New Changes to Pardon and Clemency Process

DOJ Announces Dramatic Changes to Expedite Clemency Petitions

By Derek Gilna

           The U.S. Department of Justice (DOJ) on April 23rd announced significant changes in the Office of Pardon Attorney, which processes Pardons, Clemencies, and Commutations.  The former head of the pardon office, Ronald Rogers, had been criticized for lack of pardons issued during President Obama’s administration, the fewest in recent history.  To date, Obama has granted only ten clemencies.

            Attorney General Holder’s announcement of the new emphasis on pardons said that it will focus on application related to the Fair Sentencing Act of 2011, but that it would not be limited to just drug offenders.  He noted that the limited retroactivity offered under Fair Sentencing meant that many are still unfairly confined in prison based only upon the year of their conviction, rather than any other factor.

            Under the current system, the President only sees the applications for relief that make it to his desk after being approved by the DOJ- the very agency that prosecuted those who are now seeking relief.  Holder eased out the old DOJ attorney who was clearly unsympathetic to the petitions he was supposed to be impartially reviewing, and replaced him with one who is committed to putting thousands of applications on the President’s desk for action.  The stage is set for relief on a scale that should have a significant impact on the number of people in federal prison.

            Prisoner-Rights attorneys are being encouraged to submit applications to the office without limitation, and Attorney General Holder has indicated a new willingness to cooperate with the defense bar to help the justice system “deliver outcomes that are fair and accessible to all,” and “achieve… equal justice under the law,” in the words of his deputy, James Cole.

            Under Obama, almost al applicant have been denied clemency under the old DOJ review system, including one man, Clarence Aaron, who was one of the first eight individuals only recently granted clemency by Obama.  For a federal government tiring of the expense involved in long term confinement of non-violent and often chronically-ill offenders, it is action that is long overdue.

            The pardon, clemency, and commutation process is exclusively granted to the President under the U.S. Constitution and is an expression of mercy, and a rare instance of a check on a justice system that often seems to hand out sentences without regard to realistic analysis as to their impact, on either a personal or societal basis. There are specific procedures to be followed in submitting applications for sentence relief, and like all forms of sentence relief, will in all likelihood require the services of skilled legal professionals to be successful.  That was the case with the eight clemency petitions most recently granted by the President.

Drug-Sentence Relief No Longer Rumor But Fact

Sentencing Commission Vote, Holder Memo to Prosecutors Will Reduce Drug Sentences

By Derek Gilna

            The U.S. Sentencing Commissions vote to reduce sentencing guidelines two levels for certain people convicted of nonviolent drug offenses is a major step in reducing the sentences of both the newly-convicted and those now in prison.  The action was hailed by the ACLU senior legislative counsel, Jesslyn McCurdy, who noted, “(O)ur country is slowly but steadily reversing the damage done by the failed, racially biased war on drugs.  The actions taken by the Sentencing Commission today are another positive move toward reducing unnecessarily long sentences that have led to bloated, overcrowded prisons.” “Our criminal justice system,” she continued,” is smarter, fairer, and more humane than it was a year ago, and we need to make sure momentum continues in the right direction.”

Attorney General Holder wasted little time in ordering the implementation of these proposed changes In a memo to U.S. prosecutors around the country, Holder is calling for the immediate implementation of the two-level sentencing reduction for drug offenders, even prior to its effective date this coming November.

            Holder is riding a public wave of pro-reform sentiment that shows that 63 percent of Americans agree that it is time to move away from mandatory minimum sentencing, and 67 percent who say that state and the federal governments should focus on treatment rather than punishment.  Even Congress, in a rare-show of bipartisanship in recent years, is responsive to reforms that would save billions of dollars and reduce prison time.

            If Holder is successful, this move has across-the-board ramifications for all offenders, because it shows that the administration is willing to lead on the subject of sentence-reduction, rather than wait for the bureaucrats to act.  It also puts Holder in direct conflict with local prosecutors, who, of course, think that they are doing a good job by locking up non-violent offenders for decades.   To illustrate, The National Association of U.S. Assistant Attorneys has issued this completely clueless quote: “We consider the current federal mandatory minimum sentence framework well constructed and worth preserving.”  They are entitled to their opinion; but Holder is their boss!  So, they have to implement his guidelines and follow his rules, or seek employment elsewhere.

