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Although the Department of Justice (DOJ) has encouraged drug offenders to apply for clemency, they are working through those applications at a snail’s pace. Those granted clemency just before Christmas are a scant handful selected from many applications.

According to a recent POLITICO article, in the months since the DOJ has encouraged federal inmates to apply for clemency, “more than 25,000 prisoners have come forward.” The same article goes on to explain that the process is drastically slowed by three bottlenecks:

  1. It takes a long time to get the probation and sentencing reports from the court that sentenced each inmate.
  2. There is inadequate staff at the Office of the Pardon Attorney to process the thousands of applications they are receiving.
  3. The criteria given by the DOJ last April create a lot of gray area concerning who is eligible. Some inmates easily meet the criteria, but for many others, it’s debatable.

By way of reminder, here are the criteria that the DOJ announced last April:

  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.

We discussed the ambiguity of those criteria in our blog post at the time. Nevertheless, keep in mind that any federal prisoner may apply for clemency whether or not they meet these criteria.

Clemency is a broad term covering both pardons and commutations. When the president issues an order shortening someone’s sentence, that’s a commutation. A pardon for a crime removes all punishment, including restoring rights lost by being convicted of the crime (e.g., voting rights and other civil rights).

So, despite the DOJ’s stated desire to use the president’s power to grant clemency to reduce the number of people in prison due to draconian drug laws, it seems that the Obama administration is still talking a lot about what needs to be done but not doing a lot about it.


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