The Forgotten 2,785

When Attorney General Eric Holder announced that the administration’s disgraceful handling of clemency would not define the president’s last few days in office, there was applause. Sure, a bit of cynical snarling about the disingenuousness of finding religion in a lame duck term, but still. Anything that helped people (and even Jim Cole admitted that sentences were unduly severe, despite his role in advocating for them in the well) was better than nothing, a cynical ploy though it might be.

But at HuffPo, Megan Quattlebaum pours some cold water on the joyous festivities by reminding us that there are 2,785 applications for clemency, people who have damn good reason to seek the mercy of the executive, that are growing moldy while the DoJ and White House are throwing themselves a party over how merciful they are, at least in the press.

Late last month, the Department of Justice announced a laudable initiative to seek out nonviolent drug offenders with long prison sentences whom it will consider for clemency. The initiative is open to federal prisoners who meet six criteria, including that they have served at least ten years of their sentence and likely would have received a substantially lower sentence if convicted of the same offense today. The goal, according to President Obama, is to help “restor[e] fundamental ideals of justice and fairness” to our penal system by releasing those who “would have already served their time and paid their debt to society” had they been sentenced under current law.

This is a tremendous step forward, but it won’t help Michael Keating. He has only served seven and a half years in prison, not ten, as the initiative requires. And the law under which he was sentenced hasn’t changed — in Missouri, possession of the un-ingestible by-product of drug production is still punished just as harshly as possession of the same amount of marketable drugs. Michael’s case is emblematic of our need to go even further to right the wrongs of failed sentencing policies.

Without anyone knowing, the pardon attorney at the Department of Justice was replaced by a grocery clerk with a checklist, carefully crafted by a political pollster, so that rules were created about who is deserving of the President’s largesse, to be packaged and sold to prove the party possesses the right mix of mercy and toughness, which is apparently informed by a decade of prison.

But Michael Keating didn’t lose enough years of his life yet to be considered worthy.

[P]olice officers received information that meth was being made at Michael’s home. They searched his property and found a bucket of waste water in the backyard. Although the waste water contained less than a gram of methamphetamine, pursuant to the Eastern District of Missouri’s practice (which has been rejected by the majority of federal circuit courts and the U.S. Sentencing Commission) Michael, the sole defendant in the case, was charged as though the entire weight of the water in the bucket — more than 2,700 grams — was a marketable drug. He was sentenced to serve more than 11 years in federal prison.

To the casual observer, Keating’s case would appear perfectly teed up for clemency, a sentence based on the weight of waste water. A sentence even the commission wouldn’t require. But with less than 8 years in the can, and a checklist that demands at least 10, he doesn’t make the cut of government love.

[W]hile President Obama is right to search out new candidates for sentence mitigation, he shouldn’t neglect those meritorious individuals whose cases are already before him. Michael Keating’s application has been pending for over two years; it is one of the 2,785 sentence commutation petitions on which the Pardon Attorney has not yet acted. In addition to seeking out new submissions, the President should take a close look at those he has in hand.

Much as I can appreciate her youthful optimism, Megan Quattlebaum’s hope strikes me as too rosy by half.  The Office of Pardon Attorney has been moribund, to be kind. If there was an honest man in Congress, they would demand that the assistants give back their salary for having failed miserably to do their job.

And now, with this new list of criteria and the DoJ soliciting nice defendants upon whom to shower executive grace, what are the chances the Pardon Attorney will have the time to catch up on the work neglected since 2008?

With the opportunity to get a mention in the media about how merciful the government has suddenly become, the likelihood of finding the time and interesting to take Michael Keating’s outrageously conceived sentence into consideration is nearly non-existent, no matter how deserving he may be had there been any sincere concern for harsh and excessive sentences.

And even if Keating somehow manages to get monumentally lucky and have someone peruse his application in a moment of inexplicable zeal, that only leaves 2,784 other unfortunates to be ignored by the grocery clerks.

7 comments on “The Forgotten 2,785

  1. Marc R

    Like every criminal defense attorney, I have a couple clients who legitimately deserve clemency; from actual provable innocence without a forum (pro se exhaustion of claims by improperly stating the gist of the claim thus precluding it from being reheard) to “guilty” of technical violations (dirty urine, tardy to probation appointments) leading to no court jurisdiction to redress the unfair, interminable incarcerations. While there is a mailing address of where to send clemency applications/petitions, nobody responds. When you call you get the same person answering the phone repeating the same refrain: Your application is very important to us and will be reviewed in the order received…3 presidents and governors ago yet no substantive responses. The point of the rambling is there should be full-time “clemency officers” who read the applications and send memos to the executive for approval/dismissal rather than making it a special doorway for public interest friends.

    1. SHG Post author

      It reminds of the button on traffic signal poles around here, to push if you want the light to change so you can cross. Except the buttons aren’t connected to anything. Yet we push, as if maybe this time it will work, because there is nothing else we can do.

  2. SPO

    If one believes, as do I, in harsh sentences for serious crimes, a decent amount of clemency is, almost by definition, a necessary part of that belief.

    [Ed. Note: Balance deleted.]

  3. Alex Bunin

    I agree that the announced proposed guidelines for clemency are too strict and may result in too few deserving persons getting relief. However, the addition of Deborah Leff as the new Pardon Attorney is at least an acknowledgement that the system was broken. She is definitely more than a grocery clerk.

    1. SHG Post author

      The proof will be in the pudding. Main Justice has a way of turning anyone into a grocery clerk. Or worse.

      1. Alex Bunin

        I agree. I am the naysayer among many who think the project will result in hundreds or even thousands going free. However, I do not think the failure will be caused by Leff.

        1. SHG Post author

          It’s hard not to try to be encouraging. After all, don’t we all want it to work, no matter how cynical we are about it? But the criteria misses the point of clemency to begin with, and the lingering question is, what of the pending apps and all those who have been waiting since 2008 for someone to notice they exist?

          That’s what Leff is walking into. I don’t know if anybody is up to the job.

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