This week, federal prisons began notifying all 217,000 prisoners about a new initiative to reduce thousands of sentences. Mark Osler, Professor of Law at the University of St Thomas in Minnesota, has advocated for greater use of clemency for years, and started a commutations clinic, now in its third year. He previously worked as a federal prosecutor in Detroit, where he says he “became aware of some of the problems we were creating with our prosecutions, probably even more than we were solving.” The Prison Complex spoke with Professor Osler about what the Department of Justice’s new clemency initiative means.
Let’s start with some basics. What is clemency? What’s the legal definition and how is it used?
The United States constitution gives the president the pardon power. It’s really one of hte only unchecked powers that the president has, the courts can’t reverse it and congress can’t limit it. That power, the pardon power, primarily comes out in two ways. One is through what we know as pardons, where there is the legal effect of nullifying some of the effects of having been convicted of a crime. The other form of clemency is commutation of a sentence where the conviction remains intact but the sentence is shortened and what we’re seeing now with President Obama is a new focus on the form of clemency that’s commutation. He seems to have committed to shortening the sentences of a large number of defendants who have been over-sentenced primarily for narcotics sentences.
How has clemency been used historically in the US?
It’s varied quite a bit historically. The first use of clemency under the pardon power was by George Washington. He pardoned some of the people who had been sentenced to death in the Whiskey Rebellion. Since then, presidents have used it in very, very different ways. One thing that we’ve seen though historically is that most presidents used it regularly, that is they issued clemency throughout their terms. In the modern era though, the last three or four presidents, we haven’t seen that happening. Presidents have waited until the end of their second term to really use the pardon power, and that’s unfortunate because it was intended to be used when circumstances required it. and presidents haven’t been fulfilling that responsibility. It looks like that’s about to change with President Obama which is a great thing.
Tell us more about those changes announced by the Department of Justice.
What’s happening right now is there’s two big developments, one that isn’t getting talked about enough is that they moved out the old pardon attorney who was very resistant to granting clemency and have put a new person in as pardon attorney. Her name is Deborah Leff. Based on her background it would seem that she’s much more amenable to the actual issuance of clemency than the past two pardon attorneys have been. And that’s a really refreshing change and one that’s going to be important probably beyond Obama’s term because the pardon attorney is a civil service position not a political appointment. The second thing that we’re seeing is that the president, through the attorney general and the deputy attorney general has announced a new initiative to grant a large number of commutations where there’s going to be a streamlined process that’s going to be targeted towards those whose sentence would be lower if they were sentenced today. In other words, those who are most likely to benefit are going to be people who would receive the benefit of a change of the law or DOJ (Department of Justice) policies that have occurred since the time they were sentenced. The other caveat is that it’s only going to affect people who have served at least 10 years as of now. Again according to DOJ itself they are hoping to recommend clemencies to the president for hundreds or thousands of people. Which means its going to be the first broad, principled, use of the pardon power in four decades.
Talk us through the process of clemency. What’s the process that people go through in order to apply for clemency?
That process is going to be described in a communication that’s going to go out to people who are incarcerated in federal prisons (in May). There’s going to be presumably a form, that people can fill out that will describe their situation, how long they’ve been in, what they’ve been convicted of, what complicating factors there may be. And that’s going to be forwarded to a group outside the Department of Justice that’s going to screen them. That group has been formed by advocacy groups like the ACLU, (American Civil Liberties Union) the NACDL, (National Association of Criminal Defense Lawyers), the ABA, (American Bar Association) and a few others.
You mentioned you expect people convicted of drug offenses, to primarily be affected by this new move by the Justice Department. Will other people be eligible to apply for clemency?
Interestingly, when the deputy attorney general laid out what the parameters are going to be of the new program, he did not limit it to narcotics defendants, so there is not that formal limitation. Now, because most of the change in law and policy in the past couple of decades has been in the field of narcotics I think most people expect that the bulk of clemencies will be for narcotic defendants, but it’s important to recognize that that express limitation was not put on the program.
Why do you think the Obama administration, and the Justice Department has taken this step now?
I think there’s a few factors that come into play. Number one is that this president is a constitutional law scholar, he’s also someone who’s very aware of racial injustices. And here he has a constitutional power he can employ to fix an injustice that has a racial component to it especially when we look at the use of the crack laws, to reach long sentences. So that’s part of it. The second, and this is really important to recognize, is there is a right-left consensus right now on the issue of clemency. Recognizing that there is a problem with the federal over-extension of criminal law, that the war on drugs failed and it created really bad outcomes in terms of mass incarceration. Its not just people on the left who are saying this but you have significant voices on the right who are troubled by the cost and the justice issues. When you have conservatives and progressives agreeing on something like this it’s a much better environment for the president to do something. He’s stepping forward with people on both sides behind him.
Talk a little more about that apparent discrepancy that people can be serving much longer sentences or significantly longer sentences for crimes for which they wouldn’t receive the same sentence today.
One of the most obvious ones is the Fair Sentencing Act which passed in 2010. What it did was increase the threshold to trigger mandatory minimums in crack cases. When congress passed that it changed the law but it was not made retroactive so it didn’t affect people who were already in prison. What this program (the clemency initiative) provides is a way for those people who didn’t get the benefit of the Fair Sentencing Act to have their sentence revised to what it would be if they were sentenced today.
Why do you think those changes weren’t made retroactive?
I think it was a compromise in congress probably to get through the Fair Sentencing Act. They didn’t want to risk the failure to pass that measure by including retroactivity. That said it may well have passed even with retroactivity they just chose not to take that risk
Do you envisage this increased use of clemency having a significant impact on the federal prison population?
Given that we have a prison population north of 200,000 and a really ambitious clemency project would release 5000 prisoners, that’s significant, especially if you’re one of those 5000. But what’s really going to make a difference is sentencing reform and that’s something that congress will hopefully take up much more seriously in the next term.
What other tools are at peoples disposal to reduce the prison population?
That’s the biggest one. And frankly the other thing that’s really important, and it’s going on behind the scenes, is trying to change the culture in the Department of Justice. Instead of prosecutors of having an ethic where seeking a long sentence has a value in and of itself, they only do so where that is going to solve a problem. Let’s face it, with a lot of long sentences that have been received in the past it achieves retribution but it doesn’t solve a problem.
Do you think there’s an element of desperation in using this executive power to deal with these excessive sentences?
I don’t think it’s an act of desperation. I think it’s appropriate within the constitutional structure. We’ve seen this happen in the past. The president can identify and signal to the other branches of government we need to adjust the way we approach something. Look at what President Ford did after the Vietnam War where he assembled a presidential clemency board and gave clemency to thousands, to fifteen thousand people who had evaded the draft, or gone AWOL from the army. It wasn’t congressional action. That certainly wasn’t desperation, it was the appropriate use of a constitutional tool by the president to do something that was in the national interest, and I think that’s what this president envisions doing as well.