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Will Hopes Raised by Clemency Initiative Pronouncements be Realized?

by Derek Gilna

In December of 2013, President Obama created a wave of excitement in the incarcerated community when he announced the commutation or pardon of 21 federal prisoners, bringing his first-term total to 52, plus 10 clemencies, and made clear his intention to change how sentence relief was granted by the United States Justice Department.

In early 2014, Attorney General Holder announced an initiative to accumulate thousands of clemency applications from federal prisoners. However, many observers question whether the results of that program will match the benefits promised in the initial press releases. Recent reports cast doubt that the program will achieve its stated goals.

These laudable developments followed a wave of criticism from prisoner-rights advocates decrying the record-low number of pardons in Obama’s first term in office.  The President issued a low number of pardons and commutations in his first four years. George W. Bush also issued few pardons in his first term, 30, compared to, the 56 of William Clinton, the 77 of George H.W. Bush, and the 250 of Ronald Reagan in their first terms.

Obama, referring to those he pardoned, said, “If they had been sentenced under … current law, many of them would have already served their time and paid their debt to society.  Instead, because of a disparity in the law that is now recognized as unjust, they remain in prison, separated from their families and their communities, at a cost of millions of taxpayer dollars each year.” The President also noted, “In several cases, the sentencing judges expressed frustration that the law at the time did not allow them to issue punishments that more appropriately fit the crime.”

In an era where almost no government official publicly opposes sentence reform, one would think that pardons would be a way for Presidents and Governors to show compassion while cutting the bloated prison population.  However, despite the recognized fact that prisoner counts are too high, and both Congress and state legislators are looking for ways to reduce their corrections budgets, there has been a notable lack of action on the pardons, commutations, and clemency in many jurisdictions.

An example of the minimalist approach to executive compassion is the State of New York, where Governor Cuomo has issued only three pardons and no clemencies as of June, 2014.  It’s not because the issue hasn’t been brought to his attention, according to Anthony Papa, spokesman for the Drug Policy Alliance, whose goal is to reduce sentences for drug offenses.  “Every year, I ask him to use his power of executive clemency.  He has not used any yet,” Papa said.

Other New York observers feel that Cuomo, a Democrat, fears the “Willie Horton Syndrome,” referring to the individual furloughed by then governor Dukakis in Massachusetts, who then committed a murder, possibly costing Dukakis the Presidency. Jim Murphy, former jail chaplain and Capital Region prison-reform activist, said, “The Democrats have been scared.  They are more vulnerable to the tough-on-crime talk.”

Cuomo’s predecessors in New York, however, have all granted pardons or commutations: Eliot Spitzer, one; David Paterson, three; George Pataki, 32; Mario Cuomo, 37; and Hugh Carey, 155.

Cuomo’s fellow Democratic governor, Jerry Brown of California, in late 2013, issued 127 pardons, mostly for drug crimes.  This followed the 128 pardons that he issued in 2012, and the 21 he issued in 2011.  Governors in other states have also been stingy with exercising their pardon power.

However, it is executive sentence relief on the federal level that will have the greatest effect on the sentence relief landscape.  With over 220,000 in custody and thousands more in pretrial detention, as well as tens of thousands in immigration detention, the federal government is well-positioned to send a message to the public that compassion is as important to the American justice system as arrest and conviction.  Although recent developments are encouraging, many remain skeptical that the reforms will be administered in the same fashion as their well-publicized goals, and self-congratulatory press releases.

Studies by not only the non-partisan Pew group, but also the Department of Justice have shown that for recidivism to be reduced, institutional rehabilitation must be as important to the Bureau of Prison’s Mission Statement as the “confinement of individuals pursuant to judicial order,” to paraphrase the message the BOP publicizes at its institutions and on its website. However, success cannot be measured merely by making sure that their prisoners do not escape; if prisoners are not given sufficient education, counseling, and drug and alcohol treatment to succeed after their release date by the BOP, that institution has failed the American public.

Unfortunately, there is legitimate reason for concern that the federal government in general, and the Bureau of Prisons in particular, severely challenged organizationally by the admittedly daunting task of preparing prisoners who will be granted sentence reductions under the retroactive sentencing guidelines, will not be up to the task.   The fact remains that the BOP, constantly under criticism for mismanagement by Congress and the General Accounting Office, is probably not up to the task. A look at previous BOP attempts at reform is not been encouraging.

The Second Chance Act led prisoners (and the public) to believe that 12 months of halfway house would be extended to releasing prisoners to help them reintegrate into society.  It never happened.  There are too few halfway houses and too few beds, facts the BOP knew before the Act was passed.  Most second Chance funds have gone to law enforcement agencies. Compassionate Release was another highly-publicized program, whose results have been almost nil.  The reason is that the BOP has not trained its personnel in how to accept and process applicants for these programs.  Therefore, there is reason for skepticism that the new Clemency Initiative will be any different.  For this and other sentence relief programs to succeed, the BOP must change its mindset to embrace rehabilitation, as well as provide its staff the training necessary to properly implement President Obama’s salutary attempts at prison reform.

There are disturbing signs that the federal government might be going down the same path with its Clemency Initiative.  Many large law firms, who maintain a large pro-bono presence, but who generally have little experience in the nitty-gritty of federal criminal defense, have embraced the project, but there has been limited buy-in from Federal Public Defenders, who have a limited budget, a shrinking staff, and little time for new projects.  Yet it is these hard-working advocates of indigent criminal defendants who have the most familiarity with the sentencing guidelines, drug crimes, prisons, and all of the other myriad details that comprise the federal criminal justice system. Time will tell if the Justice Department and the President will take the steps necessary to get the Federal Public Defenders involved in the project, and whether sufficient resources will be devoted to the initiative to make it a success.