Time for a broad approach to clemency

Despite growing national discussion on criminal justice reform, Weldon Angelos sits in a federal prison serving out his 55-year prison term. Angelos was convicted in 2004 for three marijuana sales to an undercover agent totaling about $1,000 within a 72-hour period. During the course of these transactions he possessed a gun, which he did not use nor threaten to do so. But because of federal mandatory minimum sentencing laws, the sentencing judge was obligated to impose this draconian prison term because he had committed a repeat drug offense with a firearm, all the while acknowledging that the sentence was excessive.

While President Obama has stepped up the pace of granting clemencies in drug cases, his total since taking office is only 306. With 85,000 drug offenders in federal prisons, many deserving of consideration, the pace of commutations to date is encouraging but still quite modest. With only months to go in this administration there is growing concern that the clemency initiative announced by the Department of Justice in 2014 will fall far short of expectations. A coalition of legal groups has recruited several thousand attorneys who are meticulously researching potential applicants, but the pipeline for reviewing cases in the Justice Department has been woefully slow in considering these cases.

{mosads}Sentencing reform legislation pending in Congress would help to alleviate this problem through retroactive policy changes. But if that route is not successful the President could nonetheless employ a clemency process with a much more substantial impact. Rather than considering cases on an individual basis he could apply clemency in categories of offenses instead.

Such a process would not be novel. In 1974 President Gerald Ford issued an amnesty for convicted draft resisters, conditional on their agreeing to perform two years of community service. This was followed by an initiative from President Jimmy Carter in 1977 granting pardons to all such persons whether or not they had been convicted, and without the requirement for service.

There are several offense categories for commutation consideration for which there would be substantial consensus. The most obvious one applies to individuals serving federal prison terms for crack cocaine offenses who were sentenced before 2010. When Congress passed the Fair Sentencing Act in 2010 it reduced the scale of the drug quantity differential between powder cocaine and crack cocaine from 100 to 1 to 18 to 1. Prior to that, mandatory sentences of five years in prison applied to crack sales of as little as five grams, but were made equivalent to selling 500 grams of powder cocaine. Racial disparities in the implementation of these penalties were extreme, with African Americans constituting 80% of the crack defendants.

As significant as the law change was, it did not apply retroactively to persons already sentenced for a crack offense. About 5,000 persons are in federal prison serving prison terms that the Congress has concluded are disproportionate and unfair. President Obama could grant clemency in these cases across the board, essentially reducing their terms to the amount of prison time they would have received if sentenced today.

Another opportunity for categorical clemency are cases such as Weldon Angelos, which result from the “stacking” provision in federal sentencing. While criminal law and practice generally provide for harsher punishments for repeat crimes, there is little justification for stacking such offenses that occur within a short time frame, effectively part of the same crime spree.

Punishments incorporated in the 1994 federal crime bill exacerbated these problems. The highly touted “three strikes and you’re out” provision applied mandatory life without parole sentences for a third serious drug conviction. Commendably, President Obama has seen fit to reduce the sentences in a number of these cases to around 20 years. But there are more such cases in the system, and there is little public safety justification for imposing terms that are harsher than are typically applied in state homicide cases.
None of these changes would represent a “slap on the wrist” for the defendants. With respect to crack, for example, prior to the law change the average sentence for a crack cocaine offense was 9.4 years in prison, now reduced to 8 years.

Whenever there are calls for substantial numbers of prison releases there are those who raise the specter of a resulting rise in crime. But there’s real world evidence to suggest that this is not the case. California has gone through a momentous shift in its punishment structure in recent years as a result of a 2011 U.S. Supreme Court order to reduce its population by 33,000 due to unconstitutional conditions of confinement. That reduction has been achieved with no effect on violent crime, and only a modest rise in car theft. Similar evidence can be seen In New Jersey and New York since 1999. Both states have achieved more than a 25% reduction in their prison population, while outpacing the nation in crime reduction.

Sentence commutations are no substitute for the sentencing reform that is so critical in the federal system. But sentencing reform and commutation need to go hand in hand, to rectify past mistakes and to move forward in a more rational, and compassionate, direction.

Mauer is the Executive Director of The Sentencing Project. Gertner is a former U.S. District Court Judge and now a Professor at Harvard Law School. Simon is the Adrian A. Kragen Professor of Law at UC Berkeley.


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