US widens path to clemency for nonviolent federal drug offenders

The new Justice Department clemency guidelines, which apply to inmates who have served 10 years of their sentence, are designed to alleviate racial disparities left over from tough drug laws.

The US Justice Department Wednesday widened the path to clemency for nonviolent federal drug offenders with an initiative designed to alleviate longstanding sentencing disparities left over from tough drug laws that disproportionately affected black drug offenders.

The new clemency guidelines apply to inmates who have served 10 or more years in prison and meet other criteria, with some analysts saying thousands of inmates could be affected.

“The attorney general’s and the president’s actions here are trying to remedy an historic wrong that has detrimented many citizens of color,” says Harvard Law School Professor Ronald Sullivan, director of the Harvard Criminal Justice Institute.

The move is consistent with the constitutional principle that punishment should be proportionate to the seriousness of the offense, says Sullivan, who chaired President Obama’s criminal justice policy group during the then-senator’s campaign for president. 

Mr. Obama took his first steps to bring drug sentencing in line with the seriousness of the offense by signing the Fair Sentencing Act of 2010, which revamped mandatory sentencing requirements for cocaine-related crime.

Prior to the act’s passage, predominantly black drug offenders convicted of possessing crack cocaine received mandated sentences that were significantly harsher than those imposed on predominantly white drug offenders facing charges relating to the powdered form of the same drug. Punishments for possession of a given amount of crack were on a par with punishments for possession of 100 times that amount of powdered cocaine. Under the act, that ratio was reduced from 100:1 to 18:1 for newly convicted crack cocaine offenders.

The new clemency guidelines aim to extend that equity to inmates convicted prior to 2010, but only if they meet several guidelines released by the Department of Justice on Wednesday. To qualify for consideration, inmates must have served 10 years of their sentence, have no other significant criminal record, have no significant ties to gangs or organized crime, and have demonstrated good behavior during their incarceration.

No one knows exactly how many people will actually meet all of the criteria for consideration, but the number could easily reach the thousands, says American Civil Liberties Union Deputy Legal Director Vanita Gupta.

“I think [the clemency expansion] marks a turn away from the old business as usual in the federal criminal justice system,” Ms. Gupta says. “That said, it is not going alone to reduce the prison population, which is right now at a crisis point where the federal prison system is 35 to 40 percent over capacity.”

In July, Senator Dick Durbin (D) of Illinois Sen. Mike Lee (R) of Utah introduced the Smarter Sentencing Act, a bill that would shorten mandatory minimum sentences for drug offenders and grant judges more discretion when doling out punishment. The latest version of the bill passed the Senate Judiciary Committee in January and a similar bill has been referred to committee in the House of Representatives.

So far, the Smarter Sentencing Act has garnered considerable support from both sides of the aisle.

However, John Malcolm, a legal fellow at The Heritage Foundation, suggests that the Obama administration’s announcement on Wednesday could jeopardize that support and effectively “poison the well” of congressional bipartisanship.

“This is a very broad action, it’s very precipitously done. It is sort of thumbing his nose at Congress in the sense of trying to develop any sort of bipartisan solutions here,” Mr. Malcolm says.

The ACLU’s Gupta sees it differently.

Several states, including the predominantly red states Texas, South Carolina, and South Dakota, have taken steps to reduce the number of inmates in the state prison system.

“I think the president is feeling empowered to do this in part because there has been tremendous conservative leadership on this in the states for several years now,” Gupta says.