The Washington Times-Herald

May 10, 2014

Prisoners hope Obama program will mean freedom

By Maureen Hayden CNHI Statehouse Bureau
The Washington Times-Herald

---- — INDIANAPOLIS — Within days of Attorney General Eric Holder’s announcement of a new clemency program for drug offenders, Monica Foster started getting letters and calls for help.

Foster, the chief federal public defender in the Southern District of Indiana, assembled a team to vet a wave of requests from inmates in the prison in Terre Haute and elsewhere.

“We expect to be deluged,” Foster said of the initiative, which has given hope to inmates sent to prison under tough federal drug laws.

One attorney already has assembled a list of 300 inmates who may qualify for clemency under criteria issued by the U.S. Justice Department.

And the team has started to dig into the case of a 46-year-old prisoner who’s been behind bars since he was 19 and caught selling crack cocaine.

Foster and her staff welcome the work.

“This is a huge milestone in justice,” she said. “I’ve been practicing law for 33 years, and before this attorney general, all we heard was ‘tough on crime, tough on crime, tough on crime.’ “

In late April, Holder announced the Justice Department is significantly expanding the criteria it uses to consider when to recommend clemency for President Obama’s review.

The push is part of the Obama administration’s policy to relieve overcrowding in federal prisons through what it calls a “Smart on Crime” initiative.

It also seeks to remedy what Holder has called antiquated and unfair penalties that were locked into federal law in the 1980s, at the height of the nation’s war on drugs.

The new clemency rules are designed for non-violent drug offenders who’ve served at least a decade in prison and who, if sentenced under today’s laws, would qualify for a lower sentence.

The program especially targets those sent to prison under mandatory crack-cocaine penalties rolled back by the federal Fair Sentencing Act in 2010. That law aimed to reduce the vast difference in sentencing for convictions for crack and powder cocaine – a gap that disproportionately affected black offenders. But the law wasn’t retroactive.

How many inmates qualify under the new clemency program is unknown. The Justice Department estimates 23,000 prisoners may meet the basic criteria.

Jerome Flynn, chief federal public defender in Indiana’s northern district, said the number may be lower.

The policy requires those seeking clemency to meet some criteria open to interpretation.

Offenders, for example, can’t have “significant” criminal history or “significant” ties to gangs.

“We don’t know yet what ‘significant’ means,” Flynn said.

Earlier this week, the federal Bureau of Prisons started notifying inmates, including in Terre Haute, of the new clemency criteria.

Inmates have the option of starting clemency requests by completing a five-page questionnaire to be vetted by a coalition of legal organizations that are part of the Clemency Project 2014. Those organizations are working with the Justice Department to provide free legal advice to prisoners. Private practice attorneys may be called to offer services pro bono, depending upon need.

The clemency process can be time-consuming and cumbersome. It requires attorneys to dig back into court records that may be decades old to put together an argument for Obama to make what is a discretionary decision.

Foster said there’s some urgency, as well.

“We’ve got to get this done before the president leaves office,” she said.