By Alan Bean
Could President Obama be on the verge of commuting the sentences of hundreds, even thousands of non-violent drug offenders sentenced under draconian, and now-defunct, mandatory minimum laws?
It appears so. Criminal justice reform advocates have wondered for years why a president who claims to be concerned about our seriously flawed system of justice has been less willing to pardon and commute sentences than hard-nosed conservatives like Ronald Reagan and George W. Bush, the former governor of tuff-on-crime Texas.
Part of the reason, as this Pro Publica article spells out, is that few petitions for clemency reach the president’s desk. Ronald Rodgers, who heads the Office of the Pardon Attorney, is an ex-military man and former federal prosecutor who has little sympathy for convicted felons.
But why hasn’t Obama sacked Rodgers long ago if the Pardon Attorney’s policies are incompatible with the president’s wishes? Lord knows, the president has taken a lot of heated criticism over this issue over the years.
It could also be argued that Democratic presidents are vulnerable to charges of being soft on crime; but in recent years, reform has become a bi-partisan issue. I suspect the libertarian wing of the Republican party has done more to further concrete reform legislation than purported liberals over the course of the last decade. So the fear-of-backlash theory doesn’t wash.
How can mere mortals understand the workings of a US president? It is like grappling with the problem of evil–the ways of the Almighty are inscrutable.
But, whatever the explanation, there are rumors afoot that Rodgers is on his way out and that the merciful rhetoric we have been hearing from Obama and his Attorney General Eric Holder in recent years may finally translate into action.
Let’s hope so. And if the mercy movement reaches folks like Ramsey Muniz, a 70 year-old civil rights activist who has spent 20 years in federal prisons on trumped up narcotics conspiracy charges, so much the better.
DUBLIN, Calif—Scrawled on the inside of Barbara Scrivner’s left arm is a primitive prison tattoo that says “Time Flies.”
If only that were the case.
For Scrivner, time has crawled, it’s dawdled, and on bad days, it’s felt like it’s stood completely still. She was 27 years old when she started serving a 30-year sentence in federal prison for selling a few ounces of methamphetamine. Now, 20 years later, she feels like she’s still living in the early ’90s—she’s never seen or touched a cellphone, she still listens to her favorite band, the Scorpions, and she carefully coats her eyelids in electric blue eye shadow in the morning.
It’s out there, outside of prison, where time flies.
On a sunny afternoon at a federal prison outside San Francisco last month, Scrivner nervously clutched a manila envelope full of photos of herself and her daughter that she keeps in her cell. As she displays the pictures, Scrivner’s daughter Alannah, who was just 2 years old when her mom was put away, changes from a redheaded, freckled young kid to a sullen teen to a struggling young mom. Scrivner changes in the photos, too. At first she’s a plump-cheeked beauty with chestnut-brown hair, then she’s a bleached-blonde woman in her early 30s, before becoming increasingly gaunt as the years grind on.
Today, she most resembles a 40-something high school volleyball coach, in her grey sweatshirt and neatly brushed-out dark bangs. But instead of a whistle around her neck, Barbara wears a large silver crucifix — though she describes her relationship with God as “complicated.”
“I believe in God,” Scrivner says. “I’m really mad with him.”
Her faith has helped her to try to make sense of what feels like an arbitrarily, even cruelly long sentence for her minor role helping her drug dealer husband. But 20 years behind bars has also tested that faith, and even caused her to question whether her life has any meaning or is worth living.
Scrivner is one of those rare prisoners who nearly everyone agrees is serving too much time for her crime. She started using drugs when she was just 8 years old, and moved on to meth as a freshman in high school, when she began dating the first of a long string of drug-using boyfriends. The drugs helped her escape the fog of depression that settled over her, in part created by the confused anguish she felt about being sexually abused as a child. By the time she was 20, she had been busted and served time in state prison for possessing meth — twice. That’s when she met her husband, a heroin addict and meth dealer who became her downfall. When his drug ring was broken up by the feds, Scrivner refused to testify against him or any other members. She was prosecuted for conspiracy and slammed with a 30-year mandatory minimum, despite her minor role as an occasional helper to her husband.
The judge who sentenced her to 30 years said his hands were tied. He was forced to lock her up for that long because of a now-defunct mandatory minimum-sentencing regime. If he heard her case today, he’d give her 10 or 15 years, he’s said. The prosecutors in the Portland, Ore., office that charged her agreed that if she were prosecuted today, she’d almost certainly get a sentence shorter than the 20 years she’s already served.
