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What factors should be considered for clemency against drug charges?

April 21, 2014 at 6:17 PM EDT
The Justice Department announced it would expand the criteria used to decide which drug offenders are eligible for presidential clemency. Hundreds, if not thousands, could qualify for suspended sentences. Jeffrey Brown examines the new guidelines with Vanita Gupta of the American Civil Liberties Union and Bill McCollum, former attorney general of Florida.

GWEN IFILL: The Justice Department announced today it would expand the criteria used to decide which drug offenders are eligible for presidential clemency. Hundreds, if not thousands, of inmates could qualify for suspended sentences.

In a video released online, Attorney General Eric Holder said more details would be announced later this week.

ERIC HOLDER, Attorney General: Once these reforms go into effect, we expect to receive thousands of additional applications for clemency. And we at the Department of Justice will meet this need by assigning potentially dozens of lawyers with backgrounds in both prosecution and defense to review applications and provide the rigorous scrutiny that all clemency applications require.

GWEN IFILL: Jeffrey Brown picks up the story from there.

JEFFREY BROWN: And we look at the new guidelines now with Bill McCollum, former attorney general of Florida and Republican congressman from that state. He is now a lawyer in private practice in Washington. And Vanita Gupta, deputy legal director of the American Civil Liberties Union and director of the ACLU’s Center for Justice.

Well, Vanita Gupta, let me start with you.

What is the problem that is trying to be addressed here by the president and Attorney General Holder?

VANITA GUPTA, American Civil Liberties Union: Sure.

Well, since 1980, our federal prison system has grown by about 800 percent. And about half are serving time for drug offenses. The attorney general put it better than anyone, our nation’s top law enforcement officer, back in August, when he said too many people are serving too much time in our federal prison system for low-level offenses. It’s coming at a huge cost to taxpayers.

The federal prison system right now is about 35 to 40 percent overcrowded. And it’s over 70 percent of those serving time in our federal prisons are black and Hispanic. Our federal prison system has been grossly racially disproportionate in its impact. And so this is part of the problem that the attorney general is seeking to solve.

JEFFREY BROWN: Well, so, Bill McCollum, first, do you agree there is a problem, and, if so, is this the right approach, to expand the number of clemencies?

BILL MCCOLLUM, Former Attorney General, Florida: I think clemency is in order for certain cases right now that has not been done in the past, I think the federal government more than the states, where I served on Florida’s clemency board for a number of years as attorney general.

In the federal area, they have had very few. The president hasn’t pardoned very many people, hasn’t had very many commutations of sentences. And the minimum mandatory sentences of the past have led to certain cases which really do need to be addressed, where people were oversentenced.

And in 2010, those sentencing guidelines were reduced significantly, especially in the drug area. And if the procedures that the attorney general is going to follow will indeed track those changes, and let some people out of prison who have been in there a long time that shouldn’t be there, then I’m all for it.

On the other hand, I don’t want anybody to be left with a false impression. There are people who commit very serious drug-related crimes, trafficking in large quantities of drugs. And if you traffic in enough heroin, enough cocaine, you are killing a lot of people. And the mandatory sentencing is very valid for you, and you really shouldn’t have your sentence commuted.

So I believe that probably that General Holder will do the right thing, but we will have to wait and see.

JEFFREY BROWN: Well, so that is — Vanita Gupta, that really is the question of the criteria here. What is used, or what should be used to decide who is eligible?


The attorney general’s announcement today follows an announcement by the deputy attorney general back in February, who said that they were seeking increased commutation petitions for people who are serving very long sentences for minor, low-level crimes, who have good prison records, who have no affiliation to organized crime.

And so it is going to be a very highly screened, scrutinized process to select the right number of people. Unfortunately, in our federal system, there are hundreds, if not thousands, of people who actually fit that criteria. And so there is no shortage, but it is a very select group of people that the attorney general is targeting for commutation recommendations.

JEFFREY BROWN: Well, Bill McCollum, what concerns you, I guess, as you look at those numbers? Because they do use the — they do talk about using — looking at people for nonviolent crimes.

