The U.S. pardon attorney who withheld key information from the president in a high profile clemency case was removed from office Wednesday as the Obama administration announced a new pardons policy that could potentially allow hundreds of federal inmates to be freed early from prison.
The announcement by Deputy Attorney General James Cole caps more than a year of internal reviews by the White House and the Justice Department aimed at seeing the president exercise his pardons authority more aggressively and more fairly. An investigative series in 2011 showed significant race disparity in the awarding of presidential pardons and efforts by the pardons office to squelch opportunities for federal inmates serving unfair or overly long sentences.
“She is a breath of fresh air in an office that is so stale,” said Julie Stewart, president of Families Against Mandatory Minimums, a nonpartisan advocacy group in Washington. “Debby cares deeply about the clemency process, about the fact that too many people are serving too much time for too little an offense,” Stewart said.
Leff replaces Ronald L. Rodgers, a former military judge and major drug crimes prosecutor who served since April, 2008.
A scathing 2012 inspector-general report, commissioned at the request of Congress following this story in The Washington Post, confirmed that Rodgers had withheld key facts from the White House in the 2008 clemency application of Clarence Aaron. Aaron was a first time offender serving a triple life sentence for a minor role in a drug case. He had overwhelming support for his application and a White House eager to see his release. But Rodgers blocked it.
When his actions became public, he was chastised by the Justice Department inspector-general. Rodgers engaged in “conduct that fell substantially short of the high standards expected of Department of Justice employees and the duty he owed the President of the United States,” Inspector General Michael Horowitz wrote.
Horowitz then called on Cole to determine “whether administrative action is appropriate” against Rodgers. It also urged the pardons office to begin reviewing files to locate “other instances” similar to the Aaron’s case “to ensure that the information provided to the White House,” in clemency decisions accurately reflects the facts.
In announcing new leadership for the pardons office Tuesday, Cole said Rodgers had “performed admirably” and “demonstrated dedication and integrity in his work on pardons and commutations.” Rodgers, who has refused to give public interviews, did not attend the news conference and Cole wouldn’t directly address a question about the inspector-general findings. Instead, he insisted that Rodgers, a member of the government’s senior executive service, had sought to move on to another job within the Justice Department for some time.
But the leadership change was significant. Under Rodgers and his predecessor, white applicants were nearly four times as likely to be pardoned than all minorities combined. African-Americans were the least likely to succeed. The pardons office reviews candidates eligible for a presidential pardon after completion of sentence and candidates eligible for commutation, which cuts short a sentence.
Even before the inspector-general report, the White House ordered the Bureau of Justice Statistics to review the findings. Examples from pardon office documents showed how qualified minority applicants were summarily denied, while white applicants with lengthier records, worse crimes and lighter sentences were awarded.
In recent years, relying on the recommendation of the pardon attorney, presidents have pardoned fewer and fewer people each year and released only a handful early from prison. President Obama has pardoned fewer individuals than any modern president.
That is set to change.
In December, Obama commuted Aaron‘s sentence, the prisoner whose release Rodgers had successfully blocked for years. Earlier this week, Attorney General Eric Holder held up Aaron as an example of the kinds of cases Obama would like to consider for commutations. Rodgers departure, and the arrival of new attorneys, will help facilitate that goal.
“The doors of the Office of the Pardon Attorney have been closed to petitioners for too long. This announcement signals a truly welcome change; the culture of ‘no’ that has dominated that office is being transformed,” Mary Price, FAMM’s General Counsel, said in a statement.
The new clemency policies come after Congress passed the sentencing reform act in 2010. There is growing bipartisan support in Congress to do away with the harsh mandatory minimum sentences born out of the 1980s-era War on Drugs. When Holder announced new policies last August to reduce harsh sentences, he found support among prominent Republicans.
Under new guidelines issued Tuesday, federal inmates who have served at least 10 years for a non-violent, first-time drug offense and have clean prison records will jump to the front of a long line of applicants. The department is specifically looking to consider early release for individuals sentenced for crack cocaine under old laws and whose sentences would be shorter if they were convicted today.
Marc Mauer, who runs the Sentencing Project in Washington, estimated that some 8,000 federal inmates could be retroactively affected by the changes to the sentencing laws on crack cocaine.
“But of this total, many have not yet served 10 years, so wouldn’t qualify,” Mauer said, adding that it would be difficult for many of those individuals to meet another criteria announced by Cole – that they demonstrate that they are “non-violent, low-level offenders without significant ties to large-scale criminal organizations, gangs, or cartels.”
“This is not to say that many drug sentences are not excessive, but it’s likely that prosecutors would argue that you don’t get a sentence of more than 10 years for just being a street-level seller,” Mauer said, adding “If I had to guess, I’d think the total is likely to be in the hundreds rather than thousands.”
To facilitate a new flood of expected applications, Leff will bring in attorneys on temporary assignment to work through the case load. The Obama administration has also requested budget increases to double the size of the office’s full time staff. Next week, the bureau of prisons will help identify qualifying inmates and the department, for the first time, will consult with federal defenders as well as prosecutors on meritorious cases.
Dafna Linzer is Managing Editor of msnbc.com. She is the author of “Shades of Mercy,” an investigative series and E-book on presidential pardons.
Dafna Linzer