At a campaign stop over the summer, Donald Trump lambasted President Obama’s clemency initiative, a program designed to shorten the prison terms of federal inmates who got more time than they would have if they were being sentenced today. These are people sent away for decades, or even life, because of a three-strikes law, the crack/cocaine sentencing disparity or marijuana, a drug now legalized in eight states after this election. Naturally, Trump did not display a great grasp of the policy details.
“Some of these people are bad dudes,” the then-GOP contender declared. “And these are people who are out, they’re walking the streets.”
“Sleep tight, folks,” he warned.
The statement was classically Trumpian in its blend of deception and false alarm. Obama has unleashed not violent criminals onto America’s streets but people who’ve already spent more than a decade in prison for nonviolent crimes. The eligibility requirements are strict, arguably to the point of overcautiousness. In 2014, the Justice Department released its criteria for clemency: Prisoners had to be low-level nonviolent offenders without links to gangs or cartels; prove they didn’t have a history of violence; have served at least a decade of their sentence; and “demonstrated good conduct” while incarcerated, which is not all that easy to do in America’s violent prisons.
Also, a fair number weren’t “dudes.” It’s not uncommon for girlfriends or wives to get ensnared in prosecutions targeting the men in their lives. So a fair share of women have had their sentences commuted thanks to the clemency initiative.
Sixty-five-year-old Nancy Ferneau thought she’d be one of them, but her petition for clemency was denied by the Justice Department’s pardon office — they told her to reapply next year, but now she doesn’t have the same high hopes.
“I don’t have a message for Trump, he wants to lock us all up and throw away the key,” Ferneau wrote me. “I don’t think any of us have a chance now, unless Obama does something real good for us before he gets out.”
In 2003 Ferneau was charged with conspiracy to sell meth, after some men that she’d known were busted for running a meth operation. She claims that she never sold drugs and that when she found out what they were up to, she cut off ties with them. She didn’t think she’d done anything wrong, so she turned down an eight-year plea deal and went to trial. She lost and got 25 years. (I’ve written about her case before at AlterNet.)
“I just think it is so wrong that someone like me who is nonviolent has to do more time than people that murder people and baby rapists, stuff like that,” she said. “[It] makes me mad at our system.”
Of course Ferneau is angry. Many things seem to be up in the air with President-elect Trump, but his “law and order” rhetoric and his nominee for attorney general, Sen. Jeff Sessions (R-Ala.), signal that a Trump Justice Department will not be in a rush to release people.
Mary Price, general counsel of Families Against Mandatory Minimums, is taking a wary, wait-and-see approach. “I really don’t know enough yet. A lot of people were taken aback [by Trump]. We’ll see. Those potential attorneys general may take a very different view of things [than the current Justice Department].”
Of course, prisoner advocates weren’t exactly banking on Hillary Clinton, either. “We didn’t expect either candidate to continue at the pace President Obama set, which was unprecedented,” Price said.
“There’s not a lot that’s changed,” said Cynthia Roseberry, project manager for Clemency Project 2014, a consortium of law groups that connects prisoners eligible for clemency with attorneys. “We’ve been working expeditiously for some time.”
Advocates have been well aware that the Justice Department’s clemency program is guaranteed only until January. And for the people who miss their opportunity? “We remain hopeful about them,” Roseberry said. She lists a few possibilities: Congress could pass sentencing reforms that are applied retroactively, or the Federal Bureau of Prisons could hand down early release. There are channels for prisoners with medical issues to be freed earlier, but “those are rarely used,” she noted.
At any rate, drug offenders’ options look pretty stark given the turn in national politics, so the clemency project lawyers are rushing to put as many prisoner petitions as they can in front of the Office of the Pardon Attorney in the hopes that they’ll reach President Obama’s desk before he leaves office.
“This initiative has brought hope to a lot of people who spent far too long in prison and who I believe are ready to re-enter society,” Roseberry said. “It would be great if we could capture the others who didn’t make this program but are just as worthy of coming home.”