Thursday, April 24, 2014

Obama's Commutation Plan: The More You Look at it ...

We find a slight re-wording / categorization and ordering of the DOJ's recently announced criteria for the considerations of commutation applications useful. Attention will be given to the applications of

1. Those without a significant criminal history
2. Low-level offenders without significant ties to large scale criminal organizations, gangs or cartels
3. Non-violent offenders with no history of violence prior to or during their current term of imprisonment.
4. Those who have demonstrated good conduct in prison
5. Those who likely would have received a substantially lower sentence if convicted of the same offense
6. Those who have served at least 10 years of their prison sentence;

We find it significant that the policy does not say "first time offenders," but instead focuses on those without a "significant criminal history." That language, while certainly providing flexibility in decision making, is bound to result in a problem here and there.

The concern for non-violent behavior on the front end and "good conduct" in prison on the back end is wise. The only possible improvement we can think of is to grant conditional commutations of sentence, requiring a continuation of such conduct.

The requirement of service of at least 10 years in prison might be a game changer in and of itself. It may be the requirement which - if followed - takes most of the wind out of the sails of would be critics. Isn't ten years quite enough for a non-violent, low level offender, without ties to organized crime and a good record in prison? Especially if they would have received a lesser sentence under the current law?

Yes, we wish the DOJs grid were more explicit about some other things (the age of offenders, the input of judges and prosecutors, etc.). But the more we look at this, the more thoughtful and appropriate it seems. No, it will not satisfy those who prefer the more random, last-minute exercise of the pardon power. But those people can just wait in line.

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