Judicial Watch Sues Justice Department for Records on Obama’s Massive Effort to Grant Clemency to Criminals
Obama administration unprecedented clemency initiative could free more than 20,000 convicted felons from federal prisons
(Washington, DC) – Judicial Watch announced today that on June 23, 2014, it filed a Freedom of Information Act (FOIA) lawsuit against the Department of Justice (DOJ) to obtain records of communication between the office of Deputy Attorney General James Cole and Federal Defenders: the ACLU, FAMM, the ABA, and NACCL relating to the organizations’ “Clemency Project 2014” (Judicial Watch v. Department of Justice (No. 1:14-cv-01048)). The Clemency Project supports an initiative announced by the DOJ in April that would empower President Obama to grant mass clemency to as many as 20,000 convicted felons now serving time for drug-related sentences.
The FOIA lawsuit filed pursuant to a March 10, 2014, FOIA request seeks the following:
Any and all records of communications between employees or officials of the Office of Deputy Attorney General James Cole and representatives of the Federal Defenders, the ACLU, FAMM, the ABA, and NACDL related to, or in connection with or regarding the ‘Clemency Project 2014’ from January 1, 2014 to the present date.
On April 23, 2014, Deputy Attorney James Cole announced the Obama clemency initiative saying it would encourage federal inmates sentenced under what he termed “out-of-date laws” to petition to have their sentences “commuted, or reduced, by the President of the United States.” The clemency initiative is part of the Obama administration’s effort to end alleged racial discrimination in drug-related sentences. It started with the 2010 signing of the Fair Sentencing Act, which for the first time in decades relaxed drug-crime sentences. The measure severely weakened a decades-old law enacted during the crack cocaine epidemic that ravaged urban communities nationwide in the 1980s.
But the Fair Sentencing Act is not retroactive so the president launched his broad plan in April to help those sentenced under the older, stricter law that required mandatory prison for first-time offenders and a five-year sentence for trafficking offenses involving more than five grams of crack cocaine.
In announcing the administration’s clemency initiative, Cole acknowledged the role of “numerous groups and individual attorneys” who had been working with DOJ to free the convicted drug offenders:
In January, I gave a speech to the New York State Bar Association in which I called upon private attorneys to volunteer to assist potential candidates in assembling commutation petitions – ones which provide a focused presentation of the information the Department and the President will consider – in order to meaningfully evaluate whether a petitioner qualifies under this initiative. Since that time, dedicated and experienced criminal defense and nonprofit lawyers have responded to that call. These numerous groups and individual attorneys, who are calling themselves Clemency Project 2014, will be working with inmates who appear to meet the six criteria and request the assistance of a lawyer.
Among the groups that comprise Clemency Project 2014 are Federal Defenders, the American Civil Liberties Union (ACLU), Families Against Mandatory Minimums (FAMM), the American Bar Association (ABA), and the National Association of Criminal Defense Lawyers (NACDL). Judicial Watch has now filed suit for DOJ communications with each of the organizations.
Cole’s statement also included an announcement that DOJ Pardon Attorney Ron Rodgers had abruptly resigned his position. Though Cole characterized the Rodgers resignation as “in the tradition” of senior executive service attorneys who ask for reassignment, there was some indication that it may have come about as a result of Rodger’s disagreement with the Obama clemency initiative. Rodgers, who is known for his opposition to clemency requests, was replaced by Deborah Leff, who worked with the Access to Justice Initiative, a DOJ agency aiding low-income defendants in court. According to the liberal publication The American Prospect: “For those hoping to see a robust clemency push, her background bodes well.”
Historically, the power to reduce sentences and grant pardons has been used on a case-by-case basis. During his presidency, George W. Bush granted only 11 sentence commutations, while Bill Clinton granted a total of 61. Robert Weisberg, a law professor at Stanford University and co-director of the Stanford Criminal Justice Center, questions whether the Obama clemency move rightly falls under the Executive Branch, “Although it’s being done through the pardon power, it really is a kind of administrative action to make some of the newer laws retroactive…It’s almost as if they have to invent their own kind of shadow sentencing guidelines and in effect re-sentence certain people.”
Certain members of Congress are also balking at the Obama clemency initiative, with Senator Jeff Sessions (R-AL), stating, “While the pardon power has been interpreted broadly, the Framers never intended for it to be used in this manner. Rather, they intended for it to be used on a limited, case-by-case basis to correct injustice, not to be a tool for the administration to rewrite or even eliminate laws passed by Congress.”
“This is clearly yet another case of the president abusing his authority,” said Judicial Watch President Tom Fitton. “This is an example of the imperial presidency at its worst, and the American people have a right to know who is behind his arrant usurpation of power. And his Department of Justice’s outsourcing of its work to left-wing interest groups is yet another abuse that undermines accountability. So it is no surprise that the Department of Justice is now violating our nation’s primary open records law and refusing to divulge basic information about this controversial program.”