Pardon Me, Mr. President?

Flickr/Victoria Pickering

This week, the Department of Justice (DOJ) announced the start of a new initiative on clemency, encouraging thousands of inmates—particularly those convicted during the Drug War crackdown of the 1990s—to send in petitions to have their sentences commuted. The new initiative offers six new criteria by which petitioners will be judged, including the following: prisoners must have served 10 years of their sentence, must not have lengthy criminal records or gang convictions, and show that they would have gotten off with a lighter sentence had they been tried today. In his more than five years in office, Obama has been the stingiest president in history when it comes to granting pardons; the new program could make him one of the most generous.

But the biggest news for criminal-justice reformers has been the administration’s appointment of a new pardon attorney to oversee the program: Deborah Leff, who spent her years at DOJ working on the Access to Justice Initiative, an agency meant to help low-income defendants get a fair hearing in court. “Poor people often do not have access to counsel, and when they do get an attorney, that lawyer is often overworked, undertrained, undercompensated, and placed in a system that encourages a quick plea bargain and discourages carefully listening to the needs of clients,” she wrote in an article with Melanca Clark for the American Bar Association. Those who come from the prosecutorial side of things—which is most everyone at the Department of Justice—tend to be more skeptical of the idea that convicted criminals can be reformed. But Leff's background makes her more likely to be sympathetic to requests for clemency.

“One thing about law and particularly this kind of law is that almost always people are more important than rules,” says Mark Osler, a law professor at St. Thomas University and founder of the nation’s first federal clemency clinic (I recently profiled his story in our most recent print issue). “Leff’s work within the DOJ has largely been about making sure that people who have a petition or grievance have a way to have it heard fairly.” For those hoping to see a robust clemency push, her background bodes well.

The administration’s clemency criteria have plenty of wiggle room, which makes the selection of a new pardon attorney all the more significant. The department wants petitions from applicants who are “non-violent, low-level offenders without significant ties to large scale criminal organizations, gangs or cartels.” Depending on how the U.S. pardon attorney exercises her discretion, an offender who grew up with gangs and was loosely affiliated with them could either be an ideal candidate for clemency or excluded altogether. Similarly, petitioners must have “demonstrated good conduct in prison”—a criterion that could include or exclude prisoners with one or two black marks on their records depending on the pardon attorney’s views. All in all, Douglas Berman, a law professor at Ohio State University and editor of the influential law blog Sentencing Law and Policy, estimates 5,000 or more prisoners will have a plausible claim for meeting all six criteria. But again, ultimate discretion is in the pardon attorney.

Ron Rodgers, the U.S. pardon attorney until this week, was known for his opposition to clemency requests. Rodgers and David Margolis, the Department of Justice assistant deputy attorney general, both got blasted in a 2012 report for the dramatic mishandling of one particular petition during the Bush regime: Clarence Aaron, who received a triple life sentence for his role a drug conspiracy. 

Leff’s appointment helps send a clear signal that this new initiative isn’t just lip service to the reform community, which until now hasn’t seen much action from the Obama administration. Despite rhetoric in the 2008 election about the casualties of America’s War on Drugs, in his tenure the president had done little to help those still serving decades-long sentences. Between 2003 and 2008, the courts had already helped to ensure judges didn’t need to follow draconian sentencing requirements. There were efforts to help people charged with drug crimes in the future; the Fair Sentencing Act in 2010 lowered the huge disparity in sentencing for crack and powder cocaine. But meaningful though the act was, it didn’t retroactively help most of the people who’d been put in prison for crack in the '90s. After the 2010 Republican tsunami, with Congress barely passing even minor measures, hope for broad legislation to help drug offenders still in prison all but vanished. 

With Congress gridlocked, the presidential pardon had been left as one of the few actions the administration could make without congressional approval. There was only one problem: Obama granted a total of one pardon in his first term, and the fewest overall of any president in history. The caution is not unwarranted: Pardons have become political risks. When Bill Clinton pardoned Marc Rich, a tax evader who was the husband of a major Democratic donor, the scandal was enormous. George W. Bush didn’t help matters when he commuted the sentence of former vice-presidential adviser I. Lewis “Scooter” Libby, who was convicted for his role in exposing a CIA operative. The scandals had reverberations—Holder came under some fire for his role in the Rich pardon during his appointment hearings. “In the last few decades, there’s been no political upside, only political downside” to granting clemency, Berman says.

But in the last few years, there’s been growing support on both sides of the aisle to see more common-sense approaches to dealing with drug crimes as well as a decrease in the prison population. At the state level, Republicans have been working for years to implement more cost-effective methods of handling drug offenses—such as probation, rehab programs, and restitution payments. On the left, advocates have been saying for years that the Drug War policies only made things worse, particularly in low-income black neighborhoods where people were disproportionately likely to get picked up and then face long sentences. Now, after years waiting for the politics to settle, prisoners and their advocates have renewed hope that the administration will finally take action. As Berman notes, Leff’s arrival helps show “this is not just a lot of sound and fury.”

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