Federal Clemency Forecast: Not good, but not hopeless

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Federal Clemency Forecast: Not good, but not hopeless

By Nancy Crist

Although two leading advocates of clemency and sentencing reform are appalled at President Trump’s promise to grant clemency to family members, they also see it as the chance to shed light on those who deserve federal forgiveness—thousands of prisoners whose clemency petitions remain unanswered.

“It’s likely Donald Trump is going to use pardon power for his friends, for his family, for the millionaires in power,” said Mark Osler, clemency attorney and professor at St. Thomas School of Law in Minneapolis. “When he does, we need a counterpunch…to be ready with stories of the people who have been ignored, whose petitions have sat for a year or more.”

A clemency initiative was launched by President Obama in 2014 to offer low-level, nonviolent drug offenders the chance to petition to have their sentence reduced. Through this proactive approach, the president sought to counter exceptionally harsh mandatory sentences that led to unjust lengthy, often lifetime incarceration, of thousands. By the time Obama left office last January, 1,715 inmates had been freed, but nearly 3,500 pardon requests remain in limbo to this day.

Rachel Barkow, faculty director of New York University’s Center on the Administration of Criminal Law, shares Osler’s dim forecast. “I don’t think you’re going to see many, if any, clemency grants out of this administration,” she said. Barkow serves on the bipartisan U.S. Sentencing Commission, which is charged with establishing sentencing guidelines for federal courts. Federal judges are required to review those standards in order to impose equitable sentences for federal crimes involving drugs, immigration, firearms and child pornography.  

While the clemency situation is tough, Barkow says it is not hopeless.  “I do think there are people in prison serving excessively long sentences who should have been granted clemency in (President Obama’s) initiative, but weren’t,” Barkow said. “They need to try other strategies…like asking the U.S. attorney in their case if they’ll agree to a reduced sentence.”

This type of strategy became known as a Holloway motion in 2014 when Loretta Lynch, U.S. attorney for the Eastern District of New York, agreed to U.S. District Judge John Gleeson’s request to vacate two or more convictions of Francois Holloway, sentenced to 50 years for carjacking, so that he could return to court for resentencing. In his summary memo, written on July 28, 2014, Judge Gleeson wrote:

To put (Holloway’s) sentence in context, consider that in fiscal year 2013, the average sentence for defendants convicted of robbery in the federal courts was 77 months…Holloway got 691 months. He would likely have fared better if he had committed murder.

Barkow believes that the chances are slim for those seeking to use a Holloway motion. “That will be hard, if not harder to get, than clemency,” Barkow said. “The (U.S. attorney) thought in the first place that the sentence made sense. So there needs to be some reason why they now want to take a different view. There’s a reluctance to second guess the decisions that a prior prosecutor made unless there’s an extraordinary reason to do so.” Still, Barkow believes it is worth pursuing for most offenders.

Although Osler says Obama’s clemency efforts fell short, he has no doubt of his positive intent. The president sent a letter that said “I’m counting on you” to every prisoner who received clemency. “That’s really a remarkable thing for the president of the United States to say to someone who’s been convicted of a drug crime,” Osler said. “We’ve gone from a president who is concerned for the least powerful to a president who is concerned for the most powerful. If (Trump uses) the pardon power, it will apparently be for those who are wealthy beyond belief and who are at the levers of power as well, which is pathetic.” 

Osler says there is reason to be disheartened about the future of federal clemency because its decision-making process involves Rod Rosenstein, deputy attorney general, and Don McGahn, white house counsel. “Those two guys are up to their ears in other problems,” Osler said. “It’s not that clemency is being actively opposed. Even worse, it’s being ignored. It’s gone from being something that was at the center of our national discussion about human dignity and narcotics crimes to something that isn’t even given a sense of value, other than Trump talking about members of his family.”

Every decision we make as humans impacts others. “When you do something good, it sends out ripples (and) affects people you never see,” Osler said. “But when you do something bad, it does too. When we decide we’re going to address narcotics the same way that has never worked, by locking people up, every single time we do that, it sends out ripples of pain…”

Barkow has a few ideas on how concerned voters can send positive ripples at the local and national level. “I certainly think that everyone should be active in paying attention to who their district attorney is,” Barkow said. When elections roll around, she advocates focusing on each candidate’s charging policies. “(Ask them) how do you feel about drug cases and how are you going to help people re-enter society after they’ve served their term?”

She also suggests voters educate themselves on the judges in their area. “Those are the people who are going to hand out sentences in state court,” Barkow said. “(You want) to be sure that judges are thoughtful in looking at the people who commit crimes, the factors leading to those crimes and what might be most beneficial for (offenders) to rehabilitate. You want a judicial bench that recognizes all of the complexities.”

At the federal level, Barkow recommends contacting your senator or representative and telling them you care about sentencing reform. “Congress has been considering making its new sentencing structure retroactive so that all those folks who were sentenced prior to 2010 can return to court to ask to be resentenced,” Barkow said.  

In 2010, Congress changed the way people were convicted for crack cocaine. Previously, an offender would need to possess 100 times the amount of powder cocaine to receive the same sentence as someone found with crack cocaine. That ratio was eliminated, as was the mandatory minimum sentence of five years for crack possession (without distribution). “That was a pretty big moment, but it only affected convictions going forward,” Barkow said.

In 2015, a bipartisan group of lawmakers introduced the SAFE Justice Act to Congress. The bill sought to limit the use of federal mandatory minimum drug sentences to high-level offenders. The bill’s supporters said it would reduce prison costs and populations, save money and reinvest savings into law enforcement. The bill would also make the Fair Sentencing Act of 2010 retroactive, allowing those sentenced to exceptionally lengthy prison terms to petition the court for resentencing. While the bill did not become law, bipartisan efforts continue.

In May, the Justice Safety Valve Act was introduced in the House (H.R. 2435) and Senate (S. 1134). If passed, the bill would allow judges to give a sentence different from the mandatory minimum sentence in a federal case. Although the bill does not seek to make sentencing retroactive, voters can emphasize to their lawmakers it’s an important stipulation they want included.  

Each session of Congress lasts two years, which means there is time for individuals to take action on the Justice Safety Valve Act before the session ends in December 2018. “(Legislators) certainly hear about being tough on crime because so many people in the public seem receptive to that,” Barkow said. “But it’s also important to tell them when there are laws that make no sense and aren’t keeping us safe, that are keeping people in prison who shouldn’t be there and wasting resources.” 

Nancy Crist is a storyteller whose words have appeared in print, online and on stage for three decades.

DWS Note: Donald Trump has pardoned former sheriff (and contemptuous violator of civil rights) Joe Arpaio.  Read Mark Osler’s op-ed in the Waco Tribune for his views on this abuse of the pardon power when 11,000 petitions for clemency are ignored.