It’s Time to Fix the Federal Clemency Process

When Congress changed the law during the Obama Administration to reduce the disparity between crack and powder cocaine, it was not made retroactive. Obama used his power of clemency. To commute the sentences of thousands of people who would have received relief if the change had applied to them. But he didn't help all of them.

The First Step Act takes yet another step away from some of the heavy-handed drug laws. The Act eliminates the mandatory life sentence for third-strike drug offenses, and reduces the second-strike mandatory minimum from 20 years to 15 years.

The problem is, once again, that the changes to the law were not made retroactive. This means thousands of people already sentenced and in prison will remain there under laws that Congress has found to be excessive.

In order to see that the more than 3,000 people serving mandatory sentences receive justice and equitable treatment under the law, experts argue that the President should institute another round of executive clemency. The problem, according to a recent article in "The Atlantic " , is that the two possible methods (formal and informal) don't work very well.

The informal method requires the President to evaluate each case individually. This doesn't allow the President to commute the large numbers of people who deserve relief.

The formal method has its own problems. Each application must run through seven levels of review. Much of this process takes place within a hostile Department of Justice. Prosecutors are resistant to undoing the harsh penalties they fought so hard to get in the first place, and the DOJ is on record as opposing the First Step Act for lowering the mandatory sentences that have given them so much bargaining power.

Some states, such as Arkansas, Connecticut, Georgia and South Carolina have better clemency systems in place. They use a board of experts to evaluate cases, with the best boards utilizing experts in social work, psychology and criminal justice. They include a mix of judges, lawyers, prosecutors and activists, all of whom believe in a balance of justice and mercy.

If a clemency board were to be established at the federal level, it wouldn't be the first time. President Ford impaneled a diverse and bipartisan board to sort through the massive number of pardon requests. from those charged with avoiding the Vietnam War draft.  Ultimately, that 18-member board recommended more than 13,000 pardons.

Undoubtedly, many whose sentences are commuted will serve their communities ably, and will successfully integrate back into society. But in order to prevent the risk of a Willie Horton-type incident that sours the public on the process, it will be important to document the successes.

But first, we need to make sure the First Step Act is not the last step.

Federal clemency Attorney

The attorneys and staff at the Law Offices of Brandon Sample are eager to help you understand the federal clemency process and advocate for your interests regarding federal post-conviction relief. Contact us today to determine if you have compelling grounds for early release.

Src: "Trump Can Fix the Clemency Process." Rachel Barkow, Mark Holden, Mark Osler, 1/15/19

About Brandon Sample

Brandon Sample is an attorney, author, and criminal justice reform activist. Brandon’s law practice is focused on federal criminal defense, federal appeals, federal post-conviction relief, federal civil rights litigation, federal administrative law, and the Freedom of Information Act (FOIA).

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