Tuesday, April 22, 2014

Obama's Commutation Program: Details Forthcoming

It is reported that, later this week (perhaps tomorrow), Deputy Attorney General James M. Cole will announce specific details about the "expanded criteria" the Justice Department will use to review applications for commutations of sentence. He will also detail the logistical effort underway to ensure proper reviews of the anticipated wave of applications.

Readers of this blog are well aware of the fact that there has never ever really been a shortage of applications for commutations of sentence in the Office of the Pardon Attorney. Recent years have brought in record numbers. The problem that is difficult to ignore is what happens to the applications once they are in that Office. A former U.S. Pardon Attorney famously described that Office as the place where applications simply "go to die."

Earlier this week, the White House sent signals that it might finally be ready to address this situation. Media were also informed that President Obama may commute the sentences of hundreds, if not thousands, of federal prisoners (at point we noted back on March 15).

To date, we know very little about "the plan." For years now, persons such as myself have supported the notion of removing the pardon process from the Department of Justice altogether, or the creation of a Gerald Ford-style Vietnam clemency board (an idea first touted by Mark Osler). That Board took in applications and reviewed them, one at a time, on the basis of clearly stated guidelines. The idea was to make tough but necessary decisions in a systematic - but complex - way, as objectively as possible.

The Editor of this blog continues to want a Ford-style approach to commutations of sentence. It would be great if the decision-making grid in the Office of the Pardon Attorney would favor commutation applications from 1) first time offenders 2) non-violent offenders 3) those who committed offenses when they were relatively young 4) those who would not even be in prison were they sentenced under the current sentencing guidelines for drug offenses.

In my view, those who meet these criteria and 5) have a respectable record of conduct in prison 6) the support of a judge and/or 7) the support of a federal prosecutor should be moved to the top of the pile. Their applications should receive top priority. They should not be in prison another day.

I would even be supportive of commutations of sentence for those who meet most of the above criteria and happen to be 65 years of age or older.

Finally, although no one has mentioned it to date, it seems that it might be prudent to grant "conditional pardons" in many instances as a means of commandeering good conduct from those who might not appreciate the historic nature of their big break. There is little doubt that any instances of repeat criminal offenses will receive a world of publicity and there is no rebuttal quite as effective as immediate revocation of commutation and re-imprsonment.

Similarly, the President should use the above criteria to grant "conditional commutations of sentence at a later date."  That way, those early in their sentences, under the old guidelines, can receive a reduced sentence, consistent with the new guidelines. The "conditions" could then also include good conduct in prison. Generally speaking, one hopes that the lawyers that are supposed to be headed to the Office of the Pardon Attorney for assistance in processing applications are sensitive to the legal and political value of these options.

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