Former President Barack Obama has been widely commended for granting a record 1,927 applications for clemency during his two terms in office from January 20, 2009 through January 19, 2017, consisting of 1,715 commutations and 212 pardons. Those figures are higher than the clemencies granted by the previous six presidents combined.
The record number of clemency applications granted by Obama, in part to address draconian federal prison sentences – including commutations for 568 prisoners serving life sentences – will perhaps be the most enduring part of his presidential legacy.
To say the announcement of Obama’s clemency initiative created excitement among the federal prison population would be an understatement. Prisoners who met the required guidelines, including having served at least ten years for non-violent offenses, submitted tens of thousands of applications. For the first time, federal prisoners could apply for commutations using the Bureau of Prisons’ computer system.
Of the 33,149 commutation and 3,395 pardon applications received during Obama’s two terms in office, 18,749 and 506 were denied, respectively, according to the U.S. Department of Justice. Over 4,750 more applications were closed without presidential action. Thus, in addition to granting a record number of clemencies, Obama also denied a record number. One federal prisoner rejected a grant of commutation. [See: PLN, Nov. 2016, p.32].
It has been argued that Obama was a transformational leader who ran on the slogan of “hope and change.” However, while many prisoners had hope their clemency applications would be granted, relatively few received a change in their prison sentences. With the other demands of the presidency, it was never realistic for clemency applicants to expect that Obama would examine each individual petition. As noted by the Washington Post, the president “sees (at most) the advice of the Justice Department’s Office of the Pardon Attorney and then the White House counsel. The pardons office also often seeks input from the prosecutor’s office that led the initial trials.”
The Office of the Pardon Attorney has been plagued with problems in recent years, including the 2008 removal of Pardon Attorney Roger Adams, who reportedly mismanaged his office and made a racist comment about a clemency applicant. [See: PLN, Nov. 2008, p.31]. In 2014, Pardon Attorney Ronald L. Rogers was replaced after he withheld information in a high-profile clemency case. [See: PLN, May 2016, p.46]. And most recently, Pardon Attorney Deborah Leff resigned in January 2016, citing a lack of support and resources from the Department of Justice to “make timely and thoughtful” clemency recommendations to the president.
Many of the hundreds of volunteer attorneys and paralegals who worked on the clemency applications submitted by hopeful prisoners were highly critical of the process itself, calling it slow and cumbersome, as well as highly arbitrary. Mark Osler, a law professor at St. Olaf College in Minnesota and a former federal prosecutor, said the fact that Obama’s clemency initiative was “embedded” in the Department of Justice, “a building full of prosecutors,” was an impediment to the prompt processing of a large number of applications for commutations and pardons.
“It’s not like everyone sits down and decides together. It’s a bunch of different people in different offices, they all have different perspectives. Even a minor failure at any of those steps and everything grinds to a halt,” he stated.
No individual did more to help prisoners obtain clemency than Rachel Barkow, a law professor at the New York University School of Law. Ninety-six of the applications that she and her law students filed were granted – almost 5 percent of the total. “I would say the president in particular had noble intentions ... [but] the actual administration and delivery ... really did become a mess,” she said.
The slow pace of the clemency process frustrated prisoners’ advocates; during his first four-year term, President Obama granted just 22 commutations and one pardon. [See: PLN, May 2016, p.46]. The vast majority of clemency grants occurred in 2016 and 2017, shortly before he left office.
“It was doomed to be this last-minute rush,” Barkow observed. “I read a statistic that 89 percent of the grants came in the last 10 months. That’s no way to run a clemency program. It starts to look like a last-minute lottery.”
Complicating matters, highly-respected Pardon Attorney Deborah Leff resigned in March 2016, citing her frustration with the slow pace of approvals and lack of access to the White House counsel’s office – the final stop for clemency applications. At that time she said, “the requests of thousands of petitioners seeking justice will lie unheard. This is inconsistent with the mission and values to which I have dedicated my life, and inconsistent with what I believe the department should represent.”
To his credit, President Obama met the challenge presented by Leff’s resignation and redoubled his efforts. He recognized that some federal prisoners serving long mandatory minimum sentences for drug crimes, including life for non-violent offenses, deserved a chance to reunite with their families.
