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Obama's new plan to cut prison sentences, explained

A prison guard waits to open the bars to the dorm at the minimum-security facility known as the Carol Vance Unit, March 24, 2001
A prison guard waits to open the bars to the dorm at the minimum-security facility known as the Carol Vance Unit, March 24, 2001
Joe Raedle/Newsletters/Getty

On April 23, the Department of Justice announced a new initiative to make it easier for certain prisoners to get their sentences reduced — through what are known as "commutations." According to Yahoo News, the administration expects this initiative will allow "hundreds, maybe thousands" of prisoners to get their sentences reduced.

Commutations aren't the same as pardons. Pardons are for people who have already been out of prison for several years, and who have rehabilitated themselves. Commutations, by contrast, are for people who are currently serving prison terms that the president deems unfairly harsh. But they both follow the same bureaucratic process, managed by the Office of the Pardon Attorney.

Obama's track record on clemency — which covers both pardons and commutations — has been relatively stingy so far. In his first term, he granted only 22 pardons and commuted only one sentence. (To put that in context, Ronald Reagan pardoned 213 people in his first term.) Recent investigations have suggested that the Office of the Pardon Attorney has been creating a bottleneck in the process by recommending that most applications for pardons or commutations be rejected.

At the same time, Obama has also acknowledged that there are key racial disparities in prison sentences and has begun taking steps to increase the number of people who apply for commutations. The April 23 announcement makes two changes:

1) The administration is issuing clear standards for which criminals should apply to get their sentences reduced, which will make it easier for lawyers to work with offenders to submit applications.

2) The administration is replacing the current head of the Office of the Pardon Attorney, who has been blamed for the slow rate of pardons and commutations in Obama’s first term.

What does it mean for someone to get a pardon or commutation?

Pardons. The Constitution gives the president extremely broad authority to issue pardons for federal crimes — basically, any pardon is fair game, as long as it doesn't get in the way of an impeachment process. Under current law, offenders are only allowed to apply for pardons five years after they have finishedserving their sentences.

A pardon doesn't make someone innocent of a crime, and it doesn't wipe the crime off the books entirely. What a pardon does do is restore the civil rights that most offenders lose after they're convicted of crimes. After they've been released from prison, most ex-felons don't have the right to vote; they can't run for office, own guns, or serve on juries; they can generally be discriminated against in employment; and they're subject to a host of extra restrictions that keep them from getting occupational licenses. Ex-offenders who get pardoned get those rights back.

Commutations. Offenders currently in prison can't apply for pardons because of the five-year rule. However, they are eligible for their sentences to be "commuted" — reduced. Getting a commutation doesn't carry the benefits after being released from jail that a pardon does.

The two processes are independent. However, both of them are managed through the Office of the Pardon Attorney, in the Department of Justice. Collectively, pardons and commutations, and the process for receiving them, are known as "clemency."

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Empty jail cells in Fremont, CA. Justin Sullivan/Getty

How do pardons work?

After offenders have been out of prison for at least five years, they are eligible to file a petition for a pardon.

That petition goes to the Office of the Pardon Attorney, which is part of the Department of Justice. The pardon attorney's office is responsible for processing the petition and evaluating the offender's case, considering factors like how well the applicant has behaved since being released from prison; whether the applicant shows remorse for the crime; and how badly the applicant needs the pardon for relief. Applicants can help their cases by submitting recommendations from the judge or prosecutor who originally convicted them, or from other public officials.

The pardon attorney's office then issues a recommendation to the president about whether the petition should be approved or denied. Ultimately, however, the president makes the final decision about the pardon.

Since the Carter administration, 1,638 petitioners have been granted pardons. That's a 16 percent approval rate among all petitions processed by the Office of the Pardon Attorney. 60 percent of petitions get rejected outright; the other 24 percent get "closed without presidential action" (meaning there's no decision because the applicant has gone AWOL, withdrawn the application, or died).

How do commutations work?

The process for a commutation (reduction of a criminal sentence) is similar to that of a pardon, but the bar for approval is much higher.

The government calls a commutation an "extraordinary remedy" — applicants are supposed to demonstrate that their sentences weren’t equitable or were overly severe, or that they're ill or elderly (and therefore unlikely to complete their sentences to begin with). Prisoners applying for commutations have to file their petitions while they're still in prison; if they're released before the commutation is processed, then their application is closed.

More people apply for commutations while they're in prison than apply for pardons after they've been released, especially since the Clinton administration. But commutations are harder to get: since Carter, only 126 prisoners have gotten their sentences commuted, at an approval rate of 5 percent. 76 percent of applications for commutation have been rejected; the other 26 percent were closed administratively.

How did Obama's predecessors handle pardons and commutations?

In recent years, presidents have started relying almost exclusively on the recommendations of their pardon attorney — rather than evaluating each case individually. President Bush started this practice, in reaction to the controversial way President Clinton used pardons at the very end of his presidency.

During the first seven years of his administration, President Clinton issued 178 pardons. During his very last day in office, he issued 140 pardons, in addition to several commutations. One of those pardons was given to Marc Rich, a wealthy businessman who'd been living in Switzerland ever since his conviction on tax evasion charges. (He was ordered to pay a $100 million fine when the pardon was granted.) Rich's ex-wife had been a Clinton donor, and critics pointed to the Rich pardon as evidence that the pardon process had been corrupted.

In reaction to the Rich scandal, George W. Bush decided that, to remain impartial, he was going to rely almost exclusively on the recommendations made by the pardon attorney's office (as former Bush officials told ProPublica). The result? The pardon approval rate fell from 28 percent under Clinton to 7 percent under Bush (comparable to George H. W. Bush's rate through his four years in office). However, this system was much more efficient: the number of "pending" petitions more than tripled between the time Clinton entered office and the time he left, but stayed relatively stable through Bush's two terms.

