Holder says too many people were sentenced 'under the old regime.' Holder: W.H. to widen drug clemency

President Barack Obama is preparing to make much broader use of his power to grant commutations to non-violent drug convicts who have served long sentences, Attorney General Eric Holder said in a video released Monday.

“The White House has indicated it wants to consider additional clemency applications, to restore a degree of justice, fairness, and proportionality for deserving individuals who do not pose a threat to public safety,” Holder said. “The Justice Department is committed to recommending as many qualified applicants as possible for reduced sentences.”


Holder said the new effort will focus on prisoners serving longer sentences than they would if they were facing justice now, but he did not say it was limited to that circumstance.

“There are still too many people in federal prison who were sentenced under the old regime — and who, as a result, will have to spend far more time in prison than they would if sentenced today for exactly the same crime,” the attorney general said.

Holder said the Justice Department is setting new criteria that will allow its Office of the Pardon Attorney to consider applications from a wider variety of convicts. In addition, the attorney general said that office’s staff would be bolstered, “potentially” with dozens of new attorneys to deal with the expected wave of applications.

So far, Obama has been extremely restrained in his use of the clemency powers, granting only ten commutations in more than five years in office. He has granted 52 pardons, though all went to convicts who had long since completed their sentences.

White House Press Secretary Jay Carney confirmed Monday that the Justice Department’s steps to invigorate the clemency process are being taken at Obama’s direction.

“The president wants to make sure that everyone has a fair shot under the clemency system,” Carney told reporters at a daily briefing. “He has asked the Department of Justice to set up a process aimed at ensuring that anyone who has a good case for commutation has their application seen and evaluated thoroughly.”

Holder began signaling more aggressive moves on commutation back in January, when he said the Justice Department would step up its efforts to seek clemency applications.

“One of the things we have to do is to make people who are incarcerated aware of that avenue,” Holder said in an appearance at the University of Virginia. “The president is willing to do these kinds of things…For him to look at them, we have to get them into the system, and to him.”

Holder also said Obama may be more open to such actions now than he was earlier in his presidency. “You can’t come in, I think, on Day One and do the kinds of things we’re now doing in Year 5. It’s a process,” the attorney general said in the same exchange. “You also have to build support for the kinds of things we want to do.”

At a congressional hearing earlier this month, Holder fielded complaints about the new commutation effort from a Republican who thought it too aggressive, and a Democrat who said it didn’t go far enough.

“Can you give me any precedent of previous attorney generals’ offices who have solicited petitions for pardons or clemency limited to a particular category of crime?” Rep. Randy Forbes (R-Va.) asked. He wondered why DOJ wasn’t seeking clemency applications from those convicted of “white-collar crime or campaign finance laws or a host of other areas that have been over-criminalized, all who also do the overcrowding that we’re very concerned with, but have a much lower recidivism rate.”

Holder, a former judge and chief federal prosecutor for Washington D.C., said the clemency effort was aimed specifically at sentences driven by laws setting mandatory minimums for drug crimes. “We’re dealing with a particular problem, and that is that I think the pendulum swung a little too far in the ’80s,” he said.

Rep. Steve Cohen (D-Tenn.) asked Holder whether he had considered a group commutation of all those sentenced under laws, since eased, which imposed dramatically greater penalties for offenses involving crack cocaine rather than powder.

“Well, I don’t think that we’d be looking for group commutation. We’d be looking for individuals who would be deserving of clemency or commutations, given the nature of their conduct, their lack of ties to violence or to drug-dealing gangs or cartels,” the attorney general said. “We’ve begun an initiative to identify additional clemency recipients. This is something that I know is important to the president. And we’re trying to come up with ways in which we can make individualized determinations about who should receive clemency.”

Last year, Holder issued new guidance that would effectively eliminate some mandatory minimums in some future federal drug cases by not including in charging papers the specific amount of drugs involved in a case. He has also supported legislation and sentencing guidelines to rein in those sentences.

Sen. Orrin Hatch (R-Utah) expressed concern that the drive Holder highlighted Monday might upset efforts to address the same issues through legislation.

”The President has authority to grant clemency to certain individuals who are no longer dangerous to the community. But I hope President Obama is not seeking to change sentencing policy unilaterally,” Hatch said. “Congress, not the President, has authority to make sentencing policy. He should continue to work with Congress rather than once again going it alone, and I’m willing to work with the President on these issues.”

Obama’s plan to extend commutations to larger numbers of drug convicts was discussed Monday in a Yahoo News story. However, a Justice Department official said the article went too far in reporting that Obama might grant thousands of commutations. Rather, officials are bracing for thousands of additional applications, the Holder aide said.

Carney also declined to predict or estimate how many commutations will eventually be granted.

“The number of commutations that are granted will depend entirely on the number of worthy candidates. How many deserving candidates are out there, I couldn’t begin to speculate,” Carney said Monday.

However, in a statement announcing eight commutations in December, Obama did say “thousands of inmates” were in jail for longer terms than they would have received under current law.

The Yahoo story also said an official many clemency advocates view as a roadblock, Pardon Attorney Ronald Rodgers, will soon leave his post. A Justice Department official declined to confirm Rodgers’s departure, but advocates noted that officials recently began urging lawyers for potential clemency advocates to reach out directly to staff in the office of Holder’s deputy, James Cole.

CORRECTION: An earlier version of this story used an inaccurate first name for Rodgers.

CORRECTION: Corrected by: Nick Gass @ 04/21/2014 03:25 PM CORRECTION: An earlier version of this story used an inaccurate first name for Rodgers.