New Executive Clemency Initiative from the Department of Justice

On April 23, 2014, Attorney General of the United States, Eric H. Holder, Jr. announced a new initiative intended to encourage appropriate candidates to petition for executive clemency from the President of the United States. The initiative comes amid public statements by Holder and other top federal officials suggesting President Barrack Obama may eventually issue hundreds, if not thousands, of commutations to federal prisoners, mostly non-violent drug offenders sentenced under now, mostly discarded, sentencing policies that affected a disproportionate number of minorities.

The announcement has prompted the Department of Justice (DOJ), through the Federal Bureau of Prisons, to set specific standards for the new initiative, and to form Clemency Project 2014, a consortium of volunteer defense attorneys and non-profit organizations who will assist some  clemency candidates advance their petitions.

The Criteria for Clemency

Although the Constitution accords the President authority to bestow clemency on anyone, the 2014 initiative is targeted at clemency for a specific profile of offenders. According to a Federal Bureau of Prisons announcement made on May 5, 2014, it invites petitions from “non-violent federal inmates who would not pose a threat to public safety if released.” The initiative is limited to inmates who:

• Are currently serving a federal sentence in prison, and, by operation of law, likely would have received a substantially lower sentence if convicted of the same offense(s) today;
• Are non-violent, low-level offenders without significant ties to large-scale criminal organizations, gangs, or cartels;
• Have served at least 10 years of their sentence;
• Do not have a significant criminal history;
• Have demonstrated good conduct in prison; and
• Have no history of violence prior to or during their current term of imprisonment.

Although the exact number of inmates who fall within this specific profile is not known, estimates from various prison and sentencing reform advocates put the number at anywhere from 2,000 to 8,000 federal inmates.

It is not known what definitions will be used to determine eligibility. For example, little guidance has been offered as to what constitutes a “significant” criminal history, or what the measure of “good conduct in prison” will be. Larger issues attach to the “substantially lower sentence” provision, and the prohibition on “significant ties to large-scale criminal organizations, gangs, or cartels,” which, if construed strictly, would eliminate a great number of low-level offenders in the first place, as many such offenders are lumped in with organizations under the Sentencing Guidelines’ relevant-conduct provisions. No word has been as to whether further refinement of the criteria will be made.

The Clemency Project 2014

The consortium of non-profit lawyers and organizations who have offered to assist eligible federal prisoners will first screen prospective candidates via a five-page survey posted on the Bureau of Prisons’ TRULINCS computer system, which will automatically forward a prisoner’s survey to the Clemency Project 2014 or the federal Office of the Pardon Attorney, upon request. Federal inmates can also print off a hard copy of this survey and submit it via U.S. Mail.

If the inmate passes an initial screening, his or her case will be forwarded to an appropriate Federal Public Defender or pro bono counsel for processing.

A Step in the Right Direction

It is not known whether President Obama will indeed endeavor to take the politically difficult step of actually commuting the sentences of a large number of federal inmates. And, although it would likely serve everyone’s interests if the criteria presented for clemency consideration were used as the basis for legislative-based reform, the team at prisonlawblog, which first broke the story of the TRULINCS inmate clemency survey, support the Clemency Initiative 2014 as a step in the right direction.