We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

WASHINGTON POST REPORTS JUSTICE HAS SENT FINAL COMMUTATION LIST TO PRESIDENT; “HUNDREDS MORE” TO GET CLEMENCY

President Obama promised to commute up to 2,000 drug sentences. He has about 75 hours left to come up with the final 850 he needs.

The Washington Post reported yesterday afternoon that Justice Department officials have completed their review of more than 16,000 clemency petitions filed by federal prisoners over the past two years and sent their last recommendations to Obama. The President is reportedly set to grant “hundreds” more commutations to drug offenders during his final days in office, but apparently not the grand categorical gesture than some have urged him to approve.

The national discourse on commutations – which had mostly focused on drug defendants – changed dramatically last Wednesday when NBC News reported Army Private Bradley Manning – who released a trove of U.S. secrets to Wikileaks, leading to an espionage conviction in 2013 – is on Obama’s “short list” for a sentence commutation. Manning, who reportedly suffers from gender dysphoria, got a 35-year sentence, but is eligible for parole in three more years.

The media have been speculating about a Manning commutation for months. Last Friday, White House press secretary Josh Earnest, answered a media question about Manning and Edward Snowden (who stole thousands of secrets from the government and fled to hide in Russia). “So, I think the situation of these two individuals is quite different,” Earnest suggested. “I can’t speculate at this point about to what degree that will have an impact on the President’s consideration of clemency requests. I know that there’s a temptation because the crimes were relatively similar to lump the cases together, but there are some important differences, including the scale of the crimes that were committed and the consequences of their crimes.”

Earnest suggested Obama may be willing to offer Manning relief because – unlike Snowdon – Manning took responsibility for his actions in court. It also implies that Obama is willing to commute Manning’s sentence, an act that will be enormously unpopular with a lot of people. Obama’s willingness to do so increases the likelihood he will “go long” on the final commutations to BOP prisoners.

While the media was atwitter about Manning, DOJ was burining the midnight oil to slog through thousands of remaining clemency applications from less-known federal drug offenders. “We were in overdrive,” Deputy Attorney General Sally Q. Yates said. “We were determined to live up to our commitment. It was 24-7 over the Christmas break.”

At the end of last August, Yates promised DOJ would review every petition from a drug offender that was still in the department’s possession at that time — about 6,195 at that time. The DOJ did that, and even included several hundred petitions received through September 15, after her cutoff date, as well as petition from people with life sentences filed as late as November 30. The final count of petitions reviewed was 16,776.

The urgency arises from the generally-accepted perception that President-elect Donald Trump will dismantle Obama’s clemency initiative, which has resulted in commutation of sentence for 1,176 drug thus far. More than 400 were serving life sentences.

Yates said Obama will grant “a significant” number of commutations this week, but would not specify a number. The Post quoted several people close to the process as saying it will be several hundred. Perhaps in preparation for the announcement this week, last Friday the White House issued with its usual stealth a list of 804 clemency denials, which could be a final cleanup before the major commutation announcement this week.

Ohio State University law professor Douglas Berman wrote last night that DOJ and Obama deserve credit for “ultimately making clemency an 11th hour priority. But given that Prez Obama set of modern record for fewest clemencies during his first term in office, and especially because he leaves in place the same troublesome clemency process that has contributed to problems in the past, I will still look at Obama’s tenure largely as an opportunity missed.”

Shadowproof, White House justifies Chelsea Manning’s possible commutation (Jan. 13, 2017)

Washington Post, Obama to commute hundreds of federal drug sentences in final grants of clemency (Jan. 16, 2017)

Sentencing Law and Policy, After reviewing tens of thousands of requests, Obama Administration reportedly finds a few hundred more prisoners worthy of clemency (Jan. 16, 2017)

– Thomas L. Root

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

CLEMENCY: SOMETHING’S HAPPENIN’ HERE

We’re down to 11 more days of President Obama to finish whatever he has planned on commutation of sentences, and we’re hearing a couple of things to suggest that something big is about to happen.

A few weeks ago, we heard that the Obama Administration had asked the Dept. of Justice for an opinion as to whether Obama could commute sentences without naming individual names, more of a blanket commutation for those who met certain criteria on their sentences, prison conduct and the like. The rumor was second-hand, but we did confirm that the source was likely in a position to be aware of the information he was quoted as passing along.

We don’t know what advice the DOJ provided on the subject (or even if it did), but the question tantalizingly suggests White House interest in a large-scale across-the-board commutation.

Then last Thursday, we learned from a Clemency Project 2014 lawyer that one of the cases we had been working on with her – a guy who had been rejected for clemency by the Project last summer – had been reconsidered. The Project needed a formal application worked up and filed with the Pardon Attorney promptly. We made the Friday midnight deadline, and we were interested at the sudden flurry of interest and demand for an immediate filing.

We think something’s up.

The media still include the predictable skeptics – including the incoming Attorney General – criticizing the Obama clemency push. Jeffrey Sessions, a former U.S. attorney whom Trump has tapped to be the next AG, complains that “so-called ‘low-level, non-violent’ offenders” do not exist in the federal prison system. Other complain that with a recidivism rate of 75%, three out of four people getting commutations will commit new crimes. 

Another critic argued that with the commutations, “Obama has effectively undermined the justice systems of the states and… puts Americans’ lives and property at risk.”  (This, of course, is nonsense: Obama cannot pardon state inmates, only federal ones).

But beyond the naysayers’ cants, report are increasingly speculating about clemencies to come. In a piece about commuting the sentencing of Obama’s old friend and Illinois governor Rod Blagojevich, Obama himself suggested that he planned to do more: “I study these cases on an individual basis. As you know, I have exercised my commutation powers very aggressively to make sure that we are not over sentencing people, particularly low-level drug crimes. Some of these higher-profiler cases, we’ll see what gets to my desk.”

P.S. Ruckman, a political science professor at Northern Illinois University and author of the PardonPower blog – which tracks clemency decisions by presidents and state governors – said he expects “commutations to a few hundred more drug offenders, and a handful of pardons,” mostly in drug cases, before Obama leaves office.” Douglas Berman, an Ohio State University law professor and sentencing expert, speculated that because Obama’s “shown a commitment to reduce sentences that he thinks are unjust or excessive, maybe his last few batches will include some high-profile folks.”

Margaret Colgate Love, the Pardon Attorney under President George W. Bush, told Slate magazine that the Obama administration has “already had perhaps the most prolific final year of any president. But that’s only when measured against his fairly barren first seven years. His administration has pledged to act on every one of the thousands of commutation applications filed pursuant to the 2014 initiative, which means that there will either be thousands of grants or thousands of denials in the final weeks. Either way, he will be subject to criticism—and the pardon power itself may be the main casualty.”

Slate, The George W. Bush Advice Obama Should Have Taken (Jan. 5, 2017)

Chicago Sun-Times, Patti Blagojevich on Obama commutation hope: ‘He didn’t say no’ (Jan. 6, 2017)

The Lens, Obama commutes sentences of hundreds of cocaine dealers who targeted kids (Jan. 4, 2017)

The Hill, Last gasps of Obama’s imperial presidency (Jan. 5, 2017)

San Francisco Chronicle, Prominent prisoners’ supporters pin pardon hopes on Obama (Jan. 7, 2017)

 –Thomas L. Root