An Obama administration initiative to encourage nonviolent drug offenders in federal prison to seek clemency is likely to trigger tens of thousands of petitions, and the government could be processing applications for the next three years, according to lawyers and civil rights activists.
Deputy Attorney General James M. Cole on Wednesday laid out the six criteria that Justice Department lawyers will consider when they review clemency requests from some of the country’s 219,000 federal inmates. The initiative is part of an effort to reduce the prison population and end disparities in drug sentencing that, for instance, led those trafficking in crack cocaine to receive much longer sentences than people dealing the same substance in powder form.
“For our criminal justice system to be effective, it needs to not only be fair but it also must be perceived as being fair,” Cole said. “Older, stringent punishments that are out of line with sentences imposed under today’s laws erode people’s confidence in our criminal justice system.”
Offenders seeking clemency will have to have served at least 10 years of their sentence, have no significant criminal history, and no connection to gangs, cartels or organized crime. Applicants also must be inmates who probably would have received a “substantially lower sentence” if convicted of the same offense today. And to be eligible, they must have demonstrated good conduct in prison.
“We will get tens of thousands of applications,” said Julie Stewart, president of Families Against Mandatory Minimums. “This is a very complicated, many-layered project. It will go on until the end of the Obama administration.”
The Justice Department is planning to send surveys to all federal inmates by May 2 to start identifying applicants. Cole also sent a letter to the 93 U.S. attorneys asking for their help in selecting meritorious clemency candidates.
The Bureau of Prisons will send the completed surveys to Clemency Project 2014, an umbrella organization that will sift through the forms to find the ones that appear to meet the Justice Department’s criteria. The Clemency Project — composed of Stewart’s organization, the federal public defenders, the American Civil Liberties Union, the American Bar Association and the National Association of Criminal Defense Lawyers — is working to recruit and train lawyers how to screen inmates for eligibility.
Prisoners will be offered pro bono lawyers to help them prepare their clemency applications.
“Our federal sentencing laws have shattered families and wasted millions of dollars,” said Vanita Gupta, the ACLU’s deputy legal director. “Too many people, particularly people of color, have been locked up for far too long for nonviolent offenses. The president now has a momentous opportunity to correct these injustices in individual cases.”
For some of the activists, the issue is deeply personal. Stewart’s brother, Jeff, was sent to federal prison for a mandatory five years for growing marijuana.
He had cultivated 365 six-inch marijuana plants in his garage in Washington state, where the drug is now legal. She thought what he did was “stupid” but assumed he would get off with a relatively light sentence because it was “only marijuana.”
“The judge said, ‘I don’t want to give you this much time but I have no choice because Congress has determined your sentence when they passed the mandatory sentencing laws for drug crimes,’ ” Stewart said. “That was the spark that ignited my mission. I always thought judges judge and determine the punishment that fits the crime. But the judge couldn’t do anything about my brother’s sentence.”
With the help of two lawyer friends, Stewart found others affected by the strict mandatory sentences, organized meetings for people nationwide to share their experiences and began working to change the laws through Families Against Mandatory Minimums, which she founded in 1991.
“When I started my group, sentencing reform was such a fringe issue,” she said. “Nobody knew anything about it and nobody cared. We’ve been working so hard for so many years to build bipartisan support. People are serving decades behind bars for nonviolent mistakes they made in their 20s.”
To handle the expected flood of applications, the Justice Department is detailing dozens of lawyers to the Pardon Attorney’s Office. Senior Justice Department lawyer Deborah Leff will be taking over as pardon attorney from Ronald L. Rodgers, who has headed the office since 2008.
“What the Obama administration has done today is breathe new life into this moribund office, which has done practically nothing for a long time,” Stewart said.
The Washington Post and ProPublica published a series of articles beginning in 2011 that showed significant racial disparities in the awarding of presidential pardons. One of the articles showed how Rodgers withheld key facts from the White House in the high-profile clemency case of Clarence Aaron, a first-time offender serving a triple life sentence for a minor role in a drug crime.
Rodgers engaged in “conduct that fell substantially short of the high standards expected of Department of Justice employees and the duty he owed the President of the United States,” said Justice Department Inspector General Michael Horowitz in a report requested by Congress.