and then decide if it’s worth putting this off for another week, another month, another year.”

Holder says he thinks “people just need to be patient.”

“He has talked about these issues in ways that no other president ever has,” Holder said. “He wants to use the power of his office and his persuasive abilities to get Congress to pass legislation that would put into law the changes that we have made.”

“I think the test will ultimately be, where do we stand at the end of the president’s term opposed to where do we stand now? He still has months to go.”

UNWINDING THE DRUG WAR:
This story is the eighth in a continuing series about the legacy of the war on drugs and efforts to reduce the nation’s prison population.
Click to read Part I: The painful price of aging in prison

Click to read Part II: Against his better judgment

Click to read Part III: From a first arrest to a life sentence

Click to read Part IV: Unlikely allies push for sentencing reform

Click to read Part V: Out of prison, slow steps to freedom

Click to read Part VI: In Calif., A ‘virtual get-out-of-jail-free card’

Click to read Part VII: Softening sentences, losing leverage

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