A Path Out Of Prison For Low-Level, Nonviolent Drug Offenders

By Liz Halloran

Published April 23, 2014 at 11:56 AM EDT

The new guidelines are part of the Obama administration's effort to address long mandatory minimum sentences. Antwain Black (left) was released early after sentencing laws were first eased in 2010.

Thousands of nonviolent drug offenders serving time in federal prison could be eligible to apply for early release under new clemency guidelines announced Wednesday by the Justice Department.

Details of the initiative, which would give President Obama more options under which he could grant clemency to drug offenders serving long prison sentences, were announced by Deputy Attorney General James Cole.

Cole listed six factors the Justice Department will use to "prioritize clemency applications" as part of the administration's effort to address long mandatory minimum sentences meted out after the crack-fueled crime wave of the 1980s. Those mandatory minimums were revised under the 2010 Fair Sentencing Act, designed to reduce the disparity between sentencing rules for crack and powder cocaine.

Inmates seeking clemency, he said, must meet the following criteria:

They are currently serving a federal prison sentence that is longer than current mandatory sentences for the same offense.

They are nonviolent, low-level offenders without "significant ties to large scale criminal organizations, gangs or cartels."

They have served at least 10 years of their sentence.

They do not have a "significant criminal history."

They have demonstrated good conduct in prison.

They have no history of violence before or during their current imprisonment.

"For our criminal justice system to be effective, it needs to not only be fair, but it also must be perceived as being fair," Cole said in a statement. "Older, stringent punishments that are out of line with sentences imposed under today's laws erode people's confidence in our criminal justice system, and I am confident that this initiative will go far to promote the most fundamental of American ideals — equal justice for all."

In comments Monday, Attorney General Eric Holder said the difference in prison terms being served by drug offenders sentenced before the 2010 act, and those sentenced after, is "simply not right."

Cole also announced Wednesday that Deborah Leff, acting senior counselor at the Justice Department's Access to Justice Initiative, will head the Office of the Pardon Attorney. She and her office will play a critical role in reviewing the expected onslaught of clemency petitions, and making recommendations to justice and administration officials.

The Access to Justice Initiative was established in 2010 to promote fairness in legal representation and sentencing "irrespective of wealth and status."

In the interest of providing a "thorough and rapid review" of the expected wave of new clemency applications, Cole said he has asked lawyers throughout the Justice Department to help review new petitions.

Inmates will be notified in coming days about the clemency program, and how to access pro bono lawyers through a working group called Clemency Project 2014. The group, formed after Cole asked lawyers to help with the clemency initiative, includes federal defenders as well as representatives from groups including the American Civil Liberties Union and the American Bar Association.

While the move has been hailed by groups working for fairness in sentencing as well as further changes to mandatory minimum drug sentences — including bipartisan efforts on Capitol Hill — some prosecutors have expressed skepticism about the clemency initiative.

"Americans want to rest assured knowing that 10 years means 10 years, and life in prison means life in prison," says Scott Burns, head of the National District Attorneys Association. "Prosecutors' fears are that our low level of serious crime in America will begin to rise — and nobody will monitor the cost of re-arresting and re-prosecuting offenders when they commit new crimes."