WASHINGTON â€” A Justice Department push to shorten long drug sentences through President Obama’s clemency powers has gotten off to a slow start: Obama has commuted the sentences of just two of the tens of thousands of federal inmates who have applied through the program.
Lawyers involved in the effort say the year-old clemency initiative has been hampered by the complexity of the cases and questions about the eligibility criteria, which may still be too strict to help most of the prison population.
The result is a system that appears even more backlogged than it was before the initiative began.
“The criteria basically suggest that a whole bunch of good citizens who committed one little mistake got significantly more than 10 years in prison, and fortunately that’s pretty rare,” said Johanna Markind, a former attorney-adviser in the Office of Pardon Attorney who left in March.
“I think they’ve kind of belatedly realized that people are doing their jobs, and those perfect cases they think are there don’t really exist,” she said. “For all the sound and fury about the commutations, the clemency initiative has only come up with a handful of cases that fit” the criteria.
The clemency initiative was intended to help federal inmates who would have received shorter prison terms had they been sentenced today. That applies mostly to drug offenders after Congress shortened sentences for crack cocaine in 2010. To be eligible, inmates must have already served 10 years of their sentence.
Last year, a record 6,561 federal prisoners â€” three times the usual number â€” filed petitions with the Justice Department’s Office of Pardon Attorney, which advises the president on all requests for clemency. Under the constitution, the president has the absolute power to grant pardons and commute sentences.
More than 30,000 federal inmates applied for representation through the Clemency Project 2014, a consortium of lawyers who have volunteered to help eligible inmates through the often complicated and time-consuming process of seeking a commutation.
But 13 months later, those lawyers have submitted just 31 petitions. And while Obama has used his pardon power to shorten the sentences of 43, most of those cases predate the clemency initiative. Over six years, Obama has granted just 0.2% of the commutation petitions submitted.
The Justice Department says it expects to recommend more commutations to Obama as it reviews the petitions. But that could take a while: In its 2016 budget request to Congress, the department said the deluge of clemency applications is too much for the current staff to manage.
“As OPA’s existing staff has discovered, expending the substantial resources required simply to manage such a volume of clemency requests significantly decreases those available for analyzing and evaluating the merits of individual applications and preparing the appropriate letters of advice to inform the president,” the Justice Department said in its congressional budget justification
Obama has proposed a 66% budget increase for the Office of Pardon Attorney in 2016, and is seeking twice as many lawyers to process all the paperwork.
And that paperwork can be daunting, requiring an examination of trial transcripts, the pre-sentence report (which is often sealed) and Bureau of Prisons files.
To be eligible under the program, inmates must be low-level offenders with no ties to gangs or cartels. They must have demonstrated good conduct in prison, have no significant criminal history and no history of violence.
“There are gray areas, What is ‘demonstrated good conduct in prison,’ for example? Is that a pristine record?” said Cynthia Roseberry, a career public defender who now manages the Clemency Project 2014.
Without knowing how the Obama administration will apply those vague criteria, it’s impossible to know how many could be eligible. “My hope is that thousands of those will meet the criteria, but I just can’t speculate.” Roseberry said. She said she expects the numbers to increase as the Clemency Project continues to screen for likely candidates for commutation.
A Clemency Project screening committee has already notified more than 3,000 inmates it won’t be accepting their cases. Once a case is accepted, it’s parceled out to a volunteer attorney such as Mary . Davis.
Davis represents Byron McDade, a Washington man sentenced to 27 years for cocaine trafficking even as his co-conspirators â€” who testified against him â€” got no more than seven. In 2009, after McDade had served his first seven years, the judge who sentenced him urged Obama to commute his sentence.
“While the Court is powerless to reduce the sentence it was required by then-existing law to impose, the president is not,” U.S. District Judge Paul Friedman wrote in another opinion last year
So Davis assembled a 168-page petition with the help of two West Virginia University law students â€” Laura Hoffman and Amanda Camplesi â€” who spent a combined 122 hours on the case, collecting paperwork and visiting McDade at a federal prison in Pennsylvania. Davis said the work was complicated, even as a veteran federal defense attorney specializing in sentencing appeals.
“I know there were attorneys signing up for this who don’t do criminal defense work, and I would think it would be extremely difficult,” she said.
McDade is an unusual case: Before being convicted in 2002, his only offense was a minor misdemeanor with a $10 fine.
Markind, who worked on commutation cases as a Justice Department lawyer, said the clemency initiative did not relax Obama’s “three strikes” policy making anyone with three or more criminal convictions ineligible for clemency. “Criminals with a record do not make the most appealing poster children,” she said.
Another problem, she said, is that the Obama administration is trying to solve a problem already addressed by Congress and the courts.
Last year, the U.S. Sentencing Commission changed the guidelines for how drug sentences are calculated, and made those changes retroactive. The commission says 46,376 inmates are eligible to have their sentences shortened
“So yeah, there is the direct access to courts that is actively reducing sentences for a lot of people,” said Mark Osler, a law professor at the University of St. Thomas in Minneapolis and a former prosecutor. “For many, those reductions are close to what they would get with clemency, and so it’s a logical choice that they would go that route.”
Even those reductions won’t help people serving mandatory minimum sentences, he said, so clemency is still a valuable tool to remedy disproportionately long sentences.
The Justice Department says clemency alone will not solve those problems. “The clemency process is just one prong in the department’s efforts on sentencing changes. The department has successfully urged the Sentencing Commission to make changes and continues to push for legislation in Congress as well,” spokeswoman Dena Iverson said.
Osler said the clemency process is already too bureaucratic and too distant from the ultimate decision-maker: the president.
The Clemency Project hopes to cut through the process by helping to provide the Justice Department with better, more complete case files to review. But that solution has also led to criticism from Capitol Hill, where Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, says that the administration is outsourcing a government responsibility.
“We’ve failed the same way through different kinds of administrations, and the problem isn’t the administration, it’s the process,” Osler said. “The sad thing is, every president recently has gotten to the end of their term and said, ‘Hey, where are all the good clemency cases?’
“I sure hope that will change, but it’s going to be a furious last year as these things start to come in even greater numbers.”
Follow Gregory Korte on Twitter: @gregorykorte.