The bold step President Obama could take to let thousands of federal inmates go free

By Fusion Staff  |  May 4, 2016 | 7:44pm
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When President Obama announced a new initiative in 2014 to encourage nonviolent drug offenders serving long sentences to apply for clemency, administration officials said that up to 10,000 people could be released from prison. It was billed as a way for him to have a direct impact on a mass incarceration system that Obama has called “a source of inequity that has ripple effects on families and on communities and ultimately on our nation.”

Now, two years later and with less than a year left in Obama’s term, only 248 inmates have been granted clemency. Yes, that’s more than his five predecessors combined. But as this graphic from The Washington Post shows, it’s just a drop in the bucket of the total federal prison population—a bucket the size of an ocean.

This week is the deadline for most in-progress clemency applicants, although White House officials have vowed to continue granting new clemencies in the months to come. At a Politico event last month, White House counsel Neil Eggleston said he had told his staff “no more eating, sleeping or drinking until we get all these commutations done.” With just 261 days left in Obama’s term, however, it seems unlikely that the administration will be able to raise its numbers anywhere near the 10,000 it once predicted.

It’s a situation that gets to the heart of the contradictory nature of the presidential pardon and clemency power. On the one hand, granting clemencies—constitutionally shielded from almost any type of limitation—is among the most powerful tools available to a president in terms of reshaping the federal criminal justice system. But in modern history, most presidents have all but ignored it, granting just a handful of clemencies.

So what should Obama have done differently? Activists and criminal justice experts say he could have had a far bigger impact on the federal prison system if he had taken a page from the one recent president who actually put the clemency power to good use: Gerald Ford.

In more than seven years, Obama has managed 248 clemencies; in one year, Ford granted clemency to 13,603 people. The way he did it could provide Obama and future presidents a key lesson for fighting mass incarceration.

Ford is perhaps most remembered for pardoning his predecessor, Richard Nixon. But Ford also granted clemency to thousands of draft dodgers and deserters from the Vietnam War. When he came into office, tens of thousands of young men were being prosecuted or were already in prison for avoiding their military service. Some had been arrested for not complying with the draft, while others were drafted into the military and then deserted.

The new president acted quickly to address the issue. A month after taking office, Ford signed an executive order creating a commission of lawyers, former elected officials, and generals who would accept petitions for clemency from anyone charged with draft dodging or desertion.

In a speech announcing the commission in September 1974, Ford said that it would help “give these young people a chance to earn their return to the mainstream of American society, so that they can, if they choose, contribute, even though belatedly, to the building and the betterment of our country and the world.” Granting draft-dodgers clemency was necessary, he argued, to “bind up the nation’s wounds.”

The commission had exactly one year to do its work. Petitions started flowing in from around the country. Soon, the board grew from nine to 18 members, and hired 400 staff attorneys to handle the workload.

Individuals who applied had to take an oath of allegiance to the United States and could write a letter explaining their situation. Each case was reviewed individually, taking into account how long applicants had spent in prison and any mitigating factors they explained. The board recommended that some offenders be immediately pardoned, and suggested reduced sentences or community service requirements for others. An early computer system was used to flag outlier cases, where petitioners had similar circumstances to others but received harsher sentences.

After a year, the commission gave its clemency recommendations to Ford, and he enacted them. In that time, the board reviewed 21,500 petitions and recommended that the president grant clemency to 13,603 of them, according to a report by the Comptroller General. The entire project cost a total of $8 million ($38.6 million in today’s dollars). But the net savings of not locking up or prosecuting thousands of people more than made up for it. (Today it costs $30,600 a year to incarcerate each federal inmate.)

At one military base in Indiana, where deserters came to sign up for the clemency program in 1974, People magazine profiled some of the men applying. Some had fled the draft for ideological reasons, others to take care of their family. “I just didn’t feel it was right to kill someone,” 20-year-old Russell Wilson, from Albany, Ga., told a reporter. He said he didn’t want to be “sent to a place to shoot a guy who could never threaten you, to some weird place to fight and die.” Baltimore resident Harold Cummings, 27, said he left the Marines to tend to his sick mother. “People should realize we’ve been through enough,” he said. “Most of us are tired of running.”

Some at the time criticized the program for being too complicated for applicants, or not extensive enough. But it went a long way toward helping the country exorcise the ghosts of Vietnam, and laid the groundwork for future reprieves. A year and a half later, President Jimmy Carter gave blanket amnesty to those who hadn’t been charged, allowing draft dodgers who fled to Canada to return safely, for example.

Ford’s commission also left behind a detailed report outlining its work—essentially a how-to document for future presidents to create clemency boards. But that report has been more or less ignored for the past 40 years.

Mark Osler, a law professor at the University of St. Thomas in Minneapolis, is trying to change that. For five years in the ’90s, Osler was a federal prosecutor in Detroit, his hometown. He dealt with a lot of drug cases, doling out mandatory minimums to 18-year-old kids caught with a few grams of cocaine. “I was a true believer,” he told me.

But as he paid attention to the effect that harsh sentences were having on his city and listened to the passionate arguments of the public defenders on the other side of the courtroom, Osler realized he couldn’t keep doing what he was doing. He quit the Department of Justice in 2000 and went into academia, studying sentencing disparities and eventually founding the first law clinic in the country that teaches law students how to help prisoners apply for federal clemency.

That research brought him to the Ford clemency commission. “What is telling about it is that no one remembers it,” Osler said. “If it had been a controversial disaster, people would remember it. And they don’t.”

