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What did the Department of Justice say?

On Wednesday, April 23, 2014, the DOJ announced at a press conference that it would start encouraging federal inmates who meet six criteria to apply to have their sentences commuted (reduced or shortened). It made that announcement in light of the Fair Sentencing Act of 2010 and other legal factors that have reduced the sentencing guidelines for certain crimes, especially those involving crack cocaine.

What are the six criteria?

The following criteria are quoted directly from the DOJ’s press conference remarks:

  1. inmates who are currently serving a federal sentence in prison and, by operation of law, likely would have received a substantially lower sentence if convicted of the same offense today;
  2. are non-violent, low-level offenders without significant ties to large-scale criminal organizations, gangs, or cartels;
  3. have served at least 10 years of their sentence;
  4. do not have a significant criminal history;
  5. have demonstrated good conduct in prison; and
  6. have no history of violence prior to or during their current term of imprisonment.

What is the process for applying for a sentence commutation?

  1. The Bureau of Prisons (BOP) staff will tell all inmates about this DOJ initiative and what the criteria are. (This is supposed to happen sometime the week of April 28 – May 2).
  2. According to the press conference remarks, “If an inmate believes he or she fits these six criteria, the Bureau of Prisons will provide them with an electronic survey to fill out that will allow Department [of Justice] lawyers to efficiently screen whether the petition merits further consideration.”
  3. If, according to the inmate’s responses on the electronic survey, the inmate appears to meet these six criteria, they will be offered the assistance of an attorney pro bono in preparing their petition for clemency.
    (For the past several months, the DOJ has been soliciting attorneys to donate some time to this project. The resulting list of attorneys is called the Clemency Project 2014. We are not on the list of pro bono attorneys.)
  4. Inmates submit a commutation petition (with the help of one of the pro bono lawyers, if desired).
  5. The Pardon Attorney’s Office will review these petitions. Since the DOJ expects a great increase in applications for commutation, they are taking steps to make sure the Pardon Attorney’s Office has many attorneys available to review these applications.
  6. Finally, according to the DOJ announcement, if the DOJ “[makes] a preliminary determination that a petition is worthy of serious consideration, [they] will consult with both the United States Attorney’s Office and the trial judge that handled the case to get their views on the propriety of granting the application.”

What can we hope for?

It is encouraging that the Obama administration is taking seriously the problem of unjustly long prison terms and prison overcrowding. However, we want to caution our readers against great expectations. Consider the following hurdles:

  • Note the basic criteria that the inmate must have served at least 10 years of their sentence and their offense must have been a nonviolent offense. Furthermore — and, on this point, prison officials have a great deal of control — the inmate must have a record of good conduct in prison.
  • There are other points in the criteria that are open to more or less strict interpretations. For instance, prison officials also have control over whether an inmate is disciplined for violence while in prison. (Note that the last criterion specifically disqualifies violence during the current term of imprisonment).
  • Likewise, how strictly will “low-level offenders without significant ties to large-scale criminal organizations,” be interpreted? What is “large-scale”? What are “significant ties”?
  • And what exactly does “do not have a significant criminal history” mean? Attorney General Holder has used the phrase, “significant criminal history,” before to mean “normally … three or more criminal history points but may involve fewer or greater depending on the nature of any prior convictions,” (quoting his memo of Aug. 12, 2013). As we can see, there is quite a bit of wiggle room in that definition.
  • Given these qualifications, several sources estimate that the number of inmates eligible to apply is around 20,000. NPR reported that the DOJ “expects only a fraction of the applications will be granted.”
  • Although the Pardon Attorney’s Office is gearing up for a rush of applications, note that the policy says that the U.S. Attorney’s office and the trial judge will be consulted. That final step may prove to be a bottleneck that greatly impedes the sentence commutation process.

Those who hope for a sentence reduction should also note that, when the first criterion says, “by operation of law, likely would have received a substantially lower sentence if convicted of the same offense today” (emphasis added), that today neither the Sentencing Guideline amendments including “Drug Minus Two” nor the cuts in mandatory minimums proposed in the Smarter Sentencing Act are law. (UPDATE: Although the Smarter Sentencing Act did not pass, “Drug Minus Two,” Amendment 782’s across-the-board two-level reduction, is in effect now.) In the future, the sentences for certain offenses may be lower, but in the meantime one must check what sentencing guideline range today’s laws would indicate.

We do hope that the practice of giving draconian sentences for minor drug crimes will end. However, given this administration’s track record, we would like to see how this initiative works out in implementation before putting much hope in it. We will keep you updated on changes to sentencing laws and guidelines.

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