By Kelly Riddell and Ben Wolfgang
The U.S. Department of Justice plans to advise President Obama to widen his guidelines for clemency.
WASHINGTON D.C. – In a move that could result in the prison release of hundreds or thousands of low-level drug offenders, the Justice Department said Monday that it will advise President Obama to widen his guidelines for granting clemency.
The announcement, immediately praised by advocates for reform of the criminal justice system, is part of the administration’s effort to reduce the nation’s prison population and address racial disparities in drug sentencing.
It remains unclear how effective the approach will be and whether the president is prepared to move forward on what may be an unprecedented wave of pardons and commutations.
“Nobody knows the scope and depth yet. I applaud the spirit, and I applaud what I think is going to happen. But I just don’t know. There are thousands of cases ripe for action. … We don’t know if we’re talking about a couple dozen, a couple hundred, or a couple thousand,” said former Maryland Gov. Robert L. Ehrlich Jr., a Republican and leading advocate for criminal justice reform and changes to how nonviolent drug offenders are punished.
Before the announcement Monday, the administration’s record on clemency was widely criticized. A deputy legal director with the American Civil Liberties Union told Yahoo News that the record is “abysmal.”
More than five years into his tenure, Mr. Obama is on pace to grant far fewer pardons and commutations than his recent predecessors, despite the White House’s stated position that drug sentencing is frequently unfair and often handed down under a system compromised by ingrained racial bias.
Mr. Obama has granted 52 pardons and nine commutations. President George W. Bush gave 189 pardons and 11 commutations during his eight years in office. President Clinton issued 189 pardons and 61 commutations.
But the administration has shown signs that it is prepared to do more, especially for nonviolent drug offenders serving lengthy sentences.
In December, Mr. Obama commuted the sentences of eight men and women serving considerable prison terms for convictions related to crack cocaine.
They were convicted and sentenced before the president signed into law the Fair Sentencing Act of 2010, designed to reduce racial disparities in cocaine-related prison sentences.
Before the act, the law treated 1 gram of crack cocaine as the equivalent of 100 grams of powder cocaine. That standard led to an increased number of black inmates compared with white because crack cocaine users tend to be poor or black, and powder cocaine users are more often upper-class or white.
Those sentenced before the act went into effect have little recourse other than to seek clemency from the president.
The U.S. Sentencing Commission this month adopted a recommendation to reduce prison terms for certain nonviolent drug offenders. Attorney General Eric H. Holder Jr. has lobbied heavily for such action.
Deputy Attorney General James Cole will release the new clemency guidelines this week. In January, he appealed to state bar associations to help identify low-level, nonviolent drug offenders who may be candidates for clemency.
Mr. Holder is expecting an onslaught of requests from offenders and the need for dozens of additional lawyers to review their cases.
“Once these reforms go into effect, we expect to receive thousands of additional applications for clemency,” he said. “There are still too many people in federal prison who were sentenced under the old regime — and who, as a result, will have to spend far more time in prison than they would if sentenced today for exactly the same crime.”
The guidelines could revamp how business is conducted inside the office of the Justice Department’s pardon attorney, said Mary Price, general counsel with Families Against Mandatory Minimums, a nonprofit organization advocating changes to sentencing laws.
When it comes to clemency, Ms. Price said, the pardon attorney’s office must evolve “from its culture of ‘no’ to a culture of ‘yes,’ or at least ‘maybe.’”
“It’s terrific that the administration is taking a serious look at the clemency power, using it to do some justice in individual cases where our sentencing laws have produced unjust results,” she said. “You see voices from the left and the right coming together to support these initiatives.”
Indeed, many Democrats and Republicans such as Mr. Ehrlich support large-scale changes in drug sentencing and clemency for some incarcerated offenders.
The reason it’s taken so long for the issue to get the attention it deserves is a lack of public pressure on elected leaders, said Mark Osler, a law professor at the University of St. Thomas Law School and a former federal prosecutor.
“We haven’t asked the right questions. … We have to really hold their feet to the fire on this,” he said.