Although 2014 is only weeks old, the Obama administration is making good
on its promise to use the power of the executive branch to advance the
President’s policy agenda when Congress will not, or is slow to,
act. On Thursday, the Office of the Attorney General issued a request
to defense lawyers to find and reach out to federal prisoners incarcerated
on drug charges and encourage them to apply for clemency.
Clemency, literally is an act of mercy granted by an executive in a government
(in this case the President). Clemency can take one of three forms: a
reprieve, a commutation of sentence, or a pardon. A reprieve is usually
the staying of an execution; a pardon is forgiving the crime and its punishment;
and commutation of a sentence means the reduction of sentence to a lesser
one. In this case the Attorney General is implying that prisoners would
be expecting a commutation of their sentence or pardon.
The impetus behind this move appears to be a desire to spur the Senate
to act on a bill that would make the
Fair Sentencing Act, passed in 2010, retroactive. The Fair Sentencing Act reduced the 100:1 crack to cocaine
sentencing difference to 18:1. Because powder cocaine is primarily an
“affluent white” drug and crack is a drug historically used
by poorer African Americans, the practical effect of the 100:1 ratio was
to put a disproportional number of those African Americans in prison for
disproportionately longer time. As the Fair Sentencing Act was proactive,
there were still approximately 30,000 individuals serving crack sentences
as of the end of 2011.
Congress is considering a bill that would make the 2010 sentencing guidelines
retroactive, which could allow thousands of these crack-prisoners to be
eligible for reduced sentences. In fact, the Senate Judiciary Committee,
day ago, approved this bill that would allow prisoners sentenced under
the old rules to ask judges grant them early release. The bill would also
reduce some mandatory minimum sentences and give judges more discretion
in setting prison terms.
Although the Attorney General’s request to defense attorneys to apply
for clemency is supported in essence by civil rights advocates as well
as many defense attorney’s, some groups representing prisoners’
rights feel that this is going to lead to an overwhelming a inundation
of applications to the pardon unit of the Justice Department, which already
faces a significant backlog. Many feel that the legislative solution would
be the most efficient and practical.
Ironically, although Judiciary Committee Bill has some supporters in both
parties, one group that has questioned the wisdom of it comes from prosecutors
in the Justice Department, that is, Mr. Holder’s own subordinates.
The National Association of Assistant United States Attorneys sent the
Attorney General’s office a letter expressing its belief that “Mandatory
minimum sentences are a critical tool in persuading defendants to cooperate,
thereby enabling law enforcement to dismantle large drug organizations
and violent gangs.”
While the ultimate fate of the bill is uncertain, the Obama administration,
in reaching out to defense attorney’s and implying that clemency
for low-level, non-violent drug offenders, is indicating that clemency
now be the rule rather than the exception. Along with the
Holder Memo, this action by the Attorney General is another important step in rectifying
what we defense attorneys have realized for some time; the federal drug
statutes and the attendant Guidelines enhancements are out of step with
the reality of drug crimes that are actually prosecuted on daily basis
in this country.