Thousands and thousands of people like Scrivner are serving punishingly long sentences in federal prison based on draconian policies that were a relic of the “tough on crime” antidrug laws of the ’80s and ’90s. Thirty years after skyrocketing urban violence and drug use sparked politicians to impose longer and longer sentences for drug crimes, America now incarcerates a higher rate of its population than any other country in the world. This dubious record has finally provoked a bipartisan backlash against such stiff penalties. The old laws are slowly being repealed.
Now, in his final years in office, Obama has trained his sights on prisoners like Scrivner, and wants to use his previously dormant pardon power as part of a larger strategy to restore fairness to the criminal-justice system. A senior administration official tells Yahoo News the president could grant clemency to “hundreds, perhaps thousands” of people locked up for nonviolent drug crimes by the time he leaves office — a stunning number that hasn’t been seen since Gerald Ford extended amnesty to Vietnam draft dodgers in the 1970s.
The scope of the new clemency initiative is so large that administration officials are preparing a series of personnel and process changes to help them manage the influx of petitions they expect Obama to approve. Among the changes is reforming the recently censured office within the Justice Department responsible for processing pardon petitions. Yahoo News has learned that the pardon attorney, Ronald Rodgers, who was criticized in a 2012 Internal watchdog report for mishandling a high-profile clemency petition, is likely to step down as part of that overhaul. Additional procedures for handling large numbers of clemency petitions could be announced as soon as this week, a senior administration official said, though it could take longer.
Scrivner’s case has been emblematic of the harsh and inflexible sentencing regimes of the past, as well as the challenges of reforming them now. At the beginning of 2010, a year into Barack Obama’s presidency, she applied for clemency. She had petitioned once before, in 2005, and was denied under George W. Bush. “I was very hopeful when President Obama was elected president, because I listened to his speeches about reform in the prisons and I just knew he’d be fair with clemencies,” she said.
But pinning her hopes on Obama turned out to be a dangerous thing.
“I’m tired, and if I don’t get my clemency I’m going to try to kill myself. Bottom line,” she says she told mental health professionals in the prison.
In November 2011, three years after Obama’s re-election, she got the form rejection letter from Washington. Heartbroken and hopeless, she tried to overdose on a bottle of migraine medication, and was sent to a special mental health prison in Texas to recuperate.
As a candidate and civil rights law professor, President Barack Obama had spoken out about the need to reform the criminal-justice system, and clearly felt passionately about entrenched racial biases that resulted in people being treated unfairly by the courts based solely on the color of their skin. But in his crowded first term, his only foray into criminal justice was encouraging lawmakers to pass the Fair Sentencing Act, which he signed in 2010, to reduce the sentencing disparity between crack and powder cocaine. The disparity had the effect of punishing black drug offenders far more harshly than white ones, and was widely accepted to be outdated and unfair. (Obama’s clemency push is meant to correct a broad set of inequities in the criminal-justice system, not just those that are racial. Scrivner, who might benefit from the program, is white.)
When it came to using his only unfettered presidential power — to pardon felons and to reduce the sentences of prisoners — Obama was incredibly stingy in his first term. Vanita Gupta, deputy legal director of the American Civil Liberties Union, calls his record on mercy “abysmal.” He pardoned just 22 people — fewer than any modern president — and commuted the sentence of just one. An applicant for commutation like Scrivner had just a 1-in-5,000 chance of getting a reduced sentence with Obama in his first term — compared with a 1-in-100 chance under Presidents Reagan and Clinton, according to an analysis by ProPublica.
According to former and current administration officials, the fault for this lay mostly at the feet of the Office of the Pardon Attorney, a small corner of the Justice Department that sifts through thousands of pardon and commutation petitions each year. The pardon attorney, former military judge Ronald Rodgers, sends his recommendations of whether or not to grant the petitions to the Deputy Attorney General’s office, which then sends them on to the White House. The pardon attorney was recommending that the president deny nearly every single petition for a pardon or a reduced sentence, according to one senior official in the Obama administration.
But even though the president was almost certainly aware that the pardon process was deeply flawed, he took no steps to fix it. In 2009, Obama’s top lawyer, Gregory Craig, drafted a proposal urging a more aggressive use of the presidential pardon and clemency power, and calling the current system broken. One of Craig’s recommendations was to take the pardon attorney’s office out of the Department of Justice entirely, so that the people vetting clemency petitions were not so close to the system that put prisoners away in the first place.
