Christopher Zoukis's Blog - Posts Tagged "obama"
A reason for hope?
As we highlighted on the prison law blog last week, President Barack Obama’s recent comments on the need for a dramatic overhaul of the American prison system has ignited dialogue on reform. There has been almost universal acknowledgement from analysts and activists alike that we are on the precipice of something big.
His speech seems to have done what few politicians have been able to do in decades: unite both Republicans and Democrats. Across the floor, our elected officials are recognizing that the system is broken, and maybe there’s real momentum building for change. It’s a rare thing in our political system, and one that merits pausing a moment to acknowledge before continuing the fight.
His speech seems to have done what few politicians have been able to do in decades: unite both Republicans and Democrats. Across the floor, our elected officials are recognizing that the system is broken, and maybe there’s real momentum building for change. It’s a rare thing in our political system, and one that merits pausing a moment to acknowledge before continuing the fight.
Private prisons do matter for #BlackLivesMatter
While Barack Obama has placed prison reform front and center on the policy agenda this year, those seeking the office are broaching a critical element of the debate that has yet to be discussed federally: private prisons. It’s become a hot button issue in the last couple months as it was revealed that Hillary Clinton’s campaign accepted donations from private prisons, and Bernie Sanders pledged to ban them altogether.
I response to that, Vox author Dara Lind penned an article suggesting that Black Lives Matter campaigners focus less time and energy on ending private prisons. While by no means should it be the only locus for critique (and of course they shouldn’t “settle” for those promises, but is anyone actually suggesting they would??), the prison-industrial complex is a linchpin in a broken system, and to suggest otherwise is to vastly underestimate the role such companies play in perpetuating it.
Lind and her colleague may be right that private prisons did not necessarily cause the initial levels of mass incarceration that have led to prison over-population and detention levels beyond those anywhere else in the world. But private prisons most certainly have played a role in maintaining those levels and through lobbying efforts and policy, and I beg to disagree, but they most certainly have played a role in perpetuating it.
I certainly agree that one of the most immediate impacts of ending private prisons would be on immigrant detainees, especially given the almost ludicrous minimum quota systems in place at many facilities. And yes, in the grand scheme of things, the $133,000 donated by private prison companies to the Hilary Clinton campaign may seem like small potatoes. But over the last two decades or so, we’re talking about tens of millions being donated directly to political campaigns and to lobbying efforts. Campaign funding is just the tip of the influence iceberg.
Because it’s important to look closely at the lobbying efforts of these organizations at the local and state levels—focusing on presidential campaign funding will simply not give you a clear picture of the kind of influence these companies have on the ground. When you start looking at their operations and efforts in places like California and Arizona, you see how many lives are really being affected. Because the individuals being targeted by the kinds of policies private prisons are lobbying for are precisely the reason why the Black Lives Matter campaign exists.
It’s fine to show a graph that shows that incarceration rates were already on the rise prior to privatization of state prisons, but to draw the conclusion that they still represent only a symptom is to be viewing the situation with blinders on, removing all context and experience from an issue that necessitates the inclusion of precisely those elements.
It’s frustrating to see people with a platform such a platform so dramatically misrepresent what the role of the prison-industrial complex has been in perpetuating cycles of poverty and recidivism. It’s especially frustrating to see someone citing crime rates as a justifiable rationale for excessively punitive policies. Even though the author concedes mass incarceration was not the appropriate response, she fails to recognize that crime rates are rarely indicative of the actual levels of crime; any beginner criminology course will teach you crime rates are strictly representative of police activities in any given jurisdiction. Further, that police activity is contingent on legislative changes which either increase or decrease the criminalization of particular activities—like drug possession—precisely the kinds of legislation private companies have been playing a direct role in influencing. When you attempt to analyze policies without recognizing such crucial context, you are leaving key elements out of your analysis; the conclusions will necessarily be flawed.
It is simply not in the interest of private prison companies to advocate for the kind of prison reform that is needed in this country. Why would they directly advocate themselves out of existence? The prison-industrial complex went beyond simply being a symptom of the problem to a causal entity the moment they began advocating for continued mandatory minimums and for increased immigrant detainees, when they began actively gouging the families of inmates into bankruptcy through exploitive practices and undermining prison education efforts.
I response to that, Vox author Dara Lind penned an article suggesting that Black Lives Matter campaigners focus less time and energy on ending private prisons. While by no means should it be the only locus for critique (and of course they shouldn’t “settle” for those promises, but is anyone actually suggesting they would??), the prison-industrial complex is a linchpin in a broken system, and to suggest otherwise is to vastly underestimate the role such companies play in perpetuating it.
Lind and her colleague may be right that private prisons did not necessarily cause the initial levels of mass incarceration that have led to prison over-population and detention levels beyond those anywhere else in the world. But private prisons most certainly have played a role in maintaining those levels and through lobbying efforts and policy, and I beg to disagree, but they most certainly have played a role in perpetuating it.
I certainly agree that one of the most immediate impacts of ending private prisons would be on immigrant detainees, especially given the almost ludicrous minimum quota systems in place at many facilities. And yes, in the grand scheme of things, the $133,000 donated by private prison companies to the Hilary Clinton campaign may seem like small potatoes. But over the last two decades or so, we’re talking about tens of millions being donated directly to political campaigns and to lobbying efforts. Campaign funding is just the tip of the influence iceberg.
Because it’s important to look closely at the lobbying efforts of these organizations at the local and state levels—focusing on presidential campaign funding will simply not give you a clear picture of the kind of influence these companies have on the ground. When you start looking at their operations and efforts in places like California and Arizona, you see how many lives are really being affected. Because the individuals being targeted by the kinds of policies private prisons are lobbying for are precisely the reason why the Black Lives Matter campaign exists.
It’s fine to show a graph that shows that incarceration rates were already on the rise prior to privatization of state prisons, but to draw the conclusion that they still represent only a symptom is to be viewing the situation with blinders on, removing all context and experience from an issue that necessitates the inclusion of precisely those elements.
