Attorney General Eric Holder Announces Sweeping Changes to Presidential Clemency

 In Criminal, Versus Texas Criminal Law Blog

Yesterday Attorney General Eric Holder announced the Department of Justice (DOJ) was preparing for a new approach to presidential clemency that could result in thousands of inmates with drug-related offenses qualifying for clemency this year.  Article II of the Constitution grants the President the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. The United States Supreme Court held that the presidential pardoning power is “unlimited” outside the realm of impeachment and “not subject to legislative control.”  Ex parte Garland, 71 U.S. 333, 334 (1866).

Attorney General Holder said the new approach to clemency should eliminate remaining disparity in federal sentencing following the 2010 enactment of the Fair Sentencing Act, which served to reduce differences in punishments for different types of cocaine violations. Prior to 2010, possession of crack cocaine received a harsher punishment than possession of powder cocaine. As a result, inmates sentenced before 2010 are serving substantially longer sentences than those sentenced after 2010.

In addition to reducing the disparity in sentences for crack cocaine and powder cocaine, the Fair Sentencing Act attempted to reduce the growing costs of housing non-violent offenders. As of 2012, the annual cost of housing a federal inmate was already over $26,000. There are presently 216,265 inmates in federal custody. Of these inmates 98,079 (just over 50%), are in custody for drug offenses. There are an estimated seven to ten thousand inmates still in custody after being sentenced under the old guidelines. As a result, applying for clemency under this Administration’s new approach could shorten the sentences for thousands of inmates and save taxpayers hundreds of thousands of dollars.

Attorney General Holder said the DOJ expected thousands of applications for clemency this year. Deputy Attorney General James Cole is set to announce the new criteria for clemency later this week. We can expect the limitations to include the following:

  1. Available to only low-level offenders without gang connections
  2. Available only for non-violent offenders;
  3. Available for individuals sentenced under old guidelines, if those guidelines resulted in disparate a sentence.

How does the clemency process work?

  1.    An application is made to the Office of the Pardon Attorney. Applications for clemency are not accepted until at least five years after the conviction. (28 C.F.R. Section 12).
  2.    The Office of the Pardon Attorney reviews the application and may investigate the application utilizing the resources of the Federal Bureau of Investigation.
  3.    The Office of the Pardon Attorney makes a recommendation to the Deputy Attorney General and White House counsel.
  4.   The Deputy Attorney General’s Office will make a recommendation to the President, who may choose to grant clemency.

For more information about clemency applications, call Varghese & Smith at 817-203-2220.

Image Courtesy of Victoria Pickering under the Creative Commons License

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