BILL MCCOLLUM: Well, nonviolent can include a drug trafficker who has not used a gun or a knife or anything. If you are a drug smuggler and you are shipping large quantities, a kilo of heroin, five kilos of cocaine, some huge quantity — and those are huge quantities of the drugs — in the United States and distributing them, then you may be doing it without violence.

And you have got to take that into account. It’s not just a question of violence. It’s a question of quantity and whether you are a dealer or whether you are a mule, as they used to call it when I was in Congress and chairing the Subcommittee on Crime, and you are just going along, so to speak, as a side player, or maybe you got caught up as the girlfriend, as some cases have demonstrated, of a drug dealer, and you didn’t turn state’s evidence, so the prosecutor decided they were going to throw the book at you.

Those kind of cases do need to be addressed. But the major drug traffickers shouldn’t. And the other thing about the federal system that’s very important that’s not addressed well at all — in many states, it isn’t either — and that’s rehabilitation, getting prisoners ready to go back out again into the streets and giving them job skills, giving them training, something that I have long advocated.

And it just is hearing — you know, falling on deaf ears many times in the federal prison system. So the return-to-prison rate is very high. And if we take a lot of these folks and put them out on the streets, then my concern in part is going to be, if they don’t have this just right, you’re going see people returning to prison, and committing other crimes and then returning to prison. It is a public safety issue then.

JEFFREY BROWN: All right, you want to respond to that?

VANITA GUPTA: Well, I think the reality is, the Department of Justice is going to be very carefully scrutinizing the kinds of petitions that Mr. McCollum just spoke about.

JEFFREY BROWN: I should say, they did say that they are going to put more attorneys assigned to this…

VANITA GUPTA: And they are…

JEFFREY BROWN: … which means a use of resources, which is another issue.

VANITA GUPTA: Absolutely. They’re going to have to, because the response is going to be overwhelming.

But, you know, the reality is mandatory sentencing has completely hamstrung the federal system. Federal judges have been unable to do their jobs in the system. And there is a real need for reform. So while we are very eagerly anticipating a very robust screening and scrutinizing process in this clemency announcement today, the reality is, we need to actually see action from Congress, and see Congress enact the Smarter Sentencing Act to really kind of enact the kinds of reforms that we’re seeing take place in red and blue states around the country, reforming mandatory minimum sentencing laws and keeping crime rates on the decline.

And so that’s going to necessarily be a part of the effort on criminal justice reform for the next few years.

JEFFREY BROWN: Well, what — Bill McCollum, do you have a sense now of the impact of this step? I mean, we’re talking about thousands of people potentially out there?

BILL MCCOLLUM: Well, I worry about the numbers.

We’re going to have to wait and see. But what I am concerned about is what I just heard her say, and that is the idea that you can take this example and suddenly say mandatory sentences all together ought to be done away with, and judges should have discretion. That is where we were in the ’80s and ’90s, when we put these in place.

And we were getting widely disparate sentences. We were getting really wild differences among the federal system particularly and judges in how they sentenced. While I think there have been abuses and some of the statutes need to have been adjusted, the idea of doing away from — away altogether of mandatory sentencing for major traffickers or for people who commit crimes with guns, like in my home state, where there is a 10-20 life precision for using a gun or committing — firing the gun in the commission of a crime — I think it would be a big mistake to do away with those.

We don’t need to go back to that system that failed before. We need to have determinate sentencing where we can and then adjust it so we don’t have harsh and wrong outcomes, and use the clemency laws where it is appropriate.


BILL MCCOLLUM: That is why they are there.

JEFFREY BROWN: All right, very brief response.

VANITA GUPTA: No, I don’t think that we’re actually that far off.

The reforms that are on the table really apply to nonviolent offenses, and that that is where judges need to have more discretion to be able to tailor sentences in nonviolent drug cases.

JEFFREY BROWN: OK, well, we will watch the next steps.

Vanita Gupta and Bill McCollum, thank you both very much.

VANITA GUPTA: Thank you.