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In April 2014, the Obama Administration announced an initiative to greatly expand the use of the President’s clemency power. On December 18, 2105, the President granted clemency to 95 federal prisoners. That action brought to 171 the number of prisoners granted clemency under the initiative. An analysis of the 171 clemency grants shows intriguing patterns and also points out some troubling history.

Clemency Was Granted Primarily In Crack Cases

The clemency cases almost unanimously involved federal drug crimes. Only two clemency cases did not involve a federal drug offenses: one involved an armed bank robbery and one a felon-in-possession of a firearm. The remaining 169 cases broke down as follows:

 Clemency Cases Involving Drug Offenses

 
 Offense Conduct  # of Cases
 Cocaine  15
 Cocaine and firearm  2
 Cocaine and heroin  2
 Cocaine and marijuana  2


 Crack  90
 Crack and firearm  10
 Crack and cocaine  16
 Crack, cocaine, and firearm  3
 Crack and heroin  1
 Crack, heroin, and marijuana  1
 Crack and marijuana  2
 
 Marijuana  8
 Marijuana and firearm  1
 
 Methamphetamine  10
 Methamphetamine and firearm  6


Notably, 123 of the cases (72 percent) of these cases involved crack cocaine. The heavy skew toward drug cases and, within that category, crack cases should not be surprising. The primary goal of the clemency initiative was to retrofit sentences that would be lower if imposed today. Virtually the only area trending toward lower sentences is drug offenses. As discussed more fully in an August 2015 report by the U.S. Sentencing Commission, after many years of criticism, Congress enacted the Fair Sentencing Act of 2010 that reduced the disparity between mandatory sentences for crack and powder cocaine. Those reductions were made retroactive, which allowed many federal drug inmates to return to court and have their sentences reduced. The amount of any reduction was left to the discretion of the sentencing judges, some of whom were not very generous on resentencing. For example, in one of the clemency cases, the defendant’s sentence was reduced from 481 months to 480 months after the Fair Sentencing Act. Moreover, the judges’ ability to properly retrofit sentences was still limited because the sentences could not be reduced below the still-existing mandatory minimum sentences. Which leads to the next observation about the clemency grants . . . 

Clemency Was Used to Undo Mandatory Sentencing Enhancements

Of the 171 clemency cases, at least 126 (74 percent) involved a defendant who had been subjected to an enhanced mandatory minimum sentence.1 In 61 of those cases (36 percent), the defendant received a mandatory life sentence.

 Clemency Cases With Enhanced Mandatory Minimum Sentences
 
 Sentence (months)  # of cases
 180  2
 188  1
 216  1
 232  1
 240  40
 246  1
 262  6
 264  1
 283  1
 292  1
 300  2
 360  8
 420  1
 502  1
 600  1
 Life  61


Clearly, the President felt a sentencing correction was more appropriate in cases where the Justice Department’s unilateral filing of a statutory sentencing enhancement had limited the judge’s discretion.

Many people know that the federal drug laws include mandatory minimum sentences based on certain drug quantities. What is not as well known is that those mandatory minimum sentences can be unilaterally increased by the prosecutor if the defendant has a prior felony drug conviction, even one for simple possession. These mandatory sentencing enhancements arise under Title 21, United States Code, Section 851, and are therefore commonly called “851 enhancements.”

The effect of an 851 enhancement can be severe. For example, prior to 2010, a crack cocaine defendant whose current offense involved more than 50 grams of crack was subject to a 10-year mandatory minimum.2 If the defendant had one prior felony drug conviction, the Government could file an 851 enhancement that doubled the mandatory minimum to 20 years. If the defendant had two prior felony drug convictions, the 851 enhancement mandated a life sentence.

Historically, many low-level, non-violent offenders were subjected to this kind of extreme enhancement. A street-level crack dealer who had not previously served any significant jail sentence could suddenly subjected to a mandatory 20-year or life sentence.

Since the Sentencing Reform Act of 1986, Justice Department charging and sentencing policies have been designed to promote nationwide uniformity. Nevertheless, anecdotal evidence indicates that the practice of filing 851 enhancements has varied greatly among judicial districts and even among successive United States Attorneys in the same district. Frequently, particularly in larger and busier districts, the threat of an 851 enhancement was used to induce a drug defendant to plead guilty. In some districts, defendants who exercised their constitutional right to a jury trial were “punished” with an 851 enhancement. Other districts filed 851 enhancements as a matter of course in all drug cases. In 2010, Attorney General Holder promulgated guidance that limited the filing of 851 enhancements to the most severe cases, and clarified that these enhancements should not be used as retribution against a defendant who goes to trial. While this guidance is designed to reduce the number of 851 enhancements, it may not correct for the lack of uniformity.

Which brings us to a final observation . . .

Geographic Distribution

A disproportionate number of clemency cases came from judicial districts that account for a small percentage of the federal criminal cases. Clemency was granted to defendants from 51 of the 94 federal judicial districts:

Interestingly, over 1/3 (34 percent) of the clemency cases (58 of 171) came from only five districts:

 Judicial District  # of Cases
   
 Southern District of Iowa  8
 Western District of North Carolina  8
 Western District of Virginia  9
 Northern District of Florida  14
 Middle District of Florida  19


Of those, three did not contain a major urban population center: neither the Western District of Virginia, the Southern District of Iowa, nor the Northern District of Florida contains an urban center in the top 75 U.S. Based on historical DOJ data, these three districts collectively accounted for only 2 percent of the drug defendants charged, but were responsible for 15 percent of the clemency grants (31 total). In contrast, the judicial districts comprising the 10 largest U.S. population centers had a total of 37 clemency grants.3

Conclusion

The clemency data to date shows a strong skew toward crack cases, especially those involving statutory sentencing enhancements. It also suggests that “unfair” sentences were disproportionately imposed in a small number of rural judicial districts. As the Administration continues to review clemency requests, it will be interesting to see if these trends continue.



[1] In most cases, the existence of an 851 enhancement was indicated because the clemency defendant was sentenced to an enhanced period of supervised release (6, 8, or 10 years). For others that involved life sentences, the author reviewed the respective court dockets for evidence of an 851 enhancement. The author did not check the court docket for every clemency case, therefore, there may have been additional clemency cases where an 851 enhancement was filed.

[2] After the Fair Sentencing Act, the threshold for a 10 year mandatory minimum sentence in a federal crack case is now 280 grams.

[3] Eastern District of New York, Southern District of New York, District of New Jersey, Northern District of Illinois, Central District of California, Northern District of Texas, Eastern District of Pennsylvania, Southern District of Texas, District of Columbia, Eastern District of Virginia, District of Maryland, Southern District of Florida, Northern District of Georgia, District of Massachusetts, and District of New Hampshire.







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