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Dear Low Level, Non-Violent Drug Prisoners: Please File for Clemency

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Christian Martínez Kempin via Getty Images
Christian Martínez Kempin via Getty Images

Although 2014 is only weeks old, the Obama administration is making good on its promise to use the power of the executive branch to advance the President's policy agenda when Congress will not, or is slow to, act. Last week, the Office of the Attorney General issued a request to defense lawyers to find and reach out to federal prisoners incarcerated on drug charges and encourage them to apply for clemency.

Clemency, literally is an act of mercy granted by an executive in a government (in this case the President). Clemency can take one of three forms: a reprieve, a commutation of sentence, or a pardon. A reprieve is usually the staying of an execution; a pardon is forgiving the crime and its punishment; and commutation of a sentence means the reduction of sentence to a lesser one. In this case, the Attorney General is implying that prisoners would be expecting a commutation of their sentence or pardon.

The impetus behind this move appears to be a desire to spur the Senate to act on a bill that would make the Fair Sentencing Act, passed in 2010, retroactive. The Fair Sentencing Act reduced the 100 to one crack to cocaine sentencing difference to 18 to one. Because powder cocaine is primarily an "affluent white" drug and crack is a drug historically used by poorer African-Americans, the practical effect of the 100 to one ratio was to put a disproportional number of those African-Americans in prison for disproportionately longer time. As the Fair Sentencing Act was proactive, there were still approximately 30,000 individuals serving crack sentences as of the end of 2011.

Congress is considering a bill that would make the 2010 sentencing guidelines retroactive, which could allow thousands of these crack-prisoners to be eligible for reduced sentences. In fact, the Senate Judiciary Committee approved this bill that would allow prisoners sentenced under the old rules to ask judges grant them early release. The bill would also reduce some mandatory minimum sentences and give judges more discretion in setting prison terms.

Although the Attorney General's request to defense attorneys to apply for clemency is supported in essence by civil rights advocates as well as many defense attorneys, some groups representing prisoners' rights feel that this is going to lead to an overwhelming inundation of applications to the pardon unit of the Justice Department, which already faces a significant backlog. Many feel that the legislative solution would be the most efficient and practical.

Ironically, although the Judiciary Committee Bill has some supporters in both parties, one group that has questioned the wisdom of it comes from prosecutors in the Justice Department -- that is, Mr. Holder's own subordinates. The National Association of Assistant United States Attorneys sent the Attorney General's office a letter expressing its belief that "Mandatory minimum sentences are a critical tool in persuading defendants to cooperate, thereby enabling law enforcement to dismantle large drug organizations and violent gangs."

While the ultimate fate of the bill is uncertain, the Obama administration, in reaching out to defense attorney's and implying that clemency for low-level, non-violent drug offenders, is indicating that clemency now be the rule rather than the exception. Along with the Holder Memo, this action by the Attorney General is another important step in rectifying what we defense attorneys have realized for some time: The federal drug statutes and the attendant Guidelines enhancements are out of step with the reality of drug crimes that are actually prosecuted on daily basis in this country.