It’s frustrating to see people with a platform such a platform so dramatically misrepresent what the role of the prison-industrial complex has been in perpetuating cycles of poverty and recidivism. It’s especially frustrating to see someone citing crime rates as a justifiable rationale for excessively punitive policies. Even though the author concedes mass incarceration was not the appropriate response, she fails to recognize that crime rates are rarely indicative of the actual levels of crime; any beginner criminology course will teach you crime rates are strictly representative of police activities in any given jurisdiction. Further, that police activity is contingent on legislative changes which either increase or decrease the criminalization of particular activities—like drug possession—precisely the kinds of legislation private companies have been playing a direct role in influencing. When you attempt to analyze policies without recognizing such crucial context, you are leaving key elements out of your analysis; the conclusions will necessarily be flawed.
It is simply not in the interest of private prison companies to advocate for the kind of prison reform that is needed in this country. Why would they directly advocate themselves out of existence? The prison-industrial complex went beyond simply being a symptom of the problem to a causal entity the moment they began advocating for continued mandatory minimums and for increased immigrant detainees, when they began actively gouging the families of inmates into bankruptcy through exploitive practices and undermining prison education efforts.
Obama Orders Curbs on Solitary Confinement of Juveniles, Other Reforms
President Barack Obama on Jan. 25 announced he was ordering an end to most solitary confinement of juvenile prisoners in federal prisons and implementing other reforms recommended by a Department of Justice (DOJ) working group.
In a speech last July to the NAACP national convention, the president had announced he had asked Attorney General Loretta Lynch to lead a review of what he said was overuse of solitary confinement, and to develop strategies for reducing its use.
The newly-released DOJ report concludes corrections facilities may occasionally need to use solitary confinement for safety reasons, but adds the practice should be subject to reasonable limits and employed fairly and only rarely, as a last resort, not the default response. The Bureau of Prisons has reduced by almost 25% the number of federal prisoners in solitary, DOJ notes (using the term “restrictive housing”).
DOJ’s new restrictions on subjecting juvenile prisoners in the federal prison system to solitary confinement were taken from a section of a broader criminal law reform bill (S. 2123) introduced last October with bipartisan backing. Other reforms ordered by the president include: disallowing solitary confinement as a punishment for minor inmate misconduct; reducing maximum and minimum time limits on its use for more serious behavior; increasing the capacity of secure mental health facilities, so more inmates suffering from serious mental illness can be sent there for treatment; ordering wardens to draw up plans to maximize prisoners’ out-of-cell time; developing less restrictive housing units for prisoners nearing release; and publishing system-wide statistics on restrictive housing monthly on the Bureau of Prisons website.
To explain his actions, the president also contributed an op-ed article to the next day’s issue of the Washington Post. It began by recounting the story of Kalief Browder. Starting shortly before his 17th birthday, Browder spent three years in New York City’s Rikers Island jail, two of those years in solitary confinement. While a high school sophomore, he was arrested on charges of stealing a backpack – which he denied – but was never tried.
Unable to post bail, Browder languished at Rikers, where he claimed he was often mistreated by guards and inmates. In jail, he several times attempted suicide. After being released when prosecutors finally dropped charges, he returned home to the Bronx and began attending a community college, but within a few years, hanged himself at his mother’s apartment. The president noted solitary confinement “doesn’t make us safer” but stands as an “affront to our common humanity.”
The changes announced by the president are welcome and overdue, but will directly reach just a small part of the problem. Only a few dozen federal prison inmates are younger than 18; as of last December, the entire federal prison system had fewer than 10,000 inmates in restrictive housing. While the president notes American jails and prisons may hold 100,000 inmates in solitary confinement at any given time, most of them are in state or local facilities.
The real test will be whether the new White House action is followed by greater interest and action by states and localities, and whether DOJ and the Bureau of Prisons perform needed follow-up. Legislators and corrections officials in a growing number of areas have in recent years - whether prodded by litigation or by discovering its inhumaneness and ineffectiveness – begun to seek alternatives to solitary confinement. To help that effort, the latest DOJ report contains numerous examples of general principles and specific policy recommendations they would do well to consider.
Similarly, at the federal level, good intentions at the top are not a practical substitute for effective scrutiny of how well or poorly federal prison officials are carrying out the president’s new directives, and some parts of the plan will require new Congressional funding. Let’s all work for greater progress at both levels.
In a speech last July to the NAACP national convention, the president had announced he had asked Attorney General Loretta Lynch to lead a review of what he said was overuse of solitary confinement, and to develop strategies for reducing its use.
The newly-released DOJ report concludes corrections facilities may occasionally need to use solitary confinement for safety reasons, but adds the practice should be subject to reasonable limits and employed fairly and only rarely, as a last resort, not the default response. The Bureau of Prisons has reduced by almost 25% the number of federal prisoners in solitary, DOJ notes (using the term “restrictive housing”).
DOJ’s new restrictions on subjecting juvenile prisoners in the federal prison system to solitary confinement were taken from a section of a broader criminal law reform bill (S. 2123) introduced last October with bipartisan backing. Other reforms ordered by the president include: disallowing solitary confinement as a punishment for minor inmate misconduct; reducing maximum and minimum time limits on its use for more serious behavior; increasing the capacity of secure mental health facilities, so more inmates suffering from serious mental illness can be sent there for treatment; ordering wardens to draw up plans to maximize prisoners’ out-of-cell time; developing less restrictive housing units for prisoners nearing release; and publishing system-wide statistics on restrictive housing monthly on the Bureau of Prisons website.
To explain his actions, the president also contributed an op-ed article to the next day’s issue of the Washington Post. It began by recounting the story of Kalief Browder. Starting shortly before his 17th birthday, Browder spent three years in New York City’s Rikers Island jail, two of those years in solitary confinement. While a high school sophomore, he was arrested on charges of stealing a backpack – which he denied – but was never tried.
Unable to post bail, Browder languished at Rikers, where he claimed he was often mistreated by guards and inmates. In jail, he several times attempted suicide. After being released when prosecutors finally dropped charges, he returned home to the Bronx and began attending a community college, but within a few years, hanged himself at his mother’s apartment. The president noted solitary confinement “doesn’t make us safer” but stands as an “affront to our common humanity.”