One of those prisoners was Corey Jacobs from New York City, who was sentenced to life in prison for his first felony conviction on a drug charge. According to his attorney, “Corey has more than paid his debt to society by serving over 17 years of a life-without-parole sentence as a nonviolent drug offender. Life in prison without the possibility of parole screams that a person is beyond hope, beyond redemption. And in Corey’s case, it is a punishment that absolutely did not fit the crime. The president’s mercy and belief in redemption literally saved Corey’s life.”
Unlike previous presidents, the commutations issued by Obama often did not provide for immediate release but rather reduced a prison term to the time an applicant would have received if sentenced under current federal sentencing guidelines. In many such cases, the terms of release included a requirement that the recipient first complete a substance abuse treatment program.
Some grants of clemency were puzzling. One applicant, 53-year-old David Barren, who was serving life plus twenty years, had his sentence commuted to 30 years. This means that Barren, who had already served over eight years for a drug conspiracy, will be in his early 70s before he gets out. Although grateful for the commutation, he reportedly told his fiancé, “Baby, I’m going to die in here.”
Opposition to President Obama’s clemency initiative came from prosecutors and some Republican lawmakers, such as Senator Tom Cotton. For his part, Senator Cotton accused Obama of releasing “violent criminals,” choosing to overlook the lengthy review process that occurred before applications were granted, or the fact that very few prisoners convicted of violent offenses were freed.
Several of Obama’s clemency decisions were not without controversy. Shortly before leaving office, he commuted the death sentences of federal prisoner Abelardo Arboleda Ortiz and military prisoner Dwight Loving. Ortiz’s lawyers noted their client was intellectually disabled and had been denied effective assistance of counsel at trial; they also claimed he was innocent. Loving’s attorneys also cited ineffective assistance of counsel and raised claims of racial and gender bias in the selection of his court-martial panel. Ortiz and Loving’s death sentences were reduced to life without parole.
Additionally, Obama commuted the 70-year sentence of Oscar López Rivera, 74, a Puerto Rican political prisoner who had assisted in bombings, robberies and prison escapes in the 1970s and early 1980s in an effort to secure independence for Puerto Rico; he was a leader of FALN, a nationalist revolutionary organization.
Also highly controversial was Obama’s grant of commutation to Chelsea Manning, a former military intelligence officer who was convicted of leaking classified information and sentenced to 35 years. Included in the leak was a 2007 video that showed U.S. military forces shooting a dozen civilians in Iraq, including two Reuters news service employees. Manning, who had already served seven years in military prison, had gone on hunger strikes and attempted suicide on at least two occasions. Both Manning and Ortiz are scheduled to be released in May 2017.
Other well-known federal prisoners who sought clemency were disappointed. Former Illinois Governor Rod Blagogevich was denied a commutation, as was long-serving Native American political prisoner Leonard Peltier, convicted of killing two federal law enforcement agents on a South Dakota reservation in 1977. Of course thousands of other, lesser-known federal prisoners were also disappointed after their clemency applications were denied or remained pending when Obama left office.
Unfortunately, a grant of commutation did not work to the benefit of everyone who received one. Federal prisoner Demarlon C. Thomas, a former gang member who had his 19-year sentence commuted, was in a federal halfway house in Michigan when he was shot to death on January 23, 2017 by two masked gunmen who entered the facility. No other residents were injured, and police had no suspects in Thomas’ murder.
Another commutation recipient, Robert Martinez-Gil, 68, had been serving a life sentence on drug charges. Released in 2015, he was arrested in Texas in February 2017 after being found with two pounds of cocaine while still on supervised release. Having squandered his second chance, he will now likely spend the rest of his life in prison.
“I’m so disappointed to hear that he got arrested again,” said Ronald Schmidt, an attorney who had represented Martinez-Gil. “We all have free will, and apparently, he made a bad decision again and he’s going to have to suffer the consequences again. That’s unfortunate.”
It is unknown what approach President Donald Trump will take with respect to clemency applications.
Sources: www.cnn.com, www.washingtonpost.com, www.truth-out.org, www.reuters.com, www.usatoday.com, www.law.com, www.deathpenaltyinfo.org, www.csmonitor.com, www.theroot.com, www.foxnews.com, www.star-telegram.com, www.justice.gov, Chicago Tribune
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