Why has Obama issued so few pardons and commutations so far?

President Obama, like George W. Bush, was uncomfortable with the way Clinton pardoned Marc Rich. So he chose to continue Bush's policy of simply trusting the pardon attorney's recommendations. Indeed, administration sources have said that the president signed every Justice Department-recommended pardon that crossed his desk in the first two years of his presidency.

But the current (now outgoing) pardon attorney, a Bush appointee named Ronald Rodgers, has recommended very few pardons for approval to begin with. So, as of April 2014, the administration approved only 2.6 percent of all pardon petitions that came in. Furthermore, the office denied more petitions than ever before — a record 872 pardon applications in 2011.

When it came to commuting prisoners' sentences, the office of the pardon attorney under Rodgers was even more stringent. Before December 2013, only one prisoner had received a commutation, while over 5,000 applications had been rejected. This was especially noticeable because the Obama administration had been pushing for policies to reduce racial disparities in drug sentencing — such as the disparity between sentences for crack cocaine and powder cocaine. Yet he wasn’t using the commutation power to reduce the sentences of people currently in jail under the laws he’d worked to change..

In 2012, ProPublica and the Washington Post reported that Rodgers had misrepresented an application for commutation in order to recommend that the application be denied. The applicant was Clarence Aaron, who was sentenced to three life sentences in 1993 for a role in a drug conspiracy. By 2008, both the US Attorney for the region and the judge in Aaron's case agreed that his sentence was overly harsh. But Rodgers recommended that Aaron's application be denied anyway, and his report to President Bush made the prosecutor and judge seem less sympathetic to Aaron than they really were.

The Inspector General, which investigated the pardon attorney's office over the case, found that Rodgers was worried "the White House might grant Aaron clemency presently" and so misrepresented the report. The Inspector General’s report concluded that Rodgers fell "substantially short of the high standards to be expected of Department of Justice employees and to the duty he owed to the President."

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Inmates upset about conditions in Dartmouth, MA. Melanie Stetson Freeman/Christian Science Monitor/Getty

What has the Obama administration done so far to increase commutations?

1) He’s issued a few more commutations, including Clarence Aaron's. On December 19, 2013, President Obama ordered commutations for nine prisoners. Each of them had served more than 15 years for nonviolent drug offenses, and each of them were serving longer sentences than they would serve if they had been sentenced today (due to subsequent changes in mandatory minimum sentencing laws). One of those prisoners was Clarence Aaron, who was released on April 17, 2014.

2) The Justice Department has pushed to get more prisoners to petition for commutations. In January 2014, Deputy Attorney General James Cole said that the Department of Justice was trying to find more prisoners like the eight whose sentences got commuted in December, and called on bar associations around the country to help prisoners prepare applications. To help process these applications, the Justice Department’s budget for 2015 included a request for seven new staffers in the Office of the Pardon Attorney, including four more attorneys.

3) The Justice Department has issued a set of new criteria for commutation petitions. Then, on April 23, 2014, Deputy Attorney General Cole unveiled a new set of standards for "prioritizing" clemency petitions. The guidelines called on prisoners who fit certain conditions to apply to get their sentences commuted. These standards provide a relatively clear rubric for the lawyers Cole called on in January to help find applicants and help them submit petitions.

4) The administration is replacing the head of the Office of the Pardon Attorney. Cole also announced that, to lead this initiative, Department of Justice official Deborah Leff would become the new head of the Office of the Pardon Attorney, replacing Ronald Rodgers. Leff has been running a federal initiative to improve "access to justice" to people who can’t afford lawyers — which might be a promise that the office is making a break from its track record of the last several years. On April 21, previewing the new initiative, Attorney General Eric Holder added that the Department of Justice would hire "potentially dozens" of lawyers to evaluate the flood of applications they anticipated would come in once the new standards were released.

Who will benefit from the new clemency procedures?

President Obama and Attorney General Holder have both indicated their biggest concern is reducing the sentences of people who were convicted under now-obsolete mandatory-minimum laws for drug offenses — so that the sentences of prisoners are in line with the ones they'd receive if convicted today.

The new guidelines laid out by Deputy Attorney General Cole are likely to apply to:

1) Nonviolent offenders, who have probably been convicted of drug crimes. The new standards specify that applicants should be serving time for a nonviolent crime. While they don’t specify that the crime had to be drug-related, they do restrict the standards to people who "would have received a substantially lower sentence if convicted of the same offense(s) today."

Most of the criminals to whom this would apply were drug offenders, who were convicted under laws that have since been changed — like the eight prisoners who got commutations in 2013, all of whom were convicted under obsolete crack-cocaine laws — or according to federal standards that have since been loosened.

2) People who have already served a lot of prison time. The new guidelines specify that applicants should have served "at least 10 years" in prison already; when Obama reduced the eight prisoners' sentences in 2013, he pointed out that all of them had served at least fifteen years in prison. The new clemency effort might also focus on people who've served for a long time already, so they can be released soon after their sentences are reduced.

3) People serving time for their first crime, or without much criminal history. The guidelines specify that applicants should "not have a significant criminal history." The administration's last effort to reduce federal sentences,in 2013, was also limited to people with very little or no criminal history, and ther efforts to reduce sentencing have also focused on first-time offenders, or people without long records. Limiting clemency to people without "significant" criminal history might prevent critics from accusing Obama of letting career criminals back on the street, but depending on how it is applied, might block prisoners from clemency based on minor offenses.

The new standards also block anyone with "significant ties" to gangs or cartels — another rule that could cut people out if applied too strictly, since figuring out who counts as "gang-affiliated" in criminal justice isn’t exactly a science.