The changes announced by the president are welcome and overdue, but will directly reach just a small part of the problem. Only a few dozen federal prison inmates are younger than 18; as of last December, the entire federal prison system had fewer than 10,000 inmates in restrictive housing. While the president notes American jails and prisons may hold 100,000 inmates in solitary confinement at any given time, most of them are in state or local facilities.
The real test will be whether the new White House action is followed by greater interest and action by states and localities, and whether DOJ and the Bureau of Prisons perform needed follow-up. Legislators and corrections officials in a growing number of areas have in recent years - whether prodded by litigation or by discovering its inhumaneness and ineffectiveness – begun to seek alternatives to solitary confinement. To help that effort, the latest DOJ report contains numerous examples of general principles and specific policy recommendations they would do well to consider.
Similarly, at the federal level, good intentions at the top are not a practical substitute for effective scrutiny of how well or poorly federal prison officials are carrying out the president’s new directives, and some parts of the plan will require new Congressional funding. Let’s all work for greater progress at both levels.
President’s Commutations Total Rises to 348; Has Sentencing Reform Stalled?
On June 3, President Obama commuted sentences for 42 more federal inmates, bringing his total to 348 individuals to have their prison sentences reduced or ended. A statement from White House counsel Neil Eggleston noted the total outstrips commutations issued by the past seven presidents combined. The last three months brought close to half – 161 -- of Obama’s total commutations, with 61 announced in March and 58 in May, on top of the latest round.
According to White House-released background information on inmates in the latest round of commutations, 20, or almost half, had been sentenced to prison for life, most for possessing or distributing crack or powder cocaine. Including the latest round, Obama has commuted life sentences for 130 federal inmates. The inmates with new commutations now have release dates ranging from the start of October through next June.
Eggleston’s statement also said those receiving commutations were serving prison time under laws with “outdated and unduly harsh” sentencing rules, and added President Obama “remains committed” to continuing to use his commutation powers through the rest of his term to help others who have earned a second chance by repaying their debt to society. Instead of issuing individual commutations, some sentencing reform advocates want him to reduce sentenced for classes of inmates, such as those sentenced for crack cocaine offenses before Congress acted to reduce those penalties.
Arguing that legislation is needed to address federal laws which impose unduly harsh minimum sentences on “thousands” of federal prisoners who as a result longer than needed sentences, the White House statement also pushed for bipartisan Congressional action to send a criminal justice reform bill to the president’s desk.
A sentencing reform bill (S. 2123) cleared by the Senate Judiciary Committee last October would reduce mandatory sentences for federal drug crimes, give judges more discretion in crafting sentences, and even make some of those changes retroactive. As recently as late April, a bipartisan group of members of the Senate Judiciary Committee announced support for a revised version of the bill.
There is significant support for the measure from some, but far from all of the Republicans controlling the Senate – conservatives like Charles Grassley (IA) and John Cornyn (TX) have supported it, while Ted Cruz (TX), Jeff Sessions (AL) and Tom Cotton (AR) have strongly opposed it.
Proponents have urged Senate Majority Leader Mitch McConnell (KY) to bring the bill up on the Senate floor, pointing to it as not only useful reforms, but also potentially one of the few measures that might gain enough bipartisan support to pass the sharply divided chamber in an election year. So far, he’s made no commitment the measure will be brought up in the few remaining months Congress will be in session.
In the House of Representatives, several limited measures have cleared the floor, but House Judiciary Committee chairman Robert Goodlatte (VA) says the chamber won’t act on a broad sentencing reform bill unless it adds a provision, strongly opposed by House Democrats, to mandate intent as part of the definition for most crimes. Even without that complication, the dwindling legislative calendar and sharp partisan divisions threaten to keep sentencing reform from seeing House floor action this year.
According to White House-released background information on inmates in the latest round of commutations, 20, or almost half, had been sentenced to prison for life, most for possessing or distributing crack or powder cocaine. Including the latest round, Obama has commuted life sentences for 130 federal inmates. The inmates with new commutations now have release dates ranging from the start of October through next June.
Eggleston’s statement also said those receiving commutations were serving prison time under laws with “outdated and unduly harsh” sentencing rules, and added President Obama “remains committed” to continuing to use his commutation powers through the rest of his term to help others who have earned a second chance by repaying their debt to society. Instead of issuing individual commutations, some sentencing reform advocates want him to reduce sentenced for classes of inmates, such as those sentenced for crack cocaine offenses before Congress acted to reduce those penalties.
Arguing that legislation is needed to address federal laws which impose unduly harsh minimum sentences on “thousands” of federal prisoners who as a result longer than needed sentences, the White House statement also pushed for bipartisan Congressional action to send a criminal justice reform bill to the president’s desk.
A sentencing reform bill (S. 2123) cleared by the Senate Judiciary Committee last October would reduce mandatory sentences for federal drug crimes, give judges more discretion in crafting sentences, and even make some of those changes retroactive. As recently as late April, a bipartisan group of members of the Senate Judiciary Committee announced support for a revised version of the bill.
There is significant support for the measure from some, but far from all of the Republicans controlling the Senate – conservatives like Charles Grassley (IA) and John Cornyn (TX) have supported it, while Ted Cruz (TX), Jeff Sessions (AL) and Tom Cotton (AR) have strongly opposed it.
Proponents have urged Senate Majority Leader Mitch McConnell (KY) to bring the bill up on the Senate floor, pointing to it as not only useful reforms, but also potentially one of the few measures that might gain enough bipartisan support to pass the sharply divided chamber in an election year. So far, he’s made no commitment the measure will be brought up in the few remaining months Congress will be in session.
In the House of Representatives, several limited measures have cleared the floor, but House Judiciary Committee chairman Robert Goodlatte (VA) says the chamber won’t act on a broad sentencing reform bill unless it adds a provision, strongly opposed by House Democrats, to mandate intent as part of the definition for most crimes. Even without that complication, the dwindling legislative calendar and sharp partisan divisions threaten to keep sentencing reform from seeing House floor action this year.
Bureau of Prisons Acts to Cut Back on Solitary Confinement
While prison systems and corrections officer unions are often reluctant to discuss the ills of solitary confinement, following pressure from various advocacy groups and even President Obama's stated policy goals of reducing such restrictive confinement, the Bureau of Prisons (BOP) has recently released information detailing just how common the practice of solitary confinement, or what BOP calls "Special Housing Units."
