Red tape, lack of resources slow Obama’s clemency efforts

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President Obama visits [housing at] the El Reno Federal Correctional Institution outside Oklahoma City in July 2015 [2016]. (Kevin Lamarque/Reuters)
Courts & Law
Red tape, lack of resources slow Obama's clemency efforts
A Justice Department attorney who was responsible for recommending pardons became so frustrated that she quit this year and wrote a scathing resignation letter.
[ Lack of resources, bureaucratic tangles have bogged down Obama's clemency efforts ]
By Sari Horwitz  • May 6 [2016] at 7:32 PM
https://www.washingtonpost.com/politics/courts_law/lack-of-resources-bureaucratic-tangles-have-bogged-down-obamas-clemency-efforts/2016/05/06/9271a73a-1202-11e6-93ae-50921721165d_story.html

  "One recent afternoon, President Obama sat down for lunch with seven
   former prisoners at the Washington restaurant and bookstore Busboys and
   Poets. He had just commuted the sentences of 61 inmates and was
   listening to the stories of other ex-offenders who had been granted
   clemency.
   
   Obama was clearly moved by what he heard.
   
   "It does not make sense for a nonviolent drug offender to be getting 20
   years, 30 years, in some cases life, in prison," Obama said at the
   lunch. "That's not serving anybody."
   
   In the waning months of his presidency, Obama has made commutations for
   nonviolent drug offenders a centerpiece of his effort to reform the
   country's criminal-justice system.
   
   But behind the scenes, the administration's highly touted clemency
   initiative has been mired in conflict and held up by a bureaucratic
   process that has been slow to move prisoner petitions to the
   president's desk.
   
   
   
   Obama has granted 306 commutations to federal prisoners — more than the
   past six presidents combined. But as of Friday, 9,115 commutation
   petitions were pending with little time left to review them. Of these,
   fewer than 2,000 appear to be eligible for the president's clemency
   program, according to a Justice Department official. Thousands more are
   still being reviewed by outside lawyers.
   
   From the beginning, the program was beset by problems, including a lack
   of resources and a cumbersome, multilevel review system. The U.S.
   pardon attorney at the Justice Department makes recommendations that
   move to the deputy attorney general, who reviews the cases and sends
   them to the White House counsel, who considers them again before
   choosing which ones go to Obama.
   
   The pardon attorney became so frustrated that she quit earlier this
   year and wrote a scathing resignation letter to Deputy Attorney General
   Sally Q. Yates. Deborah Leff said that despite her "intense efforts" to
   do her job, the Justice Department had "not fulfilled its commitment to
   provide the resources necessary for my office to make timely and
   thoughtful recommendations on clemency to the president."
   
   "The position in which my office has been placed, asking us to address
   the petitions of nearly 10,000 individuals with so few attorneys and
   support staff, means that the requests of thousands of petitioners
   seeking justice will lie unheard," Leff wrote.
   
   On Thursday, Obama commuted the sentences of 58 prisoners, his second
   round of clemencies in three months as the program has picked up steam.
   Administration officials say that they are addressing obstacles that
   have plagued the clemency initiative. The Justice Department has added
   lawyers to the pardon office. And White House Counsel Neil Eggleston
   has promised that many more petitions will be granted in the
   president's final eight months.
   
   "The President is deeply committed to the clemency initiative. That is
   evident not only by the historic number of commutations he's granted to
   date, but by his wholesale approach to revamping the way the government
   approaches commutations," White House spokeswoman Brandi Hoffine said
   in a statement. "That change helped spark a long overdue conversation
   about reforming our criminal justice system, which we hope will result
   in Congressional action so that many more deserving individuals can
   benefit from a second chance."

   Problems from the start
   
   In April 2014, Deputy Attorney General James Cole announced the
   administration's clemency initiative and a new pardon attorney, Leff, a
   former civil rights lawyer and acting head of the Justice Department's
   legal aid program, the Access to Justice initiative.
   
   
   
   Cole said he would "be personally involved in ensuring the pardon
   attorney's office has the resources needed to make timely and effective
   recommendations to the president."
   
   But attorneys who have worked with the Justice Department said there
   were never enough lawyers and support staffers to make the program
   work. Leff's office had 10 attorneys fielding thousands of petitions.
   
   Under criteria set out by then-Attorney General Eric H. Holder Jr.,
   low-level drug offenders are eligible for clemency if they have been in
   prison for at least 10 years; had no significant criminal history; have
   no connection to gangs, cartels or organized crime; have demonstrated
   good conduct in prison; and probably would receive a "substantially
   lower sentence" if convicted of the same offense today.
   
   An attorney who worked in the pardon office at the same time as Leff
   said that with petitions flooding in, it was extremely difficult with
   so few lawyers to sort out complicated drug cases and figure out
   whether they met the department's strict criteria.
   
   To get more help, Cole reached out to the private bar to set up another
   layer of lawyers to read applications.
   
   Outside lawyers formed an organization called Clemency Project 2014,
   which includes Families Against Mandatory Minimums, the American Civil
   Liberties Union, the American Bar Association and the National
   Association of Criminal Defense Lawyers.
   
