This month, President Barack Obama granted executive clemency to 214 federal prisoners in one day, bringing his total number of sentence commutations since taking office to 562 men and women—more than the past nine presidents combined.
But many are wondering whether Obama has enough time left to make good on his promise to use executive clemency as a tool to undo the harsh prison sentences that resulted from the “tough on crime” era of federal drug prosecutions. With plea bargaining increasingly replacing trials, such decisions may be even rarer in the years ahead.
And that poses a double challenge to the next President: He or she may have to relax the standard of only commuting the most egregious sentences to continue using clemency in a meaningful way. More significantly, Obama’s historic use of clemency may displace energy for meaningful legislative reform that would help prevent excessive sentences in the future..
An executive grant of clemency is the most powerful “Hail Mary” pass in the criminal justice system. The president has the full power to commute—or lower after the fact—an otherwise final, binding and unchangeable federal criminal sentence. This power is the ultimate Executive- branch trump card that can erase a sentence made mandatory by Congressional legislation.
Obama specifically encouraged applications for clemency in drug cases where the defendant was subject to harsh statutory mandatory minimums, does not have a long criminal record, or a violent past, and where the defendant would be unlikely to receive the same kind of sentence today.
To date, 562 clemency applications have been granted, more than 10,000 have been denied, and thousands more are still waiting.
Given the historical rarity of using the pardon power, and the relatively few people who have been successful in receiving clemency, we can assume that these 562 people are cases that stand out as particularly unjust.
We know that executive clemency can be politically contentious because politicians have to fear the potential fallout from releasing someone who could go on to commit another crime (a la Michael Dukakis and Willie Horton). And the evidence shows that many of the 562 were subjected to significant mandatory minimum sentences for drug and gun offenses—in some cases receiving a mandatory minimum sentence of life imprisonment because of prior drug offenses—which are exactly the type of cases that President Obama indicated he wanted to target with his executive clemency powers.
There is an important similarity in the 214 cases from August 2016 where clemency was granted. An analysis of the dockets, and in some cases the appellate records of cases too old to have dockets accessible online, shows that nearly 60% of the 214 individuals who received commutations in August share the fact that they went to trial. Today, in contrast, 97% of criminal cases in the federal system result in a guilty plea.
The notion that going to trial results in a longer sentence should not be surprising: It is the fundamental premise behind plea-bargaining.
Trials are costly in terms of time, energy and resources; and they involve risk. Furthermore, cases resolved by plea agreement almost always include a provision requiring a defendant to give up appellate rights which increases finality and minimizes time spent on appeal work. So there are good reasons that prosecutors want to avoid trials.
It has always been difficult to study exactly what kind of break defendants receive for pleading guilty because plea bargaining generally occurs behind closed doors.
The federal sentencing guidelines, promulgated by the United States Sentencing Commission, implement a reduction of two points for less serious offenses, and three points for more serious offenses when calculating the advisory range of months that a federal judge must consider in determining a sentence. This point reduction generally results in a 27-28% reduction off the applicable guideline range’s sentencing recommendation for more serious offenses.
Yet the plea bargaining that takes place in actuality offers significantly more than a 27-28% reduction in a potential sentence, because a plea in a drug or gun case often involves the charging decision of the prosecutor which impacts applicable mandatory minimum sentencing laws prior to any guideline calculation ever takes place.
The magnitude of the reductions issued by Obama suggest that the penalty for going to trial can be significant.
Over half of the most recent commutations (126) were to the specific release date of December 1, 2016, which is effectively an order of immediate release after allowing the individuals four months to develop a release plan with the Bureau of Prisons. Commutations of this type imply that these individuals have already over-served a fair sentence, making it impossible to calculate what the cost of trial was in these cases through analyzing the data alone.
A large number of individuals also received commutations to the specific release dates of August 2017 (one more year of incarceration) or August 2018 (two more years of incarceration). In these cases the exact benefit a defendant received cannot be calculated without knowing when the defendant’s term of incarceration began—information that is generally not publicly available.
For the 67 prisoners with life sentences who received clemency in August, 42 will be released on December 1, 2016 or by August 2018. The other 24 received a reduction to a term of years, the exact benefit of which depends in some part on how old the defendant would have been at the time incarceration began.
But a reduction to any term of years is incredibly significant because any sentence to a term of years allows the offender to earn good time credit from the Bureau of Prisons which can go towards an earlier release date, leading to as much as another 15% reduction in an overall sentence.
A term of years may also qualify an offender to participate in the residential drug treatment program that leads to another year off of a sentence.
As of now, there are 11,477 petitions for commutation pending before President Obama.
The rates of clemency grants and denials over time suggests that it will be difficult to make a judgment on all of the remaining petitions in the remaining five months of President Obama’s term, considering that the number remaining essentially matches the number where a decision has been made over the last seven and a half years (562 grants, 10,968 denials)
Even if the current review process, involving both the office of the Pardon Attorney and the Deputy Attorney General, can be completed for the existing petitioners, the question of whether clemency is an effective or prudent mechanism for criminal justice reform remains. Each grant of clemency has untold significance for the individual petitioner and his/her family, and yet, there are more than 2.2 million people currently incarcerated in the United States, less than 10% of which are federal prisoners that the clemency power can touch. Of the federal inmates, a little less than half are incarcerated based on drug offenses.
Obama’s stated criteria for clemency focus on inmates without any history for violence or lengthy criminal histories, which likely eliminates a significant but unknown number of individuals from consideration. Further, even if Obama granted every remaining petition before leaving office, it would barely exceed the number of prisoners (approximately 10,000) who are already released from America’s state and federal prisons and jail after completing their sentences every single week.
Obama’s administration will either resolve an astonishing number of petitions in just a few short months, or it will pass on a number of petitions to the next administration, having removed the most obvious candidates – often those who went to trial – from that stack.
The next president would then have to relax the standard for granting clemency around the same time that data on how well the individuals commuted by President Obama have succeeded post-release starts becoming available. Past recidivism research suggests than at least 60% of released prisoners were arrested again within just a few years.
The next president would have to be particularly impervious to political pressure to continue exercising clemency if the rates of recidivism for those commuted by President Obama are anything close to that number.
Lisa Lorish is an Assistant Federal Public Defender in the Western District of Virginia and a 2008 graduate of the University of Virginia School of Law. She welcomes comments from readers.