The most recent report, “Restricted Housing Data,” appeared in mid-May. It shows 8,228 inmates, or approximately 5.2%, of the 159,432 inmates housed in BOP custody – i.e., those in Bureau-operated prisons, not in privately managed or other types of facilities -- were in restricted confinement. In 2011, the figure was about 11,000.
Of them, 6,924 were housed on administrative detention status, while 1,304 were housed on disciplinary segregation status, only available as a formal sanction from a discipline hearing officer for misconduct. Inmates can be housed on administrative detention status for various reasons, including being under investigation for potential rule violations, awaiting transfer, protective custody, and pending transfer, and others.
In descending order of populations, the BOP data shows these reasons for its inmates being held in special housing units:
Pending investigation for a BOP violation (2,884 inmates)
Pending transfer or holdover (1,746 inmates)
Pending hearing for a BOP violation (1,217 inmates)
Inmate requested protective custody (407 inmates)
Pending classification (209 inmates)
Terminating disciplinary segregation, ordered to administrative detention (201 inmates)
Pending investigation for a criminal trial (141 inmates)
Awaiting administrative detention order (95 inmates)
Involuntary protective custody (24 inmates)
The BOP-released data also shows the amount of time federal prisoners are spending in restricted confinement. According to the data, 7,418 prisoners had been in the SHU for less than or equal to 90 days, 810 for over 90 days, 292 for over 180 days, and 65 for over 364 days. Of these, the Bureau clarifies 49 prisoners have been in the SHU for more than 30 days under protective custody status (often requested by inmates seeking isolation to avoid gang-related violence).
In January, six months after ordering the Department of Justice to examine federal uses of solitary confinement as part of a broader criminal justice reform project, the Obama administration announced executive actions designed to reduce use of restricted housing in federal prisons. Federal agencies, including BOP and Justice, were ordered to put the changes into effect within six months.
The revisions banned juvenile prisoners being placed in solitary confinement in federal prisons (only about a dozen juveniles were in solitary at the time), or for low-level offenses. The initiative also adopted over 50 detailed “Guiding Principles” for correctional facilities, devised by the Justice Department.
Despite these new federal policies, state prisons – not covered by the new federal changes -- have by far more prisoners, and prisoners in solitary confinement. But the Justice Department recently reached a major settlement of civil rights charges against a Mississippi county, Hinds County, home to the state’s largest city, Jackson, based on how prisoners there are treated. The proposed settlement, which must still be approved by a judge, would require the county to adopt many of the Justice Department’s new principles.
The most recent report, “Restricted Housing Data,” appeared in mid-May. It shows 8,228 inmates, or approximately 5.2%, of the 159,432 inmates housed in BOP custody – i.e., those in Bureau-operated prisons, not in privately managed or other types of facilities -- were in restricted confinement. In 2011, the figure was about 11,000.
Of them, 6,924 were housed on administrative detention status, while 1,304 were housed on disciplinary segregation status, only available as a formal sanction from a discipline hearing officer for misconduct. Inmates can be housed on administrative detention status for various reasons, including being under investigation for potential rule violations, awaiting transfer, protective custody, and pending transfer, and others.
In descending order of populations, the BOP data shows these reasons for its inmates being held in special housing units:
Pending investigation for a BOP violation (2,884 inmates)
Pending transfer or holdover (1,746 inmates)
Pending hearing for a BOP violation (1,217 inmates)
Inmate requested protective custody (407 inmates)
Pending classification (209 inmates)
Terminating disciplinary segregation, ordered to administrative detention (201 inmates)
Pending investigation for a criminal trial (141 inmates)
Awaiting administrative detention order (95 inmates)
Involuntary protective custody (24 inmates)
The BOP-released data also shows the amount of time federal prisoners are spending in restricted confinement. According to the data, 7,418 prisoners had been in the SHU for less than or equal to 90 days, 810 for over 90 days, 292 for over 180 days, and 65 for over 364 days. Of these, the Bureau clarifies 49 prisoners have been in the SHU for more than 30 days under protective custody status (often requested by inmates seeking isolation to avoid gang-related violence).
In January, six months after ordering the Department of Justice to examine federal uses of solitary confinement as part of a broader criminal justice reform project, the Obama administration announced executive actions designed to reduce use of restricted housing in federal prisons. Federal agencies, including BOP and Justice, were ordered to put the changes into effect within six months.
The revisions banned juvenile prisoners being placed in solitary confinement in federal prisons (only about a dozen juveniles were in solitary at the time), or for low-level offenses. The initiative also adopted over 50 detailed “Guiding Principles” for correctional facilities, devised by the Justice Department.
Despite these new federal policies, state prisons – not covered by the new federal changes -- have by far more prisoners, and prisoners in solitary confinement. But the Justice Department recently reached a major settlement of civil rights charges against a Mississippi county, Hinds County, home to the state’s largest city, Jackson, based on how prisoners there are treated. The proposed settlement, which must still be approved by a judge, would require the county to adopt many of the Justice Department’s new principles.
President Obama’s Commutation Pen Stays Busy
Last week, President Obama issued his fourth batch this year of commutation orders for federal prisoners last week, releasing or reducing sentences for another 214 inmates. This booststotal commutations since he took office to 562.
The White House also announced on Aug. 3 that Obama’s commutations now exceed the combined total for his nine most recent Oval Office predecessors (John F. Kennedy through George W. Bush).
A blog entry by White House counsel to the president Neil Eggleston noted the August commutations represented the largest action of its type in a single day since at least the year 1900, and included 67 inmates serving life sentences (bringing that total to 179).
As Eggleston also observed, since the Clemency Initiative grants require individual review by the Department of Justice and the President, they may provide individualized relief or contain personalized conditions. So, some commutation grants will free inmates in the months ahead, while others will not bring release, but instead reduce sentences by years, and others are conditioned on the inmate seeking drug rehab treatment.
Eggleston’s commentary also notes he expects President Obama in his remaining months in office will continue issuing clemency grants “in a historic and inspiring fashion.” Some clemency advocates have urged the president to adopt even broader measures, such as granting blanket rather than individualized relief to categories of inmates, such as those convicted before a change in sentencing law for crack cocaine offenses reduced prison terms for those convicted in 1990 or later, without retroactively reducing sentences of those convicted earlier.
