Clemency: Big Changes at the U.S. Pardon Attorney’s Office?


For many years, across presidents and political parties, the Office of the Pardon Attorney has been criticized for offering too little mercy. Presidential pardons (forgiving crimes, as if they did not happen) and commutation (forgiving sentences, while leaving convictions in place) happened almost as frequently for holiday turkeys as for human beings.

From federal judges to the United States Sentencing Commission, criminal justice experts have long expressed concerns about federal sentences being too long, and prisons being too crowded. Finally, for the better part of the past year now, even Attorney General Eric Holder (and to a lesser degree, President Obama) have recognized how overcrowded our federal prisons are, and how we need to reduce that overcrowding before our prison budget consumes the Justice Department’s entire budget. See the Smart on Crime Initiative. (That money, not humanity, drove this realization is a complaint for a different day)

This week, after several days of teases and speeches, the Justice Department announced that it would prioritize clemency petitions for inmates who meet six criteria:

* They are currently serving a federal sentence in prison and, by operation of law, likely would have received a substantially lower sentence if convicted of the same offense(s) today;

* They are non-violent, low-level offenders without significant ties to large scale criminal organizations, gangs or cartels;

* They have served at least 10 years of their prison sentence;

* They do not have a significant criminal history;

* They have demonstrated good conduct in prison; and

* They have no history of violence prior to or during their current term of imprisonment.

Now, these guidelines are about clemency – including forgiving part of the sentence, and not just pardons (forgiving crimes altogether). Moreover, so far this is still just talk from the Justice Department. After decades of extremely low clemency activity that, it would seem, favored Caucasian inmates, we must wait to see if this new priority will become more than just more lip service.

We might know quickly – there will be thousands of new petitions filed in quick order, with help from Clemency Project 2014. As a side note, the National Association of Criminal Defense Lawyers (NACDL), among other groups, are looking for volunteer lawyers to help process the expected onslaught of petitions.

More importantly, along with these new clemency criteria, the Justice Department announced that Ronald Rogers had stepped down as Pardon Attorney, to be replaced by Deborah Leff. Ms. Leff was previously Acting Senior Counselor for Access to Justice, at the US Department of Justice, but she is no career prosecutor. Her official biography at least suggests an interest in public welfare, rather than simply protecting Justice Department status quo.

Ever an optimist, I have hope that Ms. Leff’s appointment and the new clemency guidelines herald a seachange in how the Office of Pardon Attorney does business – that it will actually start doing the business of offering as much consideration to human pardon petitions, as the White House offers to Thanksgiving turkeys.