NACDL - Inside NACDL: Clemency Project Redux: NACDL Renews Effort to Seek Freedom for the Imprisoned

Inside NACDL: Clemency Project Redux: NACDL Renews Effort to Seek Freedom for the Imprisoned

In August 2017, NACDL and Families Against Mandatory Minimums (FAMM) announced the launch of a state-focused clemency initiative, the NACDL/FAMM State Clemency Project. The program is designed to recruit, train, and provide resource support to pro bono attorneys who will assist state prisoners in submitting applications for sentence commutation.

Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.

NACDL is pleased to return to the clemency space. On August 21, 2017, NACDL and Families Against Mandatory Minimums (FAMM), with support from the Foundation for Criminal Justice (FCJ) and its generous donors, announced the launch of a major state-focused clemency initiative, the NACDL/FAMM State Clemency Project.¹ The program is designed to recruit, train, and provide resource support to pro bono attorneys who will assist state prisoners in submitting applications for sentence commutation. This new undertaking is a direct result of NACDL’s historic participation in the federal clemency project.

Exactly one year ago, in the fall of 2016, NACDL and its partners in Clemency Project 2014² (CP 2014) were scrambling to submit as many petitions as possible on behalf of inmates who appeared to qualify for the Obama administration’s clemency initiative. Without a public commitment from either major presidential candidate to continue the program, project participants, including nearly 4,000 volunteer lawyers from all realms of practice, assumed that the program would end when President Obama left office. And indeed it did. As previously noted in this column, 894 of the more than 1,700 commutations granted by the former president were supported by CP 2014.³ It is conservatively estimated that this effort saved more than 13,000 years of imprisonment and in excess of $430 million in incarceration costs. Most importantly, the gift of early release reunited thousands of family members.

But much more needs to be done. The Obama administration barely made a dent in the federal prison population. What’s more, only a small percentage of federally incarcerated individuals qualified under the administration’s exacting criteria. Indeed, CP 2014 transmitted petitions on behalf of 2,581 applicants, so at least from the Project’s perspective, almost 1,700 deserving applicants were either denied a commutation, or their petition was not acted upon by the Obama administration.

Thus, when the sun set on the Obama administration, it was more than a little sad and indescribably frustrating to shut down a program and a supporting infrastructure that demonstrated such an extraordinary capacity to give hope to the imprisoned. Outreach was undertaken to representatives of the new administration, but thus far to no avail. It is no secret that the current administration does not share the increasingly nonpartisan view that U.S. sentences are overly harsh. But hope springs eternal, and NACDL will never cease advocating both for federal sentencing reform and for a renewed commitment to a broad use of the clemency power.

At the same time, the current disinterest in redressing mass incarceration on the federal level afforded NACDL an opportunity to explore the possibility of attacking the problem on the state level. Of the more than two million individuals behind bars in this country, more than 1.3 million are serving state prison sentences.⁴ One indisputable conclusion emerged from the more than 36,000 applications submitted to CP 2014: no matter how long the sentence and no matter how extensive the prior history, people change. They mature. They grow. And even in the most inherently hostile environment of a penitentiary, people are capable of rehabilitation and reform. Clearly, many of the 1.3 million in state prisons can safely be released to their communities, ending the misery of incarceration and saving millions in unnecessary incarceration costs. If the nation’s governors, or other entities that are vested with the clemency power, were to recognize this and launch a clemency initiative, thousands could benefit.

But even with such a program, a prisoner’s prospects often depend upon skillful advocacy to make the case that he or she qualifies under whatever criteria are established. That is where the NACDL/FAMM State Clemency Project can play a vital role. Most incarcerated individuals cannot afford to retain counsel. Some form of court-appointed counsel represented the overwhelming majority of them, either through a defender office or an assigned or contract counsel. But court-appointed counsel are rarely compensated or even permitted to represent assigned clients in post-conviction proceedings, let alone for clemency applications. Thus, NACDL and the FCJ recognized that the very same infrastructure that supported CP 2014 could be adapted to a similar state program. To significantly increase the potential for helping applicants, and to join in a national advocacy effort to persuade states to consider a clemency initiative, NACDL reached out to FAMM to partner in this project. FAMM has long been singularly and effectively focused on reversing the nation’s obsession with harsh sentencing practices.

And, as luck would have it, as NACDL began early outreach to various states, it turned out that one governor, Andrew Cuomo of New York, had already launched a clemency program, but desperately needed volunteers to represent the applicants who sought to avail themselves of the initiative. Accordingly, after many weeks of working collaboratively with New York officials to develop streamlined processes, the project was officially launched with an announcement by Gov. Cuomo that New York will partner with the NACDL/FAMM State Clemency Project. In contrast to the Obama administration initiative, this program focuses primarily on rehabilitation, mitigation, and re-entry prospects.

This Project presents a new opportunity for NACDL members and others throughout the profession to help long-suffering individuals realize the dream of freedom. Because there are few automatically disqualifying criteria, effective advocacy can truly make a difference. Naturally, there is a pressing need for attorneys admitted in New York. But regardless of where attorneys are located, if they want to assist in representing an applicant, the Project will pair volunteers with New York attorneys. The need is tremendous and, once again, time is of the essence. The governor’s current term ends in January 2019 and, as history has shown, any attempt to predict the future is futile. To volunteer, please go to www.stateclemency.org or contact me directly.⁵ The entire profession can assist, but none are better equipped than criminal defense lawyers.

Notes

Press Release, NACDL, National Association of Criminal Defense Lawyers and Families Against Mandatory Minimums Announce NACDL/FAMM State Clemency Project; Collaborative Efforts Underway With the State of New York (Aug. 21, 2017), available at https://www.nacdl.org/State-Clemency-Project.
Clemency Project 2014 was an ad hoc partnership comprised of NACDL, the American Bar Association, the American Civil Liberties Union, Families Against Mandatory Minimums, and Federal Public and Community Defenders.
Norman L. Reimer, The Forgotten Souls, The Champion, March 2017 at 11.
https://www.prisonpolicy.org/reports/pie2017.html.
I can be reached at nreimer@nacdl.org or 202-465-7623.