The Obama administration announced the details Wednesday of a new executive program that could shorten the sentences of long-serving drug offenders behind bars. The program comes after six years of Obama’s exceedingly stingy use of his executive power to shorten these sentences, encompassed in the constitutional “pardon power.”
Now, the Justice Department is overhauling the office that reviews clemency applications, and has developed a systematic process for all inmates who have served at least ten years of their sentence and believe they meet six new criteria for clemency. There are some 23,000 inmates who have served more than ten years for a non-violent crime, according to the Justice Department. Another estimate cited by CNN put the number of those who likely meet all six criteria at 2,000, and that number may likely get pared down hundreds once inmates are reviewed by the DOJ’s Pardon Attorney.
This is a small fraction of the some 200,000 inmates in federal prisons, and it won’t account for any of those individuals sentenced to five or ten-year minimums for minor crimes. But it should take on some of the longest, and would be an astronomical increase over the number of commutations Obama has granted thus far throughout his entire presidency: ten. In fact, it would likely shift Obama’s record from one of scarce presidential mercy, to the greatest use of the pardon power since President Gerald Ford used it to release many Vietnam draft-dodgers, according to Yahoo News.
The most prominent effect of the new program will be to lower some of the most unjust disparities that existed before the Fair Sentencing Act was passed in 2010. That act reduced a disparity between sentences for offenses involving crack-cocaine, typically associated with African Americans; and powder cocaine, typically associated with whites; from 100-to-1 to 18-to-1. However, the act has not been ruled retroactive, so many who were sentenced to mandatory minimum sentences under the old regime are still serving lengthy terms behind bars.
But the program is not limited to those affected by this disparity. It would be open to those who have already served ten years in prison for a low-level, non-violent offense, and targeted at those whose sentences would have been shorter if they were sentenced today, who have had no violence or gang affiliation in their past or during their prison stay, who have limited criminal histories, and who have behaved well in prison.
All federal inmates are invited to fill out a survey. And if they are deemed eligible, every one will be assigned a pro bono lawyer through a volunteer lawyers project that will assist them in applying for a commutation, the mechanism that allows President Obama to cut short federal prison sentences.
Much of the blame for Obama’s scant pardon record has been placed on the office of the Pardon Attorney, which reviews applications. During the Obama administration, it reviewed some 10,000 commutation requests and rejected all but ten. An investigation by the Justice Department’s Inspector General of the rejection of one particularly sympathetic applicant whose story had been publicized by ProPublica found that the Pardon Attorney mishandled the application. That attorney, Ron Rodgers, will now step down as head of that office and be reassigned elsewhere. In presenting this initiative to several U.S. Attorneys visiting Washington, Obama reportedly said that he now expects his office to review all applications through that office, rather than “reflexively” deny them.
Families Against Mandatory Minimums General Counsel Mary Price described the office as having a “culture of ‘no’,” and is optimistic and these new announcements can transform that culture. “The doors of the Office of the Pardon Attorney have been closed to petitioners for too long,” she said.
But pardons have not just been scarce; they have also been racially disparate for the past several presidencies. ProPublica found whites were four times as likely as blacks to be granted a presidential pardon. And a new ProPublica column suggests disparity could still persist so long as subjective factors “such as attitude, level of remorse, and financial stability” are key to the assessment.
This program is therefore a precursor to more comprehensive reform through several bipartisan sentencing bills now pending in Congress — one of several stop-gap Obama administration initiatives under its “Smart on Crime” program.