In 2014, the Obama administration launched an initiative that was supposed to let up to 10,000 people out of prison — using the president's pardon power to shorten the prison terms of drug offenders sentenced under now-outdated laws.
Two years later, fewer than 200 people have actually been released. The administration has thousands more applications from prisoners to get through. And the attorney it hired to spearhead the initiative resigned in frustration.
"I am unable to carry out my job effectively, despite my intense efforts to do so," Leff wrote to Deputy Attorney General Sally Quillian Yates.
"The requests of thousands of petitioners seeking justice will lie unheard," she continued. "This is inconsistent with the mission and values to which I have dedicated my life, and inconsistent with what I believe the Department should represent."
How the "Clemency Project 2014" stretched into 2016
Granting commutations, or reductions to the criminal sentences of individual prisoners, is the most direct power the president has to reduce incarceration. And along with the power to pardon people who have completed their sentences, it's guaranteed in the Constitution. So it makes sense that a president who's talked about the need to reduce mass incarceration would use commutations as a tool.
In particular, Obama and his administration have been concerned about prisoners who were convicted of drug crimes during the height of the tough-on-crime era, and who, thanks to various changes to federal law and policy, would get shorter sentences if they'd committed their crimes today. As far as the administration is concerned, those people are in prison as an accident of history.
In spring 2014, the Obama administration announced that the Office of the Pardon Attorney would make a particular effort to help those people. It encouraged prisoners whose drug sentences would be shorter under current law (and who met other criteria) to apply for commutations. It encouraged lawyers to apply for a massive pro bono project, called the Clemency Project 2014, to help them with their applications.
Perhaps most importantly, it kicked out the old head of the Office of the Pardon Attorney (a George W. Bush–era holdover who'd essentially sabotaged some clemency applications) and installed Deborah Leff, who had a background in indigent defense.
By hiring Leff, the White House sent the message that it was ideologically committed to using the clemency power generously in Obama's final years. Attorney General Eric Holder estimated that up to 10,000 prisoners might be able to benefit.
Fast-forward to 2016, and the Office of the Pardon Attorney has certainly received 10,000 applications for commutation — but since October 2013 (six months before the clemency initiative started), it's only granted 186.
The process is opaque, so it's been hard for observers to know what the holdup is. But Leff's resignation letter offers a window into the process — and implies that the failures are both things that failed to happen and things that happened that shouldn't have.
How presidential initiatives fail: one part resources, one part personnel
It's worth reading Leff's resignation letter in full, if only as an example of what it looks like when government employees start getting real while still being polite. But stepping back, there are two big problems she identified that kept her from getting her job done:
- The pardon office didn't have the resources it needed to process all the applications it was receiving. Partly this is the fault of Congress, which responded to the Obama administration's moves in 2014 by trying to defund them. As a result, the office couldn't hire the extra attorneys it needed to process the new petitions coming in. That's what Leff's letter was referring to when she says that "the requests of thousands of petitioners seeking justice will lie unheard."
But this isn't entirely Congress's fault. Leff says she's been "instructed to set aside thousands of petitions for pardon and traditional commutation" in order to look at the applications the Obama administration asked prisoners to send in 2014. The letter makes it seem that the Obama administration was already dealing with a backlog when it solicited thousands of new applications, without a plan for how it was actually going to process either the new ones or the existing ones.
- The pardon attorney didn't have enough of a role in the pardon process. The president makes the final decision on all pardons and commutations. But before an application reaches the president's desk, a recommendation is made by the pardon attorney, then by the White House Counsel.
Leff, however, writes that she didn't have any access to the White House Counsel's office to explain her recommendations. Furthermore, she says, in an "increasing number of cases," the Department of Justice "reversed our recommendations." Given the stinginess of commutations so far, it's reasonable to assume this means the Department of Justice has been stepping in to recommend that commutations be denied, even when the pardon attorney's office says they should be granted.
Leff's successor, career prosecutor Robert Zausmer, will have access to the White House Counsel's office (though there's no sign the DOJ will stop reversing recommendations). But the fact that the woman who was hired because of her commitment to this issue is resigning because she wasn't trusted within the administration is a very bad sign.
The administration still has 10 months to fix this. While it's extremely unlikely it's going to approve 10,000 applications for commutations between now and January 2017, it's entirely plausible that it will approve more than the 186 it did over Leff's tenure. But right now, it looks like a case study in the ways a much-hyped initiative can fall short.