The Final Word on Obama Clemency – Update for February 15, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


nothing170215You can pay your money and take your chance. From one angle, former President Barack Obama was the most merciful president in U.S. history, granting commutations to over 1,700 federal prisoners. From another, Obama squandered chances to make needed, permanent chances in the federal criminal justice system, choosing instead to sprinkle exhibitions of mercy one a few lucky inmates, done in such a way as to burnish Obama’s image rather than provide any responsible leadership.

Chief among our complaints was that even if you’re a clemency cheerleader, you have to be profoundly disappointed that Obama accomplished so little, and so much less than he and his minions confidently predicted in 2014. Former Attorney General and Obama buddy Eric Holder once speculated that the final number of clemency grants could reach 10,000 — one of every 19 federal prisoners.

It wasn’t for lack of raw material. Obama received more petitions for clemency than any recent president. And maybe that was the problem. In a recent interview, former White House Counsel Neil Eggleston revealed that Obama himself may have been the bottleneck:

I would give him memos on the cases, and he would spend a long time on each one. For a significant number, he was fine with my recommendation. For others, he would say: “Why are you recommending this person to me? Look at his conduct in prison, look at his prior convictions. I’m uncomfortable that this guy is going to take advantage of a second chance.”

Or the alternative: There were times when the deputy attorney general may have recommended in favor of a commutation, and I recommended against it, and [Obama] would call me in and ask: “Why don’t you agree with this one?” Or he’d say: “Look there’s this prior conviction, I’m troubled by it, can you get me more information?”

He was really into the details. There were two parts to the way he thought. The first was he just thought a lot of these sentences from the 90’s and 2000’s were excessive. But he also felt very strongly about the idea of rehabilitation and second chances. It wasn’t enough that the person had just gotten too lengthy a sentence. He also wanted make sure these were people who would benefit from a second chance. So if someone didn’t do any programming, got into fights, had a lot of infractions, etc., I think the president was concerned they would be unlikely to do anything but go back to their life of crime when they got out.

He felt strongly that this was a gift, and the gift had to be earned.

delegate170215Obama’s hagiographers will undoubtedly hail his obsession with the details of each of the 1,700+ commutations as evidence of the depth of commitment the President had to the commutation program, the extent of his compassion, the whatever. The plain fact is that America’s chief executive showed an unnatural preoccupation with the minutiae of commutation, hand-picking the winners and losers when his time should have been spent on larger matters. The boss should set out some broad principles – like the White House did with the Clemency Project – and then simply delegated authority to trusted staffers to carry it out.

For that matter, Eggleston’s offhand comment that Obama “felt strongly that this was a gift, and the gift had to be earned” reveals much. Holder told the American Bar Association in 2014 that the clemency initiative was intended to “correct the disparities” that were orphaned when the Fair Sentencing Act of 2010 was passed without a retroactivity provision. But Eggleston’s statement suggests that the President saw it as more Messianic, that he was empowered to magically change lives, and that he would bestow the gifts only on those he deemed worthy. Deciding who was worthy and who was not thus because as arbitrary as most other acts of God.

Eggleston seems defensive to claims of arbitrariness:

I think the thing the outside commentators didn’t really understand was that I had more information about these people than others did, including, frankly, their lawyers. I had records of how they performed in prison, and information about their prior crimes. And when people say there was arbitrariness it’s because they didn’t know factors that I knew.

All 1,700 went through me and the small group of lawyers underneath me. And ultimately I didn’t want people in jail thinking to themselves, ‘How can this be?’”

That, of course, is exactly what the folks in prison – including people with horrific drug sentences and excellent institutional records – are wondering. We had one unsuccessful inmate write to us that his disciplinary record was spotless, while another inmate there received work that Obama had commuted his sentence while siting in the Special Housing Unit because of a serious rules infraction.
The inmate who wrote to us asked “how is that right?” The answer, of course, came from a former Democratic president, Jimmy Carter, who famously said, “Life is unfair.”

clemencyjack161229The inmate’s mistake, of course, was in thinking that the clemency program was ever about justice and fairness for them. It wasn’t. It was about Obama and his legacy.

In that, the clemency program was quite successful.

While anecdotes do not statistics make, we cannot help but note that one of the carefully vetted commutations – Robert Martinez-Gil, whose life sentence was commuted because Obama found he had “turned [his] life around” – just got arrested in San Antonio with a kilo of cocaine powder. He was free for about 18 months. At minimum, this does not speak well for the superiority of Obama’s analytical prowess. 

The Marshall Report, The Man Who Ran Obama’s Clemency Machine (Feb. 14, 2017)

– Thomas L. Root


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