   An army of about 4,000 volunteer lawyers from across the country signed
   up to help in what has become one of the largest pro bono efforts in
   the history of the American legal profession. Seventy large law firms,
   more than 500 small firms and solo practitioners, and 30 law schools
   are involved, according to Cynthia W. Roseberry, the project's manager.
   
   But it took nearly a year for the group to get organized and recruit
   and train lawyers, many of whom had no experience in criminal law.
   
   An overwhelming 36,000 inmates — about 17 percent of the federal prison
   population — filled out surveys asking for help from the Clemency
   Project.
   
   Even though the Justice Department had its own backlog, officials there
   privately complained that the outside Clemency Project lawyers, with
   their multiple levels of review, were taking too long to send more
   petitions.
   
   That in turn frustrated the Clemency Project attorneys, who said they
   were working carefully to locate old legal documents, contact
   prosecutors and judges, look at prison behavior records and try to get
   pre-sentencing reports and sentencing transcripts. At the same time,
   they have been weighing risks to public safety.
   
   "It's going to be really surprising if none of these people re-offend,
   and no one wants to be the person who said yes to the one person who
   re-offends in however many years," said one lawyer reviewing clemency
   applications who spoke on the condition of anonymity because of the
   sensitive nature of case deliberations.
   
   Turnover at Justice Dept.
   
   Meanwhile, Cole and Holder — the two men who had launched the clemency
   initiative — left the Justice Department in 2015.
   
   Yates, the career prosecutor and former U.S. attorney who became the
   new deputy attorney general, took over the supervision of clemency
   petitions.
   
   Over time, pardon attorney Leff's frustrations grew.
   
   Leff said Yates reversed many of her decisions and would not allow her
   to have any contact with the White House counsel.
   
   After 20 months, Leff abruptly resigned.
   
   "I have been deeply troubled by the decision to deny the Pardon
   Attorney all access to the Office of the White House Counsel, even to
   share the reasons for our determinations in the increasing number of
   cases where you have reversed our recommendations," Leff wrote in her
   resignation letter to Yates, which was first reported by USA Today.
   
   A Justice Department lawyer who worked with Leff said the pardon
   attorneys in prior administrations talked directly to the White House
   counsel to explain their recommendations.
   
   When she left, Leff released a statement saying that she has known
   Obama for more than 20 years: "His commitment to reinvigorating the
   clemency process — and the promise that holds for justice — can change
   the lives of a great many deserving people."
   
   Leff implied that Obama's clemency program was being thwarted by the
   Justice Department's process. "It is essential that this groundbreaking
   effort move ahead expeditiously and expand," she said.
   
   When asked by a reporter last month about the roadblocks Leff said she
   had faced, White House press secretary Josh Earnest replied: "I think
   there were a couple of concerns that she raised, and some of them were
   not inconsistent with concerns that we've had. The first is, we would
   like to see that unit of the Department of Justice be given more
   resources to do their work. And in the president's latest budget
   proposal, there's a significant increase proposed for the budget of
   that office."
   
   Some critics say the White House could have avoided many of these
   headaches by modeling the process after the way President Gerald Ford
   handled clemencies for Americans who had deserted the Army or failed to
   show up for the draft during the Vietnam War. With 600 people working
   on a special commission to review the cases, Ford granted 14,000
   clemencies in one year.
   
   Law professor Mark Osler, co-founder of New York University's Clemency
   Resource Center, said the initiative also might have gone more smoothly
   if Obama had moved the pardon attorney's office into the White House
   rather than keeping it under career prosecutors who may find it
   difficult to reverse other prosecutors' decisions.
   
   With Leff gone, in February the Justice Department named a new acting
   pardon attorney, longtime federal prosecutor Robert A. Zauzmer, who
   vowed to look at each of the thousands of petitions and "make sure an
   appropriate recommendation is made to the president."
   
   The Justice Department has given Zauzmer more resources — 10 additional
   prosecutors across the country have been detailed to work remotely with
   his office. Department officials are also allowing Zauzmer to have
   contact with the White House counsel.
   
   "The Justice Department has dedicated the maximum amount of resources
   allowed by Congress to the Office of the Pardon Attorney, and we have
   requested additional funds from Congress for each year the initiative
   has been in place," Justice Department spokeswoman Emily Pierce said in
   a statement.
   
   Principal Associate Deputy Attorney General Matthew Axelrod said Yates
   "is so passionate about clemency."
   
   "She takes a grocery bag of petitions home and spends her weekends
   reading them," Axelrod said. "There's no one who's more committed."
   
   Yates has put more pressure on the Clemency Project to speed up its
   work. Last week, she sent a letter to the volunteer attorneys saying,
   "Time is of the essence and the inmates who raised their hands for your
   assistance still need your help."
   
   James E. Felman, a lawyer and one of the leaders of the Clemency
   Project who visited prisons to help find inmates who meet the criteria,
   said the process is more streamlined. The coalition is sending batches
   of petitions to the pardon attorney twice a week and has sent 950
   petitions in all. There are still about 8,000 left to finish reviewing.
   "Time is running out, and if we don't get these petitions filed soon,
   there is no way that this president is going to ever see them," Felman
   said.
   
   Obama just commuted the sentences of 58 people. Here are their names.
     
  Sari Horwitz covers the Justice Department and criminal justice issues
   nationwide for The Washington Post, where she has been a reporter for
   30 years.   Follow @sarihorwitz "