President Barack Obama is seven-for-seven in pardoning turkeys but his clemency initiative is still backed up. That needs to change. As it stands now, executive clemency is not a viable way to cure the injustice caused by outdated sentencing laws or reduce prison populations.
While I was never a federal prisoner eligible for clemency, I always eyed the entire process with skepticism. Clemency teases every prisoner as an attainable remedy to incarceration when, as practical matter, it's a penal miracle.
In fact, clemency is so rare that no one really understands it. Clemency is actually two options: a pardon or commutation. A pardon can be granted only after a sentence is completed and is "executive forgiveness" of the crime that expunges someone's record. Commutation neither forgives the crime nor wipes clean the person's record but it is an "executive reduction in penalty," meaning the person is released early from custody. Commutation is nothing but a sentence reduction.
The only way that commutations can make a dent in our nation's overstuffed prisons is to speed up the process. And the only way to do that is to shift these bids for reduced sentences to the judicial branch and out of the President's office.
As of November 5, 2015, 2,128 requests for pardons had been received during the Obama presidency along with 18,448 applications for commutations from prisoners. Only 64 pardon applications had been granted, along with 89 commutations.
Since 1629 pardon petitions and 7378 commutation bids have been denied, that leaves 435 pardons and 10,981 commutations to be decided. Despite this backlog, Department of Justice pardon attorneys asked for even more work when they prodded lawyers to file their clients' clemency applications quickly so that Obama, even as a lame duck, can act on them around the time he pardons his last turkey.
Using the rate of approval that Obama has already established for pardons and commutations combined - 153 out of 20,576 or seven tenths of one percent - the most that Obama can expect to spring from federal custody is another 80 people and that's if he decides all pending applications before he leaves office. This is unlikely, as the same people who were advising lawyers to submit clemency applications early and often have requested a budget increase for fiscal year 2016 because they anticipate - and have encouraged - a workload increase.
The reason why this backlog is an injustice is that, waiting in the queue are prisoners who were most likely harmed by the unyielding mandatory minimum sentencing guidelines of years ago, laws we now know are counterproductive and expensive. People who became eligible for commutations in April 2014 under Obama's Clemency Initiative are federal inmates who most likely would have been sentenced to less time if they were sentenced today.
The good news is that we have an escape valve in U.S. Sentencing Commission - an independent agency that sets sentencing policies for federal crimes. A small change in policy from the Sentencing Commission can produce big results in a short time. Last year the Sentencing Commission reduced the potential punishment for future drug offenders and made that change retroactive, a move that opened the channels for the 6000-count flock of jailbirds that was let out in the largest one-time prisoner release earlier this month.
The qualifications for executive commutation, under the Clemency Initiative, are the same as the qualifications for a judicial reduction in sentence. This recent release proved that our federal district courts can process a large number of requests for reduction in sentences much more quickly than the Office of the United States Pardon Attorney. Mark Osler, a professor at the University of St. Thomas in Minneapolis, told USA Today in May: "... those reductions [from the courts] are close to what they would get with clemency... it's a logical choice that they would go that route (through the courts)" because it's more efficient.
But prisoners with commutation applications pending cannot use federal courts to achieve the same result without another policy change by the Sentencing Commission. If the Sentencing Commission were to establish a policy whereby pending commutation applications could be decided by judges - they are currently not allowed to do so unless specifically authorized - the Clemency Initiative's goal could be achieved and the executive backlog would diminish quickly.
The Commission wasn't chicken about making this type of move before. By doing it again, we could choose between allowing one president, along with his staff, to try to decide over 10,000 applications and fail or utilizing our 2758 federal judges who can each decide four sentence reduction applications (assuming even distribution over districts) as part of his or her normal duties.
Clemency is an act of grace, consideration freely given and potentially undeserved. However, when injustice is involved as it is with people sentenced under old, draconian drug laws, grace comes too slowly remedy the situation. Only swift action can do that, and we will never see that progress unless the U.S. Sentencing Commission allows judges to reduce sentences in place of executive commutation.