“I was of the belief that the current system for making pardon decisions was broken and it needed to be reformed,” Craig said. His suggested reforms weren’t implemented, and he left the White House that year.
Craig wasn’t the only one to raise concerns to the White House early in Obama’s tenure. A staffer in the pardon attorney’s office, Sam Morison, wrote to a West Wing attorney to blow the whistle on his own office shortly after Attorney General Eric Holder gave a speech in February 2009 saying America is a “nation of cowards” on race. The attorney general mentioned entrenched racial injustices in the criminal-justice system. In the spirit of that concern, Morison wrote, “I must bring to your attention the near total collapse of the pardon advisory process.” He added that the pardon attorney’s dysfunction disproportionately affected minorities, whose pardon petitions were far less likely to be approved than whites’ over the years. Morison said the desire to reject petitions was so institutionally ingrained at the office that the president would never effectively be able to use his pardon power. No one replied to his memo.
The spirit of criminal-justice reform that interested the president had not trickled down to the pardon attorney. “There’s all this bipartisan reform going on, but you have these people down there in their own little insular world and they just don’t get it,” one senior administration official said of the pardon attorney’s office.
Near the end of his first term, Obama expressed his frustration with how few positive clemency petitions were landing on his desk. He began meeting with White House Counsel Kathy Ruemmler and Holder to discuss how his pardon power could fit into his larger strategy of making the criminal-justice system fairer. (In mid-December, Holder followed up with a memo to Obama laying out his priorities for a second term in which he endorsed a more robust use of the pardon power as part of a broader criminal-justice reform initiative.) Over a series of five or 10 discussions, the president said he wanted more recommendations for pardons and commutations getting to his desk. The president complained that the pardon attorney’s office favored petitions from wealthy and connected people, who had good lawyers and knew how to game the system. The typical felon recommended for clemency by the pardon attorney was a hunter who wanted a pardon so that he could apply for a hunting license.
Meanwhile, the pardon attorney became the target of a scathing Justice Department Inspector General report in December 2012, furthering the suspicion in the White House that the culture of the office was to reflexively deny petitions. Rodgers fell “substantially short of the high standards to be expected of Department of Justice employees and of the duty he owed to the President of the United States,” the Inspector General said. The report concluded that Rodgers misrepresented the facts to the White House of a commutation request from Clarence Aaron, a man serving a triple life sentence for facilitating a drug deal. The pardon attorney’s advice to the president to deny the grant, even though the prosecutor and judge supported it, “was colored by his concern … that the White House might grant Aaron clemency presently and his desire that this not happen,” the report concluded.
A year later, and after prodding from the Obama administration, the pardon attorney’s office finally sent the president recommendations to commute the sentences of eight people serving life or near-life sentences for drug crimes, including Aaron. None of the eight people was politically connected or wealthy, traits that the president wants to avoid rewarding with his clemency power. A year after Rodgers was taken to task for denying Aaron’s petition, Obama freed Aaron and seven others from prison. According to Ruemmler, the commutations were a message that the president was serious about wanting to see more clemency recommendations.
Even with these eight, Obama has granted just 10 commutations out of 10,000 requests. He granted 52 of the 1,600 pardon requests that made it to his desk. But a new initiative he directed the Justice Department to begin this spring might increase that number by hundreds, or even thousands.
SCRIVNER’S SECOND CHANCE
Far away from the policy debates in Washington, Barbara Scrivner recovered from her suicide attempt in Texas and was sent back to the federal prison in Dublin, Calif. Scrivner told herself she’d never let herself get her hopes up again, and returned to her daily routine of working in the kitchens all day and then beading and playing cards after work to keep her mind off the sluggish passage of time.
But last February, the Justice Department announced a new push for clemency for nonviolent drug offenders — an initiative that came out of Obama’s meetings with Ruemmler and Holder. Deputy Attorney General Jim Cole solicited private defense attorneys around the country for more petitions for mercy from prisoners serving lengthy sentences for drug crimes that would most likely be prosecuted differently today, due to changes in the law. A group of advocates have created “Clemency Project 2014” to organize the petitions and send them to the Justice Department — they expect thousands to pour in.
Despite her trepidation about being let down again, one of those petitions is Scrivner’s.
Read more here.