The White House counsel’s blog entry also renewed the administration’s call for Congress to clear a criminal justice reform law for the president to sign, since legislative change is needed to achieve fundamental change in criminal penalties. Even if legislators decide to turn to that topic after the end of their summer recess, Congress’ need to concentrate on finishing work on government funding measures, the short pre-election legislative calendar, and significant disagreements over numerous provisions year are likely to dim hopes for major action on criminal justice reform this year.
Some optimists hope that it might be dealt with during a post-election lame-duck session, but this scenario seems to have at best a remote chance.
Over two years ago, the administration announced a clemency initiative designed to provide relief for federal prisoners serving lengthy sentences for non-violent crimes, particularly those for which sentences were reduced after those prisoners were sentenced.
The Department of Justice officially launched Clemency Initiative 2014 on April 23 of that year, with the assistance of volunteers from law firms and five non-profit groups, inviting clemency petitions from inmates meeting the program’s exacting eligibility standards: at least 10 years already served, a sentence which subsequent law changes would likely mean significantly shorter time today, good conduct while incarcerated, low-level and non-violent offenses, and no previous serious convictions or ties to gangs or drug cartels.
The Department of Justice has not announced precisely how many clemency petitions it received by the October 19, 2015 deadline for submissions, but by this June, it had taken in at least 34,000, had rejected about 25,000 and was still working on about 10,000.
The White House also announced on Aug. 3 that Obama’s commutations now exceed the combined total for his nine most recent Oval Office predecessors (John F. Kennedy through George W. Bush).
A blog entry by White House counsel to the president Neil Eggleston noted the August commutations represented the largest action of its type in a single day since at least the year 1900, and included 67 inmates serving life sentences (bringing that total to 179).
As Eggleston also observed, since the Clemency Initiative grants require individual review by the Department of Justice and the President, they may provide individualized relief or contain personalized conditions. So, some commutation grants will free inmates in the months ahead, while others will not bring release, but instead reduce sentences by years, and others are conditioned on the inmate seeking drug rehab treatment.
Eggleston’s commentary also notes he expects President Obama in his remaining months in office will continue issuing clemency grants “in a historic and inspiring fashion.” Some clemency advocates have urged the president to adopt even broader measures, such as granting blanket rather than individualized relief to categories of inmates, such as those convicted before a change in sentencing law for crack cocaine offenses reduced prison terms for those convicted in 1990 or later, without retroactively reducing sentences of those convicted earlier.
The White House counsel’s blog entry also renewed the administration’s call for Congress to clear a criminal justice reform law for the president to sign, since legislative change is needed to achieve fundamental change in criminal penalties. Even if legislators decide to turn to that topic after the end of their summer recess, Congress’ need to concentrate on finishing work on government funding measures, the short pre-election legislative calendar, and significant disagreements over numerous provisions year are likely to dim hopes for major action on criminal justice reform this year.
Some optimists hope that it might be dealt with during a post-election lame-duck session, but this scenario seems to have at best a remote chance.
Over two years ago, the administration announced a clemency initiative designed to provide relief for federal prisoners serving lengthy sentences for non-violent crimes, particularly those for which sentences were reduced after those prisoners were sentenced.
The Department of Justice officially launched Clemency Initiative 2014 on April 23 of that year, with the assistance of volunteers from law firms and five non-profit groups, inviting clemency petitions from inmates meeting the program’s exacting eligibility standards: at least 10 years already served, a sentence which subsequent law changes would likely mean significantly shorter time today, good conduct while incarcerated, low-level and non-violent offenses, and no previous serious convictions or ties to gangs or drug cartels.
The Department of Justice has not announced precisely how many clemency petitions it received by the October 19, 2015 deadline for submissions, but by this June, it had taken in at least 34,000, had rejected about 25,000 and was still working on about 10,000.
Obama’s Commutations Continue, But What About Pardons?
With two more batches of sentence commutations granted in October, President Obama now holds a couple of records in that area.
By issuing commutations for 102 federal inmates on Oct. 6, followed by 98 more on Oct. 27, he set the record for commutations in a single year. His total for 2016 reached 688 – more in a single year than any other president. A few months earlier, on Aug. 3, he also claimed the all-time single-day record by issuing 214 commutations.
Thus far in his presidency, Obama has handed 872 federal inmates shorter sentences, second only to the 1,366 commutations total issued by Woodrow Wilson, mostly after World War I. Since the White House says the president will continue to issue meritorious commutations through the rest of his term, Wilson’s record could yet be broken.
But when it comes to another, broader form of clemency – issuing full presidential pardons – the administration has made far less of a mark. As of the first week of October, Obama had issued only 70 pardons since taking office. That’s well behind the pace for presidential pardons by his other two-term predecessors: Bill Clinton issued 396; Ronald Reagan granted 393; and George W. Bush handed out 189. In fact, as of this writing, Obama has granted the fewest presidential pardons of any two-term president since George Washington.
Commutations shorten sentences but do not affect post-release restrictions, such as parole or restrictions on the right to possess firearms. A significant number of the Obama-issued commutations have been conditioned on inmates enrolling in residential drug treatment before being released – which led one inmate to refuse to accept his commutation. Full pardons, on the other hand, bring full legal forgiveness, effectively wiping out record of a crime.
Several factors may help to explain Obama’s relative lack of attention to pardons. First, ever since the administration announced its new clemency initiative in mid-2014, commutations have virtually monopolized its clemency efforts. If you don’t count pardons handed to four Iranians as part of a prisoner exchange earlier this year (which go through a different process than pardons for federal inmates), Obama has only granted two pardons since December 2014.
The administration could argue it had no choice but to focus almost exclusively on commutations, since its clemency initiative, as well as retroactive changes in federal sentencing guidelines for some drug offenses, produced a huge wave of commutation applications — over 29,000, by official records. Another possible reason is that pardons may have become politically more suspect, due to historic situations like President Ford’s pardon of Richard Nixon, George H.W. Bush’s pardons of figures in the Iran-Contra scandal, and Bill Clinton’s issuing 140 pardons on his final day in office, including one to a fugitive financier whose former wife was a major contributor to the Democratic party.