When Osler started looking into clemency, Obama had just signed a milestone 2010 law reducing the 100-to-one sentencing disparity between crack and powder cocaine. But that law didn’t apply retroactively, which meant that the thousands of federal drug offenders who received long sentences under the old system—most African-American–would stay in prison. “The issue of retroactivity was never on the table,” said Nkechi Taifa, a longtime civil rights activist who helped fight for the bill’s passage. “We knew it was a nonstarter.”

With his clemency power, however, Obama could essentially apply the law retroactively by granting mass clemencies to all inmates who would have already served their time under the new sentencing guidelines. Osler and Taifa teamed up to urge the White House to start a Ford-style clemency board to quickly review petitions from inmates charged with drug crimes.

“This wouldn’t be a get-out-of-jail-free card,” Taifa said. “It would be a structured review process… something that would give folks cover.”

Over the course of four meetings with White House policy staff in 2012 and 2013, the two made their case. “We were heard politely,” Osler said. After one meeting in the Vice President’s office, Osler unsubtly left behind a copy of the Ford clemency commission report.

But nothing came of it. The officials they met with seemed to be concerned about the cost of convening a board and getting funding for it approved by Congress—clearly the biggest hurdle. Ford, armed with discretionary funds, did not need Congressional approval for his commission, but experts say Obama likely would if he wanted to get funding for an initiative on the same scale today. Funding a clemency commission for drug offenders would almost surely face Republican opposition in today’s far more polarized political climate.

At the same time, Osler and Taifa point out, draft dodgers weren’t very popular in 1974, either. And releasing even a fraction of the number of inmates Ford granted clemency would result in massive cost savings for the federal government.

A White House spokesperson declined to comment specifically on whether the idea of a new clemency commission had been seriously considered.

In any case, instead of a new commission, Obama announced his own initiative: Clemency Project 2014. It was a coalition of five nonprofit advocacy groups that mobilized a small army of pro-bono attorneys to help inmates write clemency petitions. Any inmate convicted of nonviolent drug charges who had served more than 10 years and would get a shorter sentence under today’s regulations was eligible to apply. No taxpayer money would be used.

The group was quickly overwhelmed by the 36,000 applications they received, and has struggled to find enough attorneys willing to take on the inmates. The initiative also didn’t address one of the biggest issues of the current clemency system: the maddening layers of bureaucracy that stand between an inmate’s petition and the President’s desk.

If you’re an inmate sitting in federal prison who sends in a clemency petition, it first gets reviewed by the staff of the Pardon Attorney, Robert Zauzmer. Then it gets reviewed by Zauzmer himself. Then there’s a review by the staff of the Deputy Attorney General, Sally Yates. Then it gets reviewed by Yates herself. Then there’s a review by the staff of the White House counsel, Neil Eggleston. Then it gets reviewed by Eggleston himself. And finally, it gets to the president.

At any of those stages, the petition can be thrown out. “If you were designing this system to be inefficient, that’s exactly what you would do—have multiple people doing a review of the same set of facts,” Osler said.

To make things worse, for the first half of that process, the petition is being reviewed by people in the Department of Justice—the same office that prosecutes federal inmates to begin with. Some activists believe that that’s a clear conflict of interest. “I was a federal prosecutor…and that affects the way you see things,” Osler said.

Obama’s Clemency Project 2014 (CP14) initiative has given thousands of inmates pro bono attorneys to help them present the best claim possible. But it also added some new layers of bureaucracy onto that already unwieldy system. Now, people applying to CP14 have an initial screening of their case by project staff, a review by their pro bono attorney, a review by a screening committee, and a review by CP14’s steering committee. Then, after all of that, it gets submitted to the staff of the pardon attorney, starting the normal process at the beginning.

Cynthia Roseberry, the head of CP14, said the additional scrutiny from her staff and the addition of a lawyer leads to petitions that are much stronger than average. “There’s an immense difference in the type of petition that an applicant would provide [on their own] from what a trained lawyer would provide,” Roseberry said. “The Department of Justice receives an expertly-designed petition.”

There’s no argument, however, that petitions typically take a long time to work their way through the system. With all the hurdles to jump through, only about 60 of the 36,000 inmates who applied to CP14 have been granted clemency. (More than 150 have been granted clemency by applying the typical way, directly to the pardon office, not through CP14.) If Obama had appointed a Ford-style clemency board, he could have cut down the bureaucracy to three or four steps: a review by the board’s staff, a review by the board, a review by the White House counsel, a review by the president.

In the last few months, Obama’s advisers have been making the argument that he’s granted “more [clemencies] than the previous six Presidents combined.” But that calculation is false, as it incorrectly ignores the clemencies granted through Ford’s commission. (A White House spokesperson noted that Department of Justice statistics only count the 22 non-Vietnam related clemencies that Ford granted.)

For many recent presidents, clemency has been treated more like an afterthought. Until recently, Obama announced them at the end of each year, before he jets off to Hawaii with his family—a last-minute Christmas gift to a tiny handful of prisoners.

With fewer than 10 months left in office, even if Obama had a change of heart and decided to create a clemency board today, it would almost surely be too late. But Taifa and Osler say it’s an idea that should be picked up by the next president. “This should not end with the Obama administration,” Taifa said.

“I do not want to delay another day in resolving the dilemmas of the past, so that we may all get going on the pressing problems of the present,” Ford said when he announced his clemency board. If President Obama—or the next president—wants to resolve the past failings of our criminal justice system, then they should also take lessons from one of its rare success stories.

Correction: An earlier version of this story cited a research paper that said the board granted 14,514 clemencies in its first year. In fact, a review of the board’s original report shows that 13,603 clemencies were granted.

Casey Tolan is a National News Reporter for Fusion based in New York City.

 
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