DOJ Announces Broadened Clemency Criteria for Drug Offenders

On Monday, the Justice Department announced it would soon be implementing new and broader criteria for drug offenders seeking clemency.

Today, the Justice Department announced the new criteria. It is a welcome sea change:

The Justice Department is encouraging nonviolent federal inmates who have behaved in prison, have no significant criminal history and have already served more than 10 years behind bars to apply for clemency, officials announced Wednesday.

The new criteria:

  • They are currently serving a federal sentence in prison and, by operation of law, likely would have received a substantially lower sentence if convicted of the same offense(s) today;
  • They are non-violent, low-level offenders without significant ties to large scale criminal organizations, gangs or cartels;
  • They have served at least 10 years of their prison sentence;
  • They do not have a significant criminal history;
  • They have demonstrated good conduct in prison; and
  • They have no history of violence prior to or during their current term of imprisonment.

Thank you Obama Administration. This is what change looks like. [More...]

To identify the clemency-eligible inmates and process their applications:

To facilitate the thorough and rapid review of the new clemency applications this initiative will likely spur, Deputy Attorney General Cole announced that he issued a department-wide call for attorneys willing to help review new petitions. These attorneys will help assess the petitions to determine which fall within the six stringent standards and merit further consideration. Department lawyers will be temporarily assigned to the Pardon Attorney’s Office.

The Bureau of Prisons (BOP) will notify inmates in the coming days about this initiative and the availability of pro bono lawyers from the newly formed Clemency Project 2014.

Defense lawyers are also mobilizing. The National Association of Criminal Defense Lawyers, in conjunction with other groups, has launched Clemency Project 14 and is seeking volunteers.

Executive Director Norman Reiner writes:

"The nation's criminal defense bar has a long tradition of rising to whatever challenges the legal system inflicts upon the accused. Now we have the challenge - and the hope - of restoring freedom to the condemned. I call upon NACDL members to consider volunteering to participate in this important and historic project."

"This project is an historic opportunity to begin the process of remedying decades of cruel and unnecessarily harsh sentencing practices. Even when implemented, this corrective process is partial and insufficient. In the long term, meaningful reform will require legislative action and an entirely new approach to non-violent offenders. That is the only path toward ending this country's infatuation with mass incarceration. But, for many this program offers genuine hope and the prospect of an early return to freedom," Reimer also wrote.

DOJ also announced a change in leadership at the Pardon Attorney's Office. As rumored, Pardon Attorney Ronald Rodgers is out and will be moved to another position:

Deputy Attorney General Cole also announced Deborah Leff, Acting Senior Counselor for Access to Justice, as the new head of the Office of the Pardon Attorney. Ronald Rodgers, who previously held the position, will assist Leff during a transition period and will then take on another role at the department to be announced at a later date.

This clemency initiative is the most welcome change for drug offenders I have seen since Congress passed the Anti-Drug Abuse Act of 1986 which created mandatory minimum sentences for drug offenses, and the federal sentencing guidelines went into effect in 1987. President Obama deserves a lot of praise for this action.

Update: For those thinking there are few offenders serving more than 10 years for non-violent drug offenses or this is no big deal, see my comment here. Also, Obama is not to blame for Congress' refusal to reduce or eliminate mandatory minimums or for draconian sentences imposed by judges long before he became President. What his new policy does is create an opportunity to vitiate many of those previously imposed sentences through executive clemency. It's what many called for when he commuted the sentences of 8 crack offenders last December.

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    One wonders (5.00 / 1) (#1)
    by Abdul Abulbul Amir on Wed Apr 23, 2014 at 02:13:45 PM EST

    How many fit the criteria?  Were the feds really locking up low level non-violent users for 10+ years with any frequency?

    I would certainly... (5.00 / 3) (#2)
    by kdog on Wed Apr 23, 2014 at 02:18:52 PM EST
    prefer much looser criteria, this will limit many a worthy case, sometimes trouble finds an inmate in prison through no fault of the inmate is but one glaring example.

    But at least we're moving in the right direction.  Step 1 of recovery is acknowledging you have an addiction, and I think the president is acknowledging we have a societal prison addiction.


    "Step 1 of recovery..." (5.00 / 1) (#7)
    by Mr Natural on Wed Apr 23, 2014 at 09:30:08 PM EST
    Well played.

    yes the feds lock up non-violent offenders for (5.00 / 3) (#4)
    by Jeralyn on Wed Apr 23, 2014 at 04:17:32 PM EST
    more than 10 years. A lot of them. Some are doing life.

    Some have served 20 years or more by now. This gives them a chance to get out.

    This is a much bigger deal than the Sentencing Commission's recent change reducing the guidelines for drug offenses by two levels. Those changes don't affect mandatory minimums which trump the guidelines.

    The guidelines were mandatory until Booker in 2005.  Thus, there have been options available to judges to avoid unjust sentences for those sentenced for large quantities in the last 9 years that were not available to judges who sentenced defendants 10 years ago or longer. Only since 2005, could the judge, in his or her discretion, give an offender 10 years (the mandatory minimum) instead of 30 years if that's what the guidelines called for and the defendant didn't qualify for the safety valve. It's those who were sentenced before Booker that need the most help. Their sentencing judges had no option but to impose the high guideline sentence.

