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Pardons, commutations, and Obama's plans for clemency reform

The President of the United States has a few tools to let individual prisoners go free. But these tools are used very sparingly, and during the early years of the Obama administration they were barely used at all. Toward the end of his administration, President Obama attempted to roll out a new effort to expand clemency to more federal prisoners.

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

Pardons

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 are pardoned get those rights back.

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 finished serving their sentences.

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."

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.

From the Carter administration through April 2014, 1,638 petitioners were granted pardons. That's a 16 percent approval rate among all petitions processed by the Office of the Pardon Attorney. 60 percent of petitions were rejected outright; the other 24 percent were "closed without presidential action" (meaning there's no decision because the applicant stopped responding to the Justice Department, withdrew the application, or died).

How do commutations work?

The process for a commutation (reduction of a criminal sentence) is similar to that for a pardon. But the standards are a lot stricter, so it's a lot harder for a current prisoner to get a commutation than for an ex-prisoner to get a pardon.

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: from the Carter administration to April 2014, only 126 prisoners got their sentences commuted, at an approval rate of .5 percent. 74 percent of applications for commutation were rejected; the other 26 percent were closed administratively.

Clinton left office with a huge pardon controversy — and Bush changed the process as a result

Under the George W. Bush administration and the first years of the Obama administration, the president relied almost exclusively on the recommendations of the pardon attorney — rather than evaluating each case individually. President Bush started this practice in reaction to the controversial way President Clinton had 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.

The first several years of the Obama administration were marked by historically stingy pardon policy

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 later said that the president signed every Justice Department-recommended pardon that crossed his desk in the first two years of his presidency.

But the pardon attorney under Obama until 2014, a Bush appointee named Ronald Rodgers, recommended very few pardons for approval to begin with. through 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."

The Obama administration's attempts to restore clemency

After the discovery of Rodgers' actions in the Clarence Aaron case, the Obama administration started doing a lot more to grant pardons and commutations:

1) The administration replaced the head of the Office of the Pardon Attorney. In April 2014, Department of Justice official Deborah Leff was named the new head of the Office of the Pardon Attorney, replacing Ronald Rodgers. Leff had been running a federal initiative to improve "access to justice" to people who couldn’t afford lawyers — so her appointment was seen as an attempt to turn around the Office of the Pardon Attorney's record.

2) Obama started issuing more pardons and 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. Obama granted more petitions for pardons and commutations in December 2014, and again in March 2015.

3) The Justice Department issued a set of new criteria for commutation petitions. In April 2014, Deputy Attorney General James 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:

  • Nonviolent offenders "who would have received a substantially lower sentence if convicted of the same offense(s) today." Most of the prisoners to whom this would apply were drug offenders, who were convicted under laws that were later changed or according to federal standards that were later loosened.
  • People who had already served at least 10 years in prison.
  • People serving a sentence for their first crime, or without much criminal history.

The standards also blocked anyone with "significant ties" to gangs or cartels — which would exclude a lot of people. After Attorney General Holder issued a memo in 2013 setting a similar set of criteria to exempt people just being charged with drug crimes from mandatory minimums laws, one lawyer estimated that only 2 percent of drug offenders would benefit.

4) The Justice Department got more prisoners to petition for commutations. In January 2014, Deputy Attorney General James Cole called on bar associations around the country to help prisoners prepare applications, and a consortium of organizations called the Clemency Project 2014 stepped up to recruit and train volunteer lawyers. However, the Justice Department didn't get the money it requested for new staff in the Office of the Pardon Attorney to process those applications.

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