- The Washington Times - Wednesday, April 23, 2014

Those serving jail-time on crack cocaine charges are the most obvious candidates to seek clemency or presidential pardon under six new guidelines released by the Justice Department on Wednesday. How many else may qualify because of the revised policy proposed by Attorney General Eric Holder and President Obama remains unclear, experts say.

Since the plan doesn’t just limit eligibility to low-level non-violent drug offenders, that leaves the door open for other inmates — including child pornographers, white-collar criminals, and drug offenders who were in a possession of a firearm during their offense or who have had prior felony convictions — to also apply for amnesty under the new policy.

“These guidelines were written with a sensible vagueness,” said Doug Berman, a law professor at Ohio State University. “If you have candidates who meet five out of the six criteria set forth — is that going to be good enough for them to qualify for clemency? They wrote these guidelines with a little play in the joints, because who knows who the most sympathetic cases are out there.”

In a move signaling the seriousness of the effort, Office of the Pardon Attorney head Ronald Rodgers, whose job is to oversee and vet the clemency applications, will also resign, said Deputy Attorney General James Cole Wednesday. Mr. Rodgers will be replaced by Deborah Leff, currently a top adviser to Mr. Holder on access-to-justice issues.

This shift will help change the pardon office from being one of a culture of “no” to one of “yes” on clemency petitions, said Mark Osler, a law professor at the University of St. Thomas in Minneapolis.

“The most important thing announced today isn’t the new rules, it’s the new person,” said Mr. Osler. “In areas of law where you have a lot of discretion, people are more important than rules. This will become a real change and one that lasts and changes the culture of the pardon attorney’s office.”

The clemency shift is consistent with the White House’s effort to both address the rising costs of prison overpopulation and what it sees as an unfair justice system — especially to those serving longer jail terms than they would have received today for the same offenses.

“For our criminal justice system to be effective, it needs to not only be fair, but it also must be perceived as being fair. Older, stringent punishments that are out of line with sentences imposed under today’s laws erode people’s confidence in our criminal justice system,” said Mr. Cole, who unveiled six new guidelines.

In 2010, Mr. Obama signed the Fair Sentencing Act, aimed at reducing the racial and sentencing disparities between convictions for crack cocaine — typically used by the poor and minorities — and powder cocaine — more likely used by the affluent and white population.

Thousands of drug offenders are still serving jail-time for crack convictions before the act went into effect and are the “most obvious” candidates eligible for clemency under the revised guidelines, Mr. Cole said.

As of March 29, there were 208,091 federal inmates, according to the Bureau of Prisons. Nearly half are incarcerated for drug-related crimes and the largest majority — 29 percent — are serving sentences between five to 10 years in jail. How the guidelines will be implemented will be key, analysts said.

“The department has said: Here are the guidelines we’re going to use to put forth recommendations for the president — but they’re not bound by them,” said John Malcolm, a former Justice Department lawyer who is now at the conservative Heritage Foundation. “There are a lot of fudge factors in there.”

The effort is expected to mark the largest politicized act of executive clemency since Presidents Ford and Carter offered amnesty to Vietnam War draft-dodgers.

Key House Republicans, including House Judiciary Committee Chairman Bob Goodlatte and Wisconsin Rep. James Sensenbrenner, criticized the administration for acting by what Mr. Sensenbrenner called “executive fiat” as lawmakers of both parties were trying to fashion sentencing reform.

President Obama has again demonstrated his blatant disregard for our nation’s laws and our system of checks and balances embedded in the U.S. Constitution,” said Mr. Goodlatte in a statement. “ … The Justice Department’s mission is to ‘enforce the law and defend the interests of the United States according to the law,’ not to rewrite the laws and to endanger American communities.”

However, congressional Democrats and some outside activists praised Mr. Obama’s clemency shift as long overdue.

“Too many people — particularly people of color — have been locked up for far too long for nonviolent offenses,” said Vanita Gupta, the American Civil Liberties Union deputy legal director.

Democratic Reps. Bobby Scott of Virginia and John Conyers of Michigan called the clemency plan “a matter of civil rights and basic justice.” “The Department of Justice’s decision to expand and expedite the clemency process has the potential to assist thousands of non-violent offenders serving lengthy sentences behind bars who would not be serving such lengthy terms under sentencing laws today,” they said in a joint statement.

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