Given how difficult avoiding violence can be, the criteria for clemency sharply limit how many prisoners could be released. But they could still number in the thousands, many of whom are serving exceedingly long, even life, sentences. All told, there were, as of April 17, 216,265 prisoners held in the federal system.
Most inmates likely to be eligible under the criteria for clemency wound up imprisoned as a consequence of drug laws, the worst being the Anti-Drug Abuse Act of 1986. Among other outrageous things, that law assigned a 100:1 sentencing disparity to persons holding crack vs. powder cocaine. Getting caught and convicted for possessing five grams of crack put a person away for a five-year mandatory sentence, the same penalty meted out for getting convicted for having 500 grams of powder cocaine. The disparity had a tremendous negative impact on African Americans who, statistics show, are far more likely to be targeted by law enforcement for drug crimes.
Not just cocaine or other hard drugs, either. For instance, a study last year by the American Civil Liberties Union found that blacks are 3.73 times more likely to be arrested for marijuana possession than whites even though the rate of use is similar for both. But the cocaine law presented the most egregious disparity.
After more than a decade and a half of attempts, that law was superseded with the Fair Sentencing Act of 2010. It did away with the mandatory five-year sentence for cocaine possession and reduced the disparity between crack and powder cocaine from 100:1 to 18:1. An improvement, without a doubt, but as long as we're stuck with morally criminal, draconian drug laws there is no excuse for not making the ratio 1:1.
And no excuse for not making fair sentencing retroactive. There are, after all, thousands of people serving sentences under the old law who would have long since been released had they been convicted under the 2010 law. But such a change would take another act of Congress. That for now seems out of the question. The clemency initiative, part of Attorney General Eric Holder's Smart on Crime reform, will go part of the way to make sane what Congress will not.
Below the fold, you can read about Justice's clemency criteria and additional analysis.
Deputy A.G. Cole specified for the press the criteria by which clemency applications will be evaluated:
We are launching this clemency initiative in order to quickly and effectively identify appropriate candidates, candidates who have a clean prison record, do not present a threat to public safety, and were sentenced under out-of-date laws that have since been changed, and are no longer seen as appropriate. While those sentenced prior to the Fair Sentencing Act may be the most obvious candidates, this initiative is not limited to crack offenders. Rather, the initiative is open to candidates who meet six criteria: they must be (1) inmates who are currently serving a federal sentence in prison and, by operation of law, likely would have received a substantially lower sentence if convicted of the same offense today; (2) are non-violent, low-level offenders without significant ties to large-scale criminal organizations, gangs, or cartels; (3) have served at least 10 years of their sentence; (4) do not have a significant criminal history; (5) have demonstrated good conduct in prison; and (6) have no history of violence prior to or during their current term of imprisonment.Indeed, many inmates will not meet all six criteria. As noted earlier, avoiding violent conflict in prison for a decade is no small feat. Prisoners who merely defend themselves are not infrequently treated the same way school authorities often treat pupils caught fighting on the playground: They both are punished or the last person to throw a punch is. In elementary school, such behavior will be quickly forgotten if not repeated. But once it gets on your prison record, good luck trying to get it removed.
Identifying worthy candidates within our large prison population will be no easy feat. A good number of inmates will not meet the six criteria. But we are dedicating significant time and resources to ensure that all potentially eligible petitions are reviewed and then processed quickly to ensure timely justice.
The Justice Department plans to assign many attorneys to sift through the expected deluge of clemency applications. It would be encouraging to hear in plain, firm language that they won't simply be looking at prison paperwork in their first screening of potentially eligible inmates.
“For our criminal justice system to be effective, it needs to not only be fair; but it also must be perceived as being fair. Older, stringent punishments that are out of line with sentences imposed under today’s laws erode people’s confidence in our criminal justice system, and I am confident that this initiative will go far to promote the most fundamental of American ideals—equal justice under law.”The clemency initiative is, without doubt, a move in the right direction toward equal justice. But nobody should mistake it for anything close to a complete fix. It's clear that clemency will not be handed out to thousands of inmates who should never have been imprisoned in the first place. Of course, that could be said of every convict who is doing or has done time for most drug crimes that have not included violence.
We are, however, a long way from the day when sensible drug laws (and other laws) will make our prisons—federal and state—places to hold the far smaller number of people who really need to be locked up.