Last April, the DOJ announced it would encourage federal inmates who met certain criteria to apply for clemency so that their sentences would be reduced. We discussed the DOJ’s proposal further at the time; by way of review, here are the six criteria:

  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.

One might read these criteria and conclude that no one who has ever been convicted of a violent offense need apply. However, this is not quite accurate, as we explain below.

As a general rule, to be reckoned a violent offense, a crime must include “the use, attempted use, or threatened use of physical force” against someone else (see, for example, 18 U.S.C. § 3559(c)(2)(F)(ii)). Directing force against someone else also counts as a violent offense. Besides the more obvious crimes of murder, assault, and physical abuse, violent crimes include arson, extortion, and kidnapping. However, some offenses could be committed in either a violent or a nonviolent way despite what the offense is called. Robbery is generally thought of as a violent offense, but it does not have to be violent. For instance, bank robberies have been committed when the robber simply passes a note to the teller that they are robbing the bank without threatening to injure anyone. This principle cuts both ways; if an inmate was been convicted of a nonviolent offense, but the evidence shows that they used, threatened to use, or attempted violence, then that counts as a history of violence.

Two main causes of being imprisoned for a violent crime without actually doing anything violent are being convicted of (1) aiding and abetting a violent crime or (2) conspiring to commit a violent crime. For instance, last spring, in the case of Rosemond v. U.S., the Supreme Court ruled that the Government must prove that a defendant knew in advance that a firearm would be handy during a drug deal in order to convict the defendant of aiding and abetting a 18 U.S.C. § 924(c) violation (which penalizes using a firearm during a drug deal). However, if in some case a defendant did not know about an accomplice’s firearm until it discharged, then the accomplice would have committed a violent crime, but the defendant without the firearm might not have committed any violence.

If you believe that you or your loved one did not commit an act of violence even though you/they have a conviction for a violent offense, you need to retain an attorney to examine the record to see whether it was proved the convict actually performed a violent act. When the DOJ clemency initiative was announced, they said, “All inmates who appear to meet these six criteria will be offered the assistance of an experienced pro bono attorney in preparing his or her application for clemency.” If a pro bono attorney is actually available, they should be qualified to analyze the record. But perhaps someone at the DOJ will need to be convinced that an inmate meets their criteria before offering pro bono help? Although we are not on the pro bono list, we may be able to help you. Just click on the “Contact Us” link here or at the top of the page, and I would be glad to talk to you about your matter. You may also email me directly at, or you can call me at (512) 693-9LAW.


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