Somewhat lost in the run-up to Labor Day weekend and wall-to-wall media coverage of the Clinton and Trump campaigns, President Barack Obama commuted the sentences of 111 federal prisoners on August 30. This builds on what has quietly become one of Obama’s most significant end-of-term domestic policy initiatives. He has now commuted 673 sentences, more than the previous ten presidents combined.
Commutation (that is, a reduction in the severity of a criminal sentence) is a form of executive clemency. The Constitution expressly grants clemency powers, and presidents since George Washington have used these powers in a variety of different ways. In recent decades, though, there has been a certain whiff of disrepute surrounding clemency. Bill Clinton’s pardon of financier Marc Rich and George W. Bush’s commutation of the sentence of I. Lewis “Scooter” Libby, among other scandals, contributed to a perception that clemency was unfairly used to benefit wealthy, powerful defendants.
Despite these negative perceptions of clemency, the Obama Administration announced in 2014 that it would welcome commutation applications from certain nonviolent federal offenders. In particular, the initiative focuses on offenders who were convicted many years ago of crimes that would result in a shorter sentence today. Federal sentencing law has undergone several important changes in the past decade, especially in relation to the sentencing of crack cocaine offenses. Federal crack sentences were notoriously severe for many years, with greatly disproportionate effects on black defendants. As a result of the recent changes, thousands of federal prisoners are now serving terms that would be shorter if they were imposed for the same offenses today.
In comparison to the secretive, ad hoc decisionmaking of previous presidents, President Obama’s initiative represents an admirably transparent, principled approach to clemency.
The use of clearly articulated criteria lends greater legitimacy to the process. Moreover, the criteria should effectively screen out clemency applicants who pose an ongoing threat to public safety.
Although I have been pleased by the clemency initiative generally, the grants on August 30 had a special significance to me and a small group of recent Marquette graduates. As part of a broader effort by the bar to provide pro bono representation to clemency applicants, I established a clinic of sorts last year, giving four Marquette law students an opportunity to work with a dozen federal prisoners who seemed to meet Obama’s criteria. We established connections with these prisoners through Clemency Project 2014, a clearinghouse sponsored jointly by the American Bar Association, National Association of Criminal Defense Lawyers, American Civil Liberties Union, Families Against Mandatory Minimums, and the Federal Public and Community Defenders. About 4,000 lawyers nationally have contributed their time through CP2014 to assist with the screening of more than 30,000 potential clemency applicants and the filing of more than 1000 petitions for clients who appear to meet the criteria.
The students and I got to work in August 2015. We filed our first petition in February and our final petition in late April, shortly before the students graduated. Since then, we have been waiting to get the results. The August 30 announcement included our first two grants. I was pleased that the Office of the Pardon Attorney called me a couple hours before the official announcement, giving me the opportunity to share the good news with the clients. Needless to say, they were thrilled! As nonviolent crack offenders with strong records of good behavior over more than a decade in prison, both clearly fit the criteria, and I have no doubt that they will do well upon release. They have to complete some programming first, but they should be out in about a year.
One of the clients forwarded to me a copy of the form letter he received from President Obama, which I think nicely captures the spirit of the clemency initiative:
The power to grant pardons and clemency is one of the most profound authorities granted to the President of the United States. It embodies the basic belief in our democracy that people deserve a second chance after having made a mistake in their lives that led to a conviction under our laws. Thousands of individuals have applied for commutation, and only a fraction of these applications are approved.
I am granting your application because you have demonstrated the potential to turn your life around. Now it is up to you to make the most of this opportunity. It will not be easy, and you will confront many who doubt people with criminal records can change. Perhaps even you are unsure of how you will adjust to your new circumstances.
But remember that you have the capacity to make good choices. By doing so, you will affect not only your own life, but those close to you. You will also influence, through your example, the possibility that others in your circumstances get their own second chance in the future.
I believe in your ability to prove the doubters wrong, and change your life for the better.