The imbalance between sentence commutations and pardons may be about to end, however. Fielding a question on the disparity at an August news conference, Obama acknowledged his administration had “focused more on commutations than… pardons," but said that by the time he leaves office, he will have issued pardons “roughly in line” with the numbers granted by other presidents.
By issuing commutations for 102 federal inmates on Oct. 6, followed by 98 more on Oct. 27, he set the record for commutations in a single year. His total for 2016 reached 688 – more in a single year than any other president. A few months earlier, on Aug. 3, he also claimed the all-time single-day record by issuing 214 commutations.
Thus far in his presidency, Obama has handed 872 federal inmates shorter sentences, second only to the 1,366 commutations total issued by Woodrow Wilson, mostly after World War I. Since the White House says the president will continue to issue meritorious commutations through the rest of his term, Wilson’s record could yet be broken.
But when it comes to another, broader form of clemency – issuing full presidential pardons – the administration has made far less of a mark. As of the first week of October, Obama had issued only 70 pardons since taking office. That’s well behind the pace for presidential pardons by his other two-term predecessors: Bill Clinton issued 396; Ronald Reagan granted 393; and George W. Bush handed out 189. In fact, as of this writing, Obama has granted the fewest presidential pardons of any two-term president since George Washington.
Commutations shorten sentences but do not affect post-release restrictions, such as parole or restrictions on the right to possess firearms. A significant number of the Obama-issued commutations have been conditioned on inmates enrolling in residential drug treatment before being released – which led one inmate to refuse to accept his commutation. Full pardons, on the other hand, bring full legal forgiveness, effectively wiping out record of a crime.
Several factors may help to explain Obama’s relative lack of attention to pardons. First, ever since the administration announced its new clemency initiative in mid-2014, commutations have virtually monopolized its clemency efforts. If you don’t count pardons handed to four Iranians as part of a prisoner exchange earlier this year (which go through a different process than pardons for federal inmates), Obama has only granted two pardons since December 2014.
The administration could argue it had no choice but to focus almost exclusively on commutations, since its clemency initiative, as well as retroactive changes in federal sentencing guidelines for some drug offenses, produced a huge wave of commutation applications — over 29,000, by official records. Another possible reason is that pardons may have become politically more suspect, due to historic situations like President Ford’s pardon of Richard Nixon, George H.W. Bush’s pardons of figures in the Iran-Contra scandal, and Bill Clinton’s issuing 140 pardons on his final day in office, including one to a fugitive financier whose former wife was a major contributor to the Democratic party.
The imbalance between sentence commutations and pardons may be about to end, however. Fielding a question on the disparity at an August news conference, Obama acknowledged his administration had “focused more on commutations than… pardons," but said that by the time he leaves office, he will have issued pardons “roughly in line” with the numbers granted by other presidents.
What Will Happen to the Clemency Movement in the Trump Administration?
Rather than slackening off as the Obama administration nears its final days, the clemency initiative announced in April 2014 for federal prisoners is picking up speed. From the Oct. 1 start of the current fiscal year until two days before Election Day, the president had issued 272 sentence commutations — nearly one-third of its total up to that time.
On election eve, the sentences of 72 inmates were commuted, followed by 79 more Nov. 22, bringing the total for the Obama administration to 1,023, exceeding the combined total for commutations issued by all 11 presidents from Harry Truman through George W. Bush. Of Obama’s clemency grants, thus far 342 have gone to inmates serving life sentences, and most recipients were serving lengthy sentences for nonviolent, primarily drug-related, offenses.
But what will happen to the commutation movement after Trump’s inauguration?
During the presidential campaign, Donald Trump generally sounded a get-tougher line on criminal law, but had relatively little to say on Obama’s clemency program. What he did say, however, sparked fears among advocates of decriminalizing or reducing penalties for drug offenses, or adopting new approaches to incarceration. For example, at a town hall event in New Hampshire two days before that state’s primary election, Trump said the approximately 6,000 inmates released after the Obama administration revised some drug sentencing criteria in 2015 would soon “be back selling drugs.” More recently, at an August event in Florida, the GOP candidate described some of those released under the clemency program as “bad dudes,” before sarcastically telling his audience to “sleep tight, folks.”
Another troubling sign to advocates of criminal justice revisions – such as those in a now-apparently stalled bill introduced in Congress last year with substantial bipartisan support – was the president-elect’s announcement he would nominate Alabama Sen. Jeff Sessions (R) as his Attorney General. Sessions has been a consistent proponent of strict drug penalties and an opponent of reducing mandatory minimum sentences.
Once in office, Trump cannot reverse clemency grants issued by Obama, but can, if he chooses, quickly reverse executive orders issued by his predecessor. In fact in several areas — such as executive orders for more lenient treatment of young persons not legally in this country, and their parents — Trump has explicitly promised he would do so. Some of the executive orders are already being halted by court orders. Obama administration executive actions taken through regulations, however, will likely have to go through a similar rulemaking process in order to be undone.
As for the clemency program, Obama’s White House counsel has said the president, even though a lame duck, will keep on granting clemencies in his final days in office. The Department of Justice official who announced the clemency program adds that the president is aware how deeply a clemency grant can improve the lives of not just inmates, but their families as well.
That is not enough, however, for some clemency advocates, who are publicly urging Obama to issue blanket clemency for whole classes of federal inmates – prominently, those who were already serving long sentences for crack cocaine offenses before 2010 — when Congress passed and Obama signed the Fair Sentencing Act, which brought penalties for crack more in line with those for powder cocaine, but was not retroactive.
On election eve, the sentences of 72 inmates were commuted, followed by 79 more Nov. 22, bringing the total for the Obama administration to 1,023, exceeding the combined total for commutations issued by all 11 presidents from Harry Truman through George W. Bush. Of Obama’s clemency grants, thus far 342 have gone to inmates serving life sentences, and most recipients were serving lengthy sentences for nonviolent, primarily drug-related, offenses.
But what will happen to the commutation movement after Trump’s inauguration?
