By Christopher Zoukis
Rather than slackening off as the Obama administration nears its final days, the clemency initiative announced in April 2014 for federal prisoners is picking up speed. From the Oct. 1 start of the current fiscal year until two days before Election Day, the president had issued 272 sentence commutations — nearly one-third of its total up to that time.
On election eve, the sentences of 72 inmates were commuted, followed by 79 more Nov. 22, bringing the total for the Obama administration to 1,023, exceeding the combined total for commutations issued by all 11 presidents from Harry Truman through George W. Bush. Of Obama’s clemency grants, thus far 342 have gone to inmates serving life sentences, and most recipients were serving lengthy sentences for nonviolent, primarily drug-related, offenses.
But what will happen to the commutation movement after Trump’s inauguration?
During the presidential campaign, Donald Trump generally sounded a get-tougher line on criminal law, but had relatively little to say on Obama’s clemency program. What he did say, however, sparked fears among advocates of decriminalizing or reducing penalties for drug offenses, or adopting new approaches to incarceration. For example, at a town hall event in New Hampshire two days before that state’s primary election, Trump said the approximately 6,000 inmates released after the Obama administration revised some drug sentencing criteria in 2015 would soon “be back selling drugs.” More recently, at an August event in Florida, the GOP candidate described some of those released under the clemency program as “bad dudes,” before sarcastically telling his audience to “sleep tight, folks.”
Another troubling sign to advocates of criminal justice revisions – such as those in a now-apparently stalled bill introduced in Congress last year with substantial bipartisan support – was the president-elect’s announcement he would nominate Alabama Sen. Jeff Sessions (R) as his Attorney General. Sessions has been a consistent proponent of strict drug penalties and an opponent of reducing mandatory minimum sentences.
Once in office, Trump cannot reverse clemency grants issued by Obama, but can, if he chooses, quickly reverse executive orders issued by his predecessor. In fact in several areas — such as executive orders for more lenient treatment of young persons not legally in this country, and their parents — Trump has explicitly promised he would do so. Some of the executive orders are already being halted by court orders. Obama administration executive actions taken through regulations, however, will likely have to go through a similar rulemaking process in order to be undone.
As for the clemency program, Obama’s White House counsel has said the president, even though a lame duck, will keep on granting clemencies in his final days in office. The Department of Justice official who announced the clemency program adds that the president is aware how deeply a clemency grant can improve the lives of not just inmates, but their families as well.
That is not enough, however, for some clemency advocates, who are publicly urging Obama to issue blanket clemency for whole classes of federal inmates – prominently, those who were already serving long sentences for crack cocaine offenses before 2010 — when Congress passed and Obama signed the Fair Sentencing Act, which brought penalties for crack more in line with those for powder cocaine, but was not retroactive.
Christopher Zoukis is the author of College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.com, PrisonEducation.com and PrisonLawBlog.com.