 Fortunately, those holding this draconian view are in the distinct minority.  Perhaps they are bemoaning the fact that, without a constant stream of drug offenders to prosecute, their inflated budgets and cushy jobs might be slashed. 

Congress has shown itself receptive to sentence-reduction (and budget reduction) arguments with the introduction of the Smarter Sentencing Act, introduced in July of 2013, by both Republican and Democratic Senators, which wouldn’t abolish mandatory minimum sentences, but would give judges more leeway to impose more lenient sentences for certain non-violent drug crimes.  The bill was recently reported out of committee and now goes to the full Senate for a vote.

According to Senator Mike Lee of Utah, “Our current scheme of mandatory minimum sentences is irrational and wasteful,” adding that the Act “takes an important step forward in reducing the financial and human cost of outdated and imprudent sentencing policies…”

Tide Has Turned in War on Drugs and Prisoner Relief

By Derek Gilna

            In a previous life I was active politically for many years and carefully studied with interest the ebb and flow of the wave-like motion of political trends in this great country.  One of the realities of American society is once a trend gets started and gains momentum, it is hard to stop, but stop it must.

            Witness the “War on Drugs,” which took hold in the eighties and gained serious momentum for twenty years, spawning a whole industry taking advantage of the perceived threat of drug use, and creating a new group of prison-industry millionaires

profiting from the misery of hundreds of thousands unfortunate souls swept up in the “trend” to make our streets “safe.”

            Thirty years later, the American public knows that our streets are no safer as a result of the billions spent to incarcerate. In fact, crime rates have dropped more in states that have drastically reduced their prisoner populations.  Drug use, propelled by consumer demand, continues to exist, reduced not by heavy-handed prosecutions and long prison terms, but by education and rehabilitation.  Illegal substances still come into our country via the same routes from the same countries, shipped by the same organizations. Since  there is no way to arrest the overseas people who mastermind this industry, the justice system takes out its anger and frustration at being unable to stop the flow by hammering the bottom-rung offenders, most of whom are drug users themselves.

            However, even the strongest wave has to crest at some point, and although it might be hard to see from your perspective at this point, so it has been with the “War on Drugs.”   “Troops” are being “withdrawn,” as hiring freezes of additional assistant U.S. attorneys have gone into effect, and vacancies have not been filled.  The chief drug-war “general,” Attorney General Holder, has declared the war to be over, and instructed his subordinates to follow his orders to reduce prosecutions and the length of sentences.

            Non-partisan support for sentence relief in Congress is at its highest-level in memory, the Sentencing Commission has reduced two-levels from drug offenses effective November, and is also contemplating a similar move with white-collar offenses.  The President’s Pardon Office is due to announce new procedures to address the large number of non-violent offenders who were “over-sentenced,” and increase the number of sentence commutations. Look for even more action on this after the November elections are concluded.

            In short, all of the indicators point to the fact that, at long last, the trends are moving in the direction of relief for all prisoners. It's about time, for everyone's sake.

924C Reforms on the Horizon?

924c Reform Proposals On Horizon?

by Derek Gilna

18 U.S.C. Section 926c is the federal firearm statute that carries a 5, 7, or 10 year mandatory minimum sentence for each individual count and then an additional 25 year consecutive mandatory minimum for every “second and subsequent conviction.”

Prosecutors often choose to charge multiple 924c violations with each other violation, resulting in sentences that can end up being decades in length. Judge’s hands are tied as they are obligated to give the mandatory minimum sentence or commit reversible error. It is no wonder that every major prisoner rights groups has 924c in its sights.

Although the short-term progress in sentencing will probably be made by the U.S. Sentencing Commission, while reform bills move slowly through Congressional Committees, it is hard to envision sentencing reform being complete until 924c is changed, and made retroactive.

As I have said before, the best argument for reform is the continuing federal budget crisis, with correctional spending low on the list of politician’s favorite spending wish list. Every federal prisoner cost the feds $28,000 a year, which would pay for a year of college, certainly a more constructive use for the money.  

It is estimated that there are at least 3000 federal 924c prisoners serving life sentences, collectively costing hundreds of millions of correctional dollars that in no way improves public safety, not to mention the human toll for all concerned. Because of the intrinsic unfairness of these sentences, it would not be unwise to consider a petition for sentence commutation, emphasizing rehabilitation and mercy.