During the presidential campaign, Donald Trump generally sounded a get-tougher line on criminal law, but had relatively little to say on Obama’s clemency program. What he did say, however, sparked fears among advocates of decriminalizing or reducing penalties for drug offenses, or adopting new approaches to incarceration. For example, at a town hall event in New Hampshire two days before that state’s primary election, Trump said the approximately 6,000 inmates released after the Obama administration revised some drug sentencing criteria in 2015 would soon “be back selling drugs.” More recently, at an August event in Florida, the GOP candidate described some of those released under the clemency program as “bad dudes,” before sarcastically telling his audience to “sleep tight, folks.”
Another troubling sign to advocates of criminal justice revisions – such as those in a now-apparently stalled bill introduced in Congress last year with substantial bipartisan support – was the president-elect’s announcement he would nominate Alabama Sen. Jeff Sessions (R) as his Attorney General. Sessions has been a consistent proponent of strict drug penalties and an opponent of reducing mandatory minimum sentences.
Once in office, Trump cannot reverse clemency grants issued by Obama, but can, if he chooses, quickly reverse executive orders issued by his predecessor. In fact in several areas — such as executive orders for more lenient treatment of young persons not legally in this country, and their parents — Trump has explicitly promised he would do so. Some of the executive orders are already being halted by court orders. Obama administration executive actions taken through regulations, however, will likely have to go through a similar rulemaking process in order to be undone.
As for the clemency program, Obama’s White House counsel has said the president, even though a lame duck, will keep on granting clemencies in his final days in office. The Department of Justice official who announced the clemency program adds that the president is aware how deeply a clemency grant can improve the lives of not just inmates, but their families as well.
That is not enough, however, for some clemency advocates, who are publicly urging Obama to issue blanket clemency for whole classes of federal inmates – prominently, those who were already serving long sentences for crack cocaine offenses before 2010 — when Congress passed and Obama signed the Fair Sentencing Act, which brought penalties for crack more in line with those for powder cocaine, but was not retroactive.
Obama Takes Criminal Justice Victory Lap in Harvard Law Review
Founded in 1887, the Harvard Law Review is probably the nation’s best-known journal published by law students. The author of the lead article in this January’s issue, who first made history by being the first African-American student elected president of the publication in 1990-91, did so again by becoming the first U.S. president to publish an article in a scholarly legal journal. Barack Obama’s contribution is an extensively footnoted 56-page commentary entitled “The President’s Role in Advancing Criminal Justice Reform.”
Appearing weeks before Obama vacates the White House, the article appears partly to be a legacy-burnishing project, setting out steps the president says he took to make the nation’s criminal justice system “smarter, fairer and more effective” in protecting public safety, adding criminal justice reform has been a focus throughout his career.
His greatest-hits list includes: curbing solitary confinement, passing legislation to reduce the sentencing disparity between crack and powder cocaine, “ban the box” orders preventing federal agencies and contractors from quizzing job applicants on their criminal records at early stages of their hiring process, expanding hate-crime laws to include sexual orientation, and helping create mentoring and other initiatives to keep young people away from crime.
While the article’s subject is familiar, the style is somewhat unusual for a scholarly journal. Wherever possible, the president’s first-person account notes milestone achievements and personal reflections. So the reader learns the president discovered early, while a community organizer, that the criminal justice system “exacerbates inequality” as early mistakes can trap youths in an “endless cycle of marginalization and punishment.”
The president notes he was the first president to visit a federal prison, the first since Jimmy Carter to see the number of federal inmates decline during his term, and has commuted sentences for more federal inmates than the combined total for the 11 presidents before him. In recalling his experiences consoling families of officers killed on duty and parents of children slain by guns, and meeting with prisoners being released into re-entry programs, the article employs the words “my” or “myself” about 70 times, “I” turns about almost as frequently, and the more collegial “we” and “our” together put in about 150 appearances. Besides liberally citing campaign documents, White House factsheets, and agency press releases and white papers, the article is not too modest to draw on the president’s memoir and speeches.
Obama’s article is divided into four main parts. The first makes a case for urgently needed criminal justice reforms, arguing the nation and the states cannot afford to expend $80 billion a year to incarcerate 2.2 million individuals, disregard the 70 million Americans with some form of criminal record, or “deny the legacy of racism” still affecting the criminal justice system. The second part recounts changes made during his term in the federal prison system, and the third focuses on ways a president can promote changes in criminal law at the state and local levels.
The final part of article leaves behind a to-do list of further changes the president would like to see, including bipartisan sentencing reform legislation which stalled during his term, additional gun control measures, countermeasures to epidemic-level opioid abuse, restoring voting rights for ex-prisoners, improvements to forensic science, and better criminal justice data.
Appearing weeks before Obama vacates the White House, the article appears partly to be a legacy-burnishing project, setting out steps the president says he took to make the nation’s criminal justice system “smarter, fairer and more effective” in protecting public safety, adding criminal justice reform has been a focus throughout his career.
His greatest-hits list includes: curbing solitary confinement, passing legislation to reduce the sentencing disparity between crack and powder cocaine, “ban the box” orders preventing federal agencies and contractors from quizzing job applicants on their criminal records at early stages of their hiring process, expanding hate-crime laws to include sexual orientation, and helping create mentoring and other initiatives to keep young people away from crime.
While the article’s subject is familiar, the style is somewhat unusual for a scholarly journal. Wherever possible, the president’s first-person account notes milestone achievements and personal reflections. So the reader learns the president discovered early, while a community organizer, that the criminal justice system “exacerbates inequality” as early mistakes can trap youths in an “endless cycle of marginalization and punishment.”
The president notes he was the first president to visit a federal prison, the first since Jimmy Carter to see the number of federal inmates decline during his term, and has commuted sentences for more federal inmates than the combined total for the 11 presidents before him. In recalling his experiences consoling families of officers killed on duty and parents of children slain by guns, and meeting with prisoners being released into re-entry programs, the article employs the words “my” or “myself” about 70 times, “I” turns about almost as frequently, and the more collegial “we” and “our” together put in about 150 appearances. Besides liberally citing campaign documents, White House factsheets, and agency press releases and white papers, the article is not too modest to draw on the president’s memoir and speeches.
