Commutation of Sentence: The Window Opens!

My phone is ringing off the hook, as families of federal inmates rush to take advantage of what will be a brief opening of the window to reduce sentences of non-violent offenders.

commutation of sentence

Commutation of Sentence: The time to act is now!

That’s right. There’s a new “Get Out of Jail” card issued by the Obama Administration, but it may last only as long as the current Presidency…about 20 months. So far, here’s what has happened:

Commutation of Sentence: The First Opening

Last December, President Obama commuted the lengthy sentences of eight federal inmates charged with various drug offenses involving cocaine and methamphetamines.

Earlier this week, Attorney General Eric Holder announced that the Obama Administration was about to dramatically expand executive clemency for convicted drug offenders. This means the commutation of sentence for hundreds or even thousands of federal inmates:

“The White House has indicated it wants to consider additional clemency applications, to restore a degree of justice, fairness, and proportionality for deserving individuals who do not pose a threat to public safety,” the Attorney General said. “The Justice Department is committed to recommending as many qualified applicants as possible for reduced sentences.”

commutations of sentence

Attorney General Eric Holder invites petitions for commutation of sentence

D.O.J Seeks Commutation of Sentence Petitions

To that end, yesterday, the Administration replaced the “Pardon Attorney” who had been seen as a roadblock to more liberal clemency. (A Department of Justice official, the Pardon Attorney receives all petitions for commutation of sentence and advises the President whether to grant or deny). No surprise here: Richard L. Rodgers, the outgoing Pardon Attorney, is a former major drug crimes prosecutor. The new Pardon Attorney, Deborah Leff, is a senior Justice Department attorney who has devoted her career to championing fair sentencing rights. This is VERY GOOD NEWS for federal inmates, imprisoned for non-violent offenses, particularly drug crimes.

Here are the traditional federal standards for granting commutation of sentence:

1. Disparity or undue severity of sentence.

2. Critical illness or old age.

3. Meritorious service to the government.

The Obama Administration seems to be emphasizing the first standard and even laying down a new, unwritten rule. “Non-violent drug offenders ought not be sentenced to lengthy prison terms, and when they are, we will open the jailhouse door.”

What else can we make of the President commuting those eight inmates last December and the Attorney General inviting as many qualified applicants as possible to apply for a reduction of their sentences? The message is clear.

Just look at those commutation of sentence grants in December. Charged with various drug offenses – mostly possession with intent to distribute – one defendant was sentenced to 20 years in prison, another 24 years, and several received life imprisonment. Thanks to the President’s commutation of sentence orders, all were scheduled to be released last week.

There is no automatic right to early release.  However, under new Justice Department guidelines announced earlier this week, commutation of sentence will be favored for federal inmates who:

  • are serving a sentence that, if imposed today, would be substantially shorter;
  • have a non-violent history with no significant ties to organized crime, gangs or cartels;
  • have served at least 10 years;
  • have no significant prior convictions;
  • and have demonstrated good conduct.

A petition for clemency will not necessarily be denied if the inmate fails to meet all the criteria. For example, someone who has served less than 10 years might still have an excellent chance if he or she fulfills the other criteria.  Contrast this with earlier times. Remember those eight inmates whose sentences President Obama commuted last December.  In his previous five years in office, he had commuted only one other sentence. Overall, since becoming President, he has granted only nine out of 10,490 commutation of sentence petitions.  That is about to change in a big way.

The power to grant executive clemency comes from the U.S. Constitution. Presidents have exercised that power since George Washington pardoned participants of the “Whiskey Rebellion.”

Of course, the Obama Administration will end in January 2016. There is no guarantee that the next President – whether Democrat or Republican – will continue this new, more liberal policy. The Office of the Pardon Attorney soon will be flooded with clemency requests. For inmates who seek a commutation of sentence, the time to act is now!

Marcia Silvers

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