The last few months in Federal sentencing have been rather monumental, at least in rhetorical terms. In 2010, as readers may recall, Congress enacted the Fair Sentencing Act, famous particularly for the diminished crack/powder cocaine sentence disparity. And just recently, the Department of Justice announces a clemency initiative that could have far-reaching consequences.

Last December, President Obama took steps toward addressing this situation by granting commutations to eight men and women who had each served more than 15 years in prison for crack cocaine offenses. For two of these individuals, it was the first conviction they’d ever received – yet, due to mandatory guidelines that were considered severe at the time, and are out of date today – they and four others had received life sentences. Since that time, the President has indicated that he wants to be able to consider additional, similar applications for commutation of sentence, to restore a degree of fairness and proportionality for deserving individuals. The Justice Department is committed to responding to the President’s directive by finding additional candidates who are similarly situated to those granted clemency last year, and recommending qualified applicants for reduced sentences.

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candidates who have a clean prison record, do not present a threat to public safety, and were sentenced under out-of-date laws that have since been changed, and are no longer seen as appropriate.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.

Check out this reaction from the Brennan Center:

“With this initiative, the president is making better use of his clemency powers to reduce our exploding prison population,” added Inimai Chettiar, director of the Brennan Center’s Justice Program. “This is an excellent use of executive power by the president. Additional opportunities to use clemency to reduce mass incarceration exist. Specifically, in addition to these important steps forward, the Justice Department should work to identify and seek out the estimated 5,000 Americans who languish in federal prison because they were sentenced before the 2010 Fair Sentencing Act reduced the unjust sentencing disparity between crack and powder cocaine crimes. It should then solicit, review, and expedite clemency applications from these prisoners, instead of waiting for them to identify themselves.”

We can’t help but agree, and add another comment about the difference between executive clemency and other ways of ending the war on drugs: Providing a legal solution that would be retroactive would be incredibly tricky. Many of the cases of people who might receive clemency under this new order are already final, in the sense that all direct appeals of them have been exhausted (or not pursued.) Reopening cases that are final can only occur under very, very rare circumstances. It is exactly in these sort of situations that clemency is a better solution than a necessity for the legal apparatus to admit its defeat and lose legitimacy.

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