Obama’s article is divided into four main parts. The first makes a case for urgently needed criminal justice reforms, arguing the nation and the states cannot afford to expend $80 billion a year to incarcerate 2.2 million individuals, disregard the 70 million Americans with some form of criminal record, or “deny the legacy of racism” still affecting the criminal justice system. The second part recounts changes made during his term in the federal prison system, and the third focuses on ways a president can promote changes in criminal law at the state and local levels.
The final part of article leaves behind a to-do list of further changes the president would like to see, including bipartisan sentencing reform legislation which stalled during his term, additional gun control measures, countermeasures to epidemic-level opioid abuse, restoring voting rights for ex-prisoners, improvements to forensic science, and better criminal justice data.
Obama’s Clemency Totals: 1,715 Commutations, Including Secrets-Leaker Manning
With less than four days left in office, On Jan. 17 president Obama commuted nearly all of the 28 years remaining in the 35-year court-martial sentence of Chelsea Manning, the former army intelligence analyst who copied over 700,000 archived military and diplomatic files — some classified — and sent them to WikiLeaks. The reduction in Manning’s sentence was part of 273 commutations issued that day.
Also receiving a commutation of a lengthy sentence was Puerto Rican independence activist Oscar López Rivera, who was sentenced in the 1980s to 55 years for conspiracy, firearms and explosives offenses, and other violations connected to Fuerzas Armadas de Liberación Nacional (FALN) bombings in the ’70s and ’80s, plus another 15 years for a failed escape attempt.
Two days later, the White House announced the departing president’s final batch of 330 clemency actions, including 64 pardons, an area in which Obama lagged many of his predecessors. Receiving a pardon was former Joint Chiefs of Staff vice-chair Marine General James Cartwright, who was due to be sentenced soon on a guilty plea of lying to FBI investigators investigating leaks on covert U.S. efforts to impede Iran’s development of nuclear weapons.
The final batch of pardons did not include relief for some prominent inmates who had requested clemency, such as Illinois ex-governor Rod Blagojevich, now in his fourth year of a 14-year sentence on corruption charges, or Army deserter Bowe Bergdahl, facing trial this spring after being exchanged for five Taliban members, much less for other prominent figures who did not seek pardons for possible future charges, such as secrets-leaker Edward Snowden.
By the end of his two terms, Obama had commuted the sentences of 1,715 federal inmates, including 568 who were serving or facing life sentences. He also issued a total of 212 pardons. The total 1,927 clemency actions by Obama topped all presidents since Harry Truman, and his commutations exceeded the combined total for his 12 most recent predecessors.
The majority of clemency recipients were serving time for nonviolent drug offenses, on which Obama has focused his attention, especially over the past two years. But the greatest attention —and most controversy — centered on Obama’s order to cut short the record-length sentence that a military court handed down to former Army Pfc. Bradley Manning, setting Manning free May 17, rather than in 2045.
Shortly after enlisting in the army, Manning was assigned to Iraq to monitor movements of insurgent forces. Given access to intelligence archives, the 22-year-old private downloaded combat reports from Afghanistan and Iraq, including sensitive reports on abuses of detainees, then sent them to WikiLeaks. Convicted in 2013 in a military court of six counts of Espionage Act violations, though not on charges of aiding the enemy, Manning is currently confined in the military prison at Fort Leavenworth, Kansas.
In pleading guilty to some charges, the ex-soldier – who enlisted as Bradley Edward Manning – spoke about the great psychological pressure of disguising her identity as a transgendered woman. The commutation was issued to Chelsea Elizabeth Manning, the name she legally adopted in 2014.
In his final news conference, Obama defended his order, saying Manning had “served a tough prison sentence… disproportionate” to those previously handed down for similar offenses.
Also receiving a commutation of a lengthy sentence was Puerto Rican independence activist Oscar López Rivera, who was sentenced in the 1980s to 55 years for conspiracy, firearms and explosives offenses, and other violations connected to Fuerzas Armadas de Liberación Nacional (FALN) bombings in the ’70s and ’80s, plus another 15 years for a failed escape attempt.
Two days later, the White House announced the departing president’s final batch of 330 clemency actions, including 64 pardons, an area in which Obama lagged many of his predecessors. Receiving a pardon was former Joint Chiefs of Staff vice-chair Marine General James Cartwright, who was due to be sentenced soon on a guilty plea of lying to FBI investigators investigating leaks on covert U.S. efforts to impede Iran’s development of nuclear weapons.
The final batch of pardons did not include relief for some prominent inmates who had requested clemency, such as Illinois ex-governor Rod Blagojevich, now in his fourth year of a 14-year sentence on corruption charges, or Army deserter Bowe Bergdahl, facing trial this spring after being exchanged for five Taliban members, much less for other prominent figures who did not seek pardons for possible future charges, such as secrets-leaker Edward Snowden.
By the end of his two terms, Obama had commuted the sentences of 1,715 federal inmates, including 568 who were serving or facing life sentences. He also issued a total of 212 pardons. The total 1,927 clemency actions by Obama topped all presidents since Harry Truman, and his commutations exceeded the combined total for his 12 most recent predecessors.
The majority of clemency recipients were serving time for nonviolent drug offenses, on which Obama has focused his attention, especially over the past two years. But the greatest attention —and most controversy — centered on Obama’s order to cut short the record-length sentence that a military court handed down to former Army Pfc. Bradley Manning, setting Manning free May 17, rather than in 2045.
Shortly after enlisting in the army, Manning was assigned to Iraq to monitor movements of insurgent forces. Given access to intelligence archives, the 22-year-old private downloaded combat reports from Afghanistan and Iraq, including sensitive reports on abuses of detainees, then sent them to WikiLeaks. Convicted in 2013 in a military court of six counts of Espionage Act violations, though not on charges of aiding the enemy, Manning is currently confined in the military prison at Fort Leavenworth, Kansas.
In pleading guilty to some charges, the ex-soldier – who enlisted as Bradley Edward Manning – spoke about the great psychological pressure of disguising her identity as a transgendered woman. The commutation was issued to Chelsea Elizabeth Manning, the name she legally adopted in 2014.
In his final news conference, Obama defended his order, saying Manning had “served a tough prison sentence… disproportionate” to those previously handed down for similar offenses.