    Even under the current reduced crack guidelines, those with offenses involving large quantities (more than 8.4 KG  of Cocaine Base at level 38) who do not qualify for the safety valve (because they had a managerial role or they had a few misdemeanors or a felony conviction or refused to confess their involvement) have guideline ranges of 20 to 30 years.  Those whose offense involves between 2.8 KG and 8.4 KG of Cocaine Base, level 36,  still have guidelines in the 15 plus year range.

    This is the first time there has been relief on the horizon for those whose offenses involved large quantities, who may have had supervisory roles or a few minor or non-violent priors on their record, who chose not to cooperate or who didn't qualify for the safety valve.

    There will be thousands of petitions filed by these offenders.

    The main restrictions are no violence in the drug offense the person was convicted of, no significant gang or cartel ties and no violent acts while in prison. There is no mention of having to admit the sentence was correct and expressing remorse.

    Some relief has been available to low level offenders for a while. It's the bigger offenders that this will help, especially those sentenced more than 10 years ago who are still in prison. Without this, many would either not be freed until they are old or would die in prison.


    No doubt those persons exist (5.00 / 1) (#8)
    by Abdul Abulbul Amir on Thu Apr 24, 2014 at 09:32:10 AM EST

    But how many?  This may be a "feel good" announcement that benefits very few real people.

    From CNN (5.00 / 1) (#9)
    by jbindc on Thu Apr 24, 2014 at 12:20:38 PM EST
    Of the more than 200,000 inmates in the federal prison system, some estimates show the new clemency criteria could apply to about 2,000 prisoners. But the number is likely to fall to perhaps hundreds after government lawyers review the applications.



    10 years is bullsh*t (5.00 / 1) (#3)
    by Dadler on Wed Apr 23, 2014 at 02:57:29 PM EST
    A drop in the bucket and inexcusably narrow. I will be happy for those are pardoned, and I will say phuck Obama for the rest of this usual cowardice. Can we please have some BOLD thinking in this nation politically? Oh wait, that's right, we're an oligarchy. Pardon me. Carry on...

    And now Rolling Stone and Ed on MSNBC (5.00 / 1) (#5)
    by magster on Wed Apr 23, 2014 at 05:34:23 PM EST
    are reporting that Obama is going to reject Keystone XL.

    This is why we "hold our nose" for Dems that aren't as progressive as we'd maybe like.

    These kinds of things don't happen with a Republican elected into office because of a protest vote or sitting at home.

    ok but please keep this thread (none / 0) (#6)
    by Jeralyn on Wed Apr 23, 2014 at 06:06:41 PM EST
    on the new clemency criteria.

    If (none / 0) (#10)
    by lentinel on Fri Apr 25, 2014 at 05:23:00 AM EST
    this is what "change" looks like... include me out when it comes to genuflecting in Obama's direction.

    Clemency would be meaningful - to some degree.
    Clemency with an apology and a substantial sum of money so that these poor souls could reestablish their lives after 10 years in the can for a non-violent crime would be even more meaningful.

    When I think of those white-collar crooks at GM, literally getting away with murder - and the government agencies that looked the other way -- my blood boils.

    And - my first reaction to this was to think of the requirement that the prisoners have to have been "well-behaved" in prison.

    How many people, subjected to the daily prospect of rape as well as deprivation of liberty for TEN YEARS or more, could remain "well-behaved"?

    I would go nuts.

    "a substantial sum of money ?" (5.00 / 1) (#11)
    by NYShooter on Fri Apr 25, 2014 at 01:15:38 PM EST
    maybe something like the 20 million each that was awarded the rich boys from the Duke rape fiasco?

    Not passing judgment in that case, but, a little proportionality would be a rare happening. Poor, minority accused prisoners, some spending decades on death row before being proved innocent, are given a kick in the butt, and, what amounts to bus fare when they're finally released.


    Proportionality? (none / 0) (#12)
    by squeaky on Fri Apr 25, 2014 at 01:24:47 PM EST
    The Duke Plaintifs were acquitted. Those who well deserve clemency, regarding Obama's recent initiative, were convicted.

    Your analogy is a really bad one, imo.


    Actually (none / 0) (#14)
    by jbindc on Fri Apr 25, 2014 at 04:34:55 PM EST
    The charges were dropped by the State Attorney General - they were not acquitted.

    OK (none / 0) (#15)
    by squeaky on Fri Apr 25, 2014 at 04:55:38 PM EST
    I will rephrase:

    The charges were dropped by th State Attorney General in the Duke Case because the rape victim was found to be lying about getting raped. Those who well deserve clemency, regarding Obama's recent initiative, were convicted.

    Your analogy is a really bad one, imo.


    What analogy? (none / 0) (#16)
    by jbindc on Mon Apr 28, 2014 at 09:04:33 AM EST
    I corrected a statement you made.  That's not an analogy.

    Analogy (none / 0) (#17)
    by squeaky on Mon Apr 28, 2014 at 09:08:36 AM EST
    Duke Lacrosse players who were accused of rape and had the charges dropped compared to convicted criminals who are being considered for clemency.

    I rephrased my comment to nyshooter to reflect your correction.


    Yeah that annoyed me, too (5.00 / 1) (#13)
    by sj on Fri Apr 25, 2014 at 02:46:08 PM EST
    And - my first reaction to this was to think of the requirement that the prisoners have to have been "well-behaved" in prison.