A Momentous Change for America’s Tortuous Drug Sentencing

The Justice Department wants lawyers to help non-violent drug offenders get clemency to leave jail. It’s a great idea to ease overcrowded prisons. Will bureaucrats screw it up?

The Justice Department Thursday rolled out a sensible new policy designed to help ease costly and dangerous overcrowding in the nation’s federal prisons. The feds want more commutation petitions to come their way, from every corner of the country, and are asking local bar associations to help recruit attorneys who can find clemency candidates now in prison who are most worthy of relief and least likely to cause trouble once they are released. The mission is designed to help mostly non-violent offenders—like the mother of Denver Broncos’ wide receiver Demaryius Thomas, for example.

This worthwhile initiative was unveiled by Deputy Attorney General James Cole in a speech in New York—and (not by coincidence, I suspect) on the same day that the Senate Judiciary Committee broadly endorsed the Smarter Sentencing Act, legislation that would cut in half mandatory minimum sentences for federal drug offenders and make it easier for some already convicted of crack cocaine offenses to get revised sentences that will permit them to leave prison earlier. Thursday, you could say, was one momentous day in America’s tortuous history of sentencing policy.

But the Justice Department’s plan—a rising tide lifts all boats, you could say—will only succeed the way it is designed to succeed if meaningful reform comes as well to the Office of the Pardon Attorney, which has been (to put it charitably) an unmitigated disaster in recent years. It was the OPA’s mishandling of the Clarence Aaron clemency case, you may recall, that received a critical review (PDF) by the Justice Department’s Inspector General. Attorney General Eric Holder announced in the wake of that scandal that “corrective measures have been put in place” but we don’t know what those measures are or how likely they are to work (PDF).

You don’t need to be a clemency expert to understand what is likely to happen here if the lawyers and bureaucrats at the OPA haven’t gotten their acts together. Once bar associations start bugging their lawyers to find new clemency applicants, once the Bureau of Prisons starts encouraging more petitions, those earnest (and in many cases legitimate) pleas for mercy are going to come flooding into the Justice Department. And unless the OPA has the additional resources necessary to handle the crush, and unless OPA guidelines are less restrictive than they have been in the recent past, the result is going to be a bottleneck of historic proportions. If this scenario unfolds, I’m afraid the biggest impact of this new plan will be to raise false hopes among clemency candidates and their families.

Here are some excerpts of Cole’s speech to the New York State Bar Association announcing the new plan. All of it sounds reasonable, even noble, in some respects:

We envision that attorneys will assist potential candidates in assembling effective and appropriate commutation petitions—ones which provide a focused presentation of the information the Department and the President need to consider—in order to meaningfully consider clemency for similarly situated petitioners.

You each can play a critical role in this process by providing a qualified petitioner—one who has a clean record in prison, does not present a threat to public safety, and who is facing a life or near-life sentence that is excessive under current law—with the opportunity to get a fresh start.

We anticipate that the petitioners potentially eligible for consideration would include: non-violent, low-level drug offenders who were not leaders of—nor had any significant ties to—large-scale organizations, gangs, or cartels. We would also look for petitions from first-time offenders or offenders without an extensive criminal history.

Going forward, the federal Bureau of Prisons will begin advising inmates of the opportunity to apply for sentence commutation. The Bureau of Prisons can also provide inmates with information about bar associations who are willing and able to help them with their petitions. But it is our hope that organizations like yours can help by recruiting interested and skilled lawyers and training them to assist qualified inmates with these petitions. This can be done in a number of ways, including providing guidance to your members—with direction from the Pardon Attorney’s office—regarding the clemency process and the standards for consideration for clemency petitions. A member of my staff, in the Office of the Deputy Attorney General, will serve as your primary contact.

I hate to be a downer here amid all the gushing headlines, but let’s keep in mind a few things as this story unfolds. First, the Office of the Deputy Attorney General appears to be getting more involved in this process—but it was also directly implicated in the Aaron investigation. Those folks will have to do much better now if this is to succeed. Second, the Bureau of Prisons has been notorious in its lack of enthusiasm for reforms like this—look at the compassionate release program before reforms there last summer. The Justice Department will have to keep a close eye on prison officials to ensure they actually are providing inmates with the information they need to apply for clemency. And, finally, as a general matter the new process will have to be far more transparent than the old pardons processes ever were.

If we are to fully evaluate what Cole’s words really mean, we need to know what reforms have come to the OPA since the Aaron scandal. We need to know whether and to what extent OPA guidelines have changed to make it easier for candidates to have their requests approved. We need to be assured that all those people now being asked to spend all that time and effort to help ease the federal prison crisis won’t be undertaking their effort in vain. Clemency use won’t expand, in other words, unless these new applicants are evaluated differently than old applicants were evaluated. Through a spokesman, the Justice Department tells me it has “commissioned an independent study to examine the processing of petitions and we look forward to its results, anticipated sometime this year.”