This blog urges the legal profession, both institutionally and individually, to step up now and play its role to help free thousands of nonviolent drug offenders given draconian federal sentences, and now potentially eligible for Presidential clemency. First the background.
As recently reported by the New York Times under the headline Obama Plans Broader Use of Clemency to Free Nonviolent Drug Offenders, the President is taking unprecedented steps to reverse at least some of these injustices. As you will recall, back in April 2014, DOJ announced a priority process for certain non-violent drug cases, and the profession formed a group to rise to te challenge.
In addition, the newly-formed Clemency Project 2014 (a non-government affiliated organization composed of the American Bar Association, the National Association of Criminal Defense Lawyers, the Federal Defenders, the American Civil Liberties Union, and Families Against Mandatory Minimums, as well as individuals active within those organizations and other lawyers wishing to participate in this volunteer effort) is helping to quickly and effectively identify appropriate candidates for this initiative. Inmates who appear to meet the six criteria will be offered the assistance of an experienced pro bono attorney through Clemency Project 2014 in preparing his or her application for clemency.
As of now, according to the Times,
The consortium, called Clemency Project 2014, now has more than 50 law firms, more than 20 law schools and more than 1,500 lawyers participating. But the process is burdensome as the volunteer lawyers try to dig out documents from more than a decade ago to satisfy the criteria. So far, they have screened out 13,000 inmates who did not meet the guidelines and sent just over 50 applications to the Justice Department. (I understand this number is now 15,000)
Obviously, the project is doing all it can to move this huge number of cases. Indeed, and this is cause for great celebration, the project has recruited more than any prior single pro bono project ever — over 1,500 attorneys. A touchstone for the future of pro bono in moments of opportunity and crisis.
But while I am full of praise and admiration for the individual 1,500, and for the participating organizations in the Project, I am a bit worried about whether the profession as a whole is doing enough.
Deborah Leff, the department’s pardon attorney, has likewise pressed lawyers representing candidates for clemency to hurry up and send more cases her way. “If there is one message I want you to take away today, it’s this: Sooner is better,” she told lawyers in a video seminar obtained by USA Today. “Delaying is not helpful.”
Moreover, in the Times, we hear of the 46 commutations, but:
[These] reflect just a small fraction of the more than 6,600 petitions submitted to the Justice Department since the administration announced its initiative last year. Some lawyers representing prisoners have complained that the review process has been overwhelmed. The administration has asked Congress for more money for lawyers, and said it was committed to issuing more commutations over the next 18 months.
Cynthia W. Roseberry, the project manager of Clemency Project 2014, a coalition of lawyers, law firms and law schools formed to answer the Justice Department’s call, said that she was heartened by Mr. Obama’s action, but that the government and the consortium “have quite a bit of work ahead.”
Indeed. Given the time DOJ inevitably takes to process cases, and the time it will take a president who has other responsibilities to make decisions, as a practical matter the is somewhere between 7 and 12 months to get all these cases to DOJ (perhaps less than 12). We do get a new president in nineteen months, so who knows what, if anything, will happen then. And this is a signature project for this administration.
The good news is that the project obtained the agreement of the Administrative Office of the Courts and the Bureau of Prisons to establish a process by which it will provide the pre-sentence report once the inmate has signed the consent. A court order is no longer required, although the judge is given a period of time to object prior to the release of the report. This is reasonable because of the possibility of inclusion of information about incrimination of others. This means that the process of data gathering has now been hugely streamlined, since often, but not always, the report also includes the needed information on any state convictions. (When it does not, getting the old usually non-digital state records is a major source of delay.)
There is also good news (good for the inmates, but meaning more work for the Project) that the recent 46 commutations have signaled that the President will be at least somewhat flexible on some of the eligibility criteria. One person who had served less than ten years was included, as was another with a firearms record which might otherwise have been deemed “violent.”
So, right now it is simple. The legal community must get the tens of thousands of cases reviewed and the eligible ones sent to DOJ. If we do not do so, after having promised to do so, the profession will in a certain sense be responsible for those still sitting in Federal prison who would otherwise be free.
So what is to be done?
Firstly, every attorney who possibly can should volunteer. I am told that it may take only an hour to do the initial screening, and that for many of the cases the record is very clear that the inmate falls well within the program, in that under current law the sentence would simply not have been imposed. So the process of writing up the petition is easy and short.
Moreover, there is back-up assistance for all attorneys who volunteer, and much time can be saved by those who have access to the services of paralegals.
The institutional question is more difficult. I suspect that the large legal professional organizations can and need to do more to affirmatively recruit the huge numbers that will be needed. I understand that the Criminal Justice Division of the ABA has been a stalwart supporter, but I am not sure that the larger organization has yet done as much as it might beyond exhortation. We all know that recruiting pro bono volunteers needs more than urging, it requires a structure of one-on-one follow up before people can be expected to respond, and this should be a high priority for an organization-wide initiative, and an organization with significant capacity in this area.
More is at stake than maybe 15,000 lives. A public failure will impact the credibility of the pro bono movement as a whole. What should be a triumph of the profession would become instead a collective fail and shame. As a general matter, some resist attempts to increase resources for access to justice with the claim that the bar should do more though pro bono. The answer, basically, is that we are doing all that we can. How will that claim look if the profession can not rise to this challenge and this commitment. Our credibility to urge steps towards access to justice will surely be weakened. (Something that state ATJ Commissions might think about when they consider if they can play a recruiting role.)
The profession and the organizations have put themselves on the line, which pro bono groups all too rarely do. For this, they are to be lauded. But that does not mean that they should not be held accountable. Similarly, the legal profession as a whole has put itself on the line. If we fail, the argument that lawyers inefficiencies are making us irrelevant will be hard to refute.
A couple of other thoughts: I hope that the project has a good system for tracking whether the assigned attorneys are in fact moving on their cases, an internal schedule of targets so it knows when there is a crisis, and a plan for getting the additional resources it may need
I very much hope that follow up blogs will have good news to report on process, numbers and outcomes. I very much hope that the final report, in late Jan 2017, will be that every case was appropriately and expeditiously considered, and that thousands of lives have been saved.
p.s. Here is an article by National Association of Criminal Defense Lawyers President Norman Reimer, that might be useful in spreading the word. Lets get to it.