Dusting Off Obama’s Clemency Powers

Yesterday, the DOJ announced changes to the clemency process. Philip Bump lists the new criteria inmates must meet:

• Be federal inmates who would have received a substantially lower sentence if convicted of the same offense today,
• Be non-violent offenders without ties to criminal organizations or gangs,
• Have served at least 10 years of their prison sentence,
• Have no significant criminal history,
• Have demonstrated good conduct in prison, and
• Have no history of violence prior to prison.

Nicole Flatow further unpacks the news:

There are some 23,000 inmates who have served more than ten years for a non-violent crime, according to the Justice Department. Another estimate cited by CNN put the number of those who likely meet all six criteria at 2,000, and that number may likely get pared down hundreds once inmates are reviewed by the DOJ’s Pardon Attorney.

This is a small fraction of the some 200,000 inmates in federal prisons, and it won’t account for any of those individuals sentenced to five or ten-year minimums for minor crimes. But it should take on some of the longest, and would be an astronomical increase over the number of commutations Obama has granted thus far throughout his entire presidency: ten.

Sullum hopes the administration is serious:

Even if the number of prisoners freed under the new policy is only in the hundreds, Obama will look much better than any of his recent predecessors. No president has broken the double digits with commutations since Lyndon Johnson, who issued 226 over 62 months. Since then total commutations have ranged from a low of three under George H.W. Bush to a high of 61 under Bill Clinton (followed closely by Richard Nixon with 60). George W. Bush issued just 11. “The doors of the Office of the Pardon Attorney have been closed to petitioners for too long,” says FAMM General Counsel Mary Price. “This announcement signals a truly welcome change; the culture of ‘no’ that has dominated that office is being transformed.” If Obama follows through on his promises to ameliorate some of the appalling injustices committed in the name of the war on drugs, it will be one of his most admirable legacies.

But Tim Lynch fears that few inmates will be released:

The administration is really hyping this initiative and raising expectations about dramatic moves by Obama as this gets underway. I remain skeptical for a few reasons.  First, I question the narrative that it has only recently occurred to Obama that there ought to be more meritorious clemency petitions on his desk.

Second, I note that the administration is expecting to receive thousands of petitions and applications.  That language is important.  Later on, Obama’s people may say, “As expected, we received thousands of applications! We never said there would be hundreds or thousands of commutations.”

Third, there’s just no way of telling how the criteria are going to applied.  What are “significant ties” to gangs?  “Significant” criminal history?  A “history” of violence?