Behind Obama's commutations: 'Clemency Project' off to a slow start

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·Senior National Affairs Reporter
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President Barack Obama in the Oval Office, March 31, 2015. (Photo: Susan Walsh/AP)

President Barack Obama commuted the sentences of 22 federal prisoners with one stroke Tuesday, more than in his first six years in office. For the first time, the grant included a handful of prisoners represented by Clemency Project 2014, the outside group of nonprofit advocates created last year to help dramatically increase the president’s use of his pardon power.

But despite Tuesday’s commutations, the Clemency Project has moved at a glacial pace. It’s been bogged down by the difficulty of training 1,500 pro-bono lawyers in the complicated art of petitioning for presidential mercy; and the group also lost some of its most experienced hands when the federal court system decided last summer that court–appointed defense lawyers have no authority to work on clemency cases. The initiative has also been dogged by criticism from Sen. Chuck Grassley (R-Iowa), who says it’s inappropriate for four nonprofit groups to help vet applicants for clemency, which is typically done solely by the pardon attorney’s office in the Department of Justice.

The group was set up last year in response to Obama’s desire to clear federal prisons of hundreds and perhaps thousands of federal prisoners who have served more than 10 years for a nonviolent crime that would be penalized less harshly under today’s laws (for example, someone sentenced for dealing crack cocaine under older laws that punished possession of crack 100 times more harshly than possession of powder cocaine). More than 35,000 prisoners applied. But Clemency Project 2014 has sent only 14 petitions to the Justice Department so far. That number hasn’t changed in the past month, even though the project’s leader, Cynthia Roseberry, says the group is working “at an increasing pace.”

Roseberry, a former federal defender, said she expects the group to file many more petitions in the next three to four months. The group’s 1,500 private lawyers are finally beginning to submit summaries of their clients’ cases to the Clemency Project’s review boards, which are accepting them at a rapid clip. (The lawyers, most of whom have little experience with clemency petitions, faced daunting delays in getting the records they need from their clients’ decades-old trials, Roseberry said.) Once the summaries are approved, the lawyers will put together full petitions — which can be hundreds of pages long — and send them to the Justice Department. The pardon attorney then decides which petitions to send to the White House with a favorable recommendation.

“That’s going to ultimately lead to what we think is an avalanche of petitions going over to the Office of the Pardon Attorney,” Roseberry said. “As a matter of fact, I hope the administration is prepared.”

Mark Osler, a St. Thomas University law professor who founded a law clinic on commutations, said Clemency Project 2014 got off to a slow start in part because the sentencing issues it faces are extremely complex and technical. Lawyers must figure out if their clients would have been sentenced differently today, based on a complicated patchwork of laws and regulations. “I think it’s just daunting,” Osler said. “They’re looking at a totally new process that requires a pretty comprehensive understanding of federal sentencing. It knocks people back on their heels at first.” Osler, who is helping train some of the Clemency Project’s lawyers, says he believes this will get better with time.

But time is of the essence if the president plans to pardon a significant number of offenders before the end of his term in 2017. On Tuesday, Obama sent letters to the inmates he freed — an unusual practice that suggests the issue is very personal to him — saying that he hoped they would remember to “make good choices.” “I believe in your ability to prove the doubters wrong,” he wrote. “So good luck, and godspeed.”

Obama told close advisers during his first term that he wanted to ramp up his use of the pardon power to help restore fairness to the criminal justice system. He felt that the presidential pardon power was too often reserved for well-connected rich people who wanted their names cleared of white collar crimes. As Yahoo News reported last year, the plan was to grant clemency to hundreds and perhaps even thousands of prisoners sentenced under an older regime of drug laws. Last year, the Justice Department replaced the former pardon attorney, who had denied nearly every petition that came across his desk, and established the Clemency Project to identify candidates for commutations.

In May, the Bureau of Prisons delivered an unprecedented clemency questionnaire to the system’s more than 200,000 federal prisoners, asking them if they would like to be represented by a pro-bono lawyer through Clemency Project 2014. The survey included a warning in capital letters that there’s “NO GUARANTEE” inmates’ petitions will be granted, and that commutations remain very rare. Despite this warning, more than 35,000 prisoners responded — that’s double the number of prisoners who applied for commutations in the past ten years combined. Many likely do not meet the Clemency Project’s criteria, which include having served more than 10 years for a nonviolent crime that would have been sentenced differently today.

Clemency Project 2014 serves as a buffer between these petitions and the Justice Department’s Office of the Pardon Attorney, which has a relatively small staff and was already wading through a backlog of a few thousand older petitions.

Roseberry, the Clemency Project leader, declined to release the names of the law firms that are helping to represent the clemency applicants pro bono, or to identify which inmates granted clemency Tuesday were represented by her organization.

One criticism of project brought by Grassley and others is that it compounds the secrecy and lack of transparency already shrouding the pardon process. Prisoners’ applications for clemency are being denied by a group of lawyers who are not accountable to the government or the public. But Roseberry points out that the prisoners who are not accepted by Clemency Project 2014 are free to submit their petitions directly to the Justice Department. The commutations on Tuesday prove the Justice Department is still very much open to petitions that do not come through the special group.

“I am thrilled at the [clemency grants] that we’ve been given, and we are absolutely expecting more based on the good work that all of our volunteer lawyers are doing on this massive project,” she said.

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