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Office of the Inspector General: Review of the Justice Department's Clemency Initiative, 2018

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Office of the Inspector General
U.S. Department of Justice
OVERSIGHT

INTEGRITY

GUIDANCE

Review of the Department’s
Clemency Initiative

Evaluation and Inspections Division 18-04

August 2018

Executive Summary
Review of the Department’s Clemency Initiative

Introduction

Results in Brief

While the power to grant clemency in federal cases
rests solely with the President, federal regulations
provide that clemency requests are directed to the U.S.
Department of Justice (Department, DOJ) and require
the Attorney General to make a recommendation to the
President on the merits of those requests. The Attorney
General has delegated this authority to the Office of the
Pardon Attorney (OPA), which, under the direction of
the Deputy Attorney General, reviews clemency
petitions and provides recommendations to the
President.

We found that the Department did not effectively plan,
implement, or manage the Initiative at the outset.
However, subsequent actions by Department leadership
enabled the Department to not only meet its goal of
making recommendations to the White House on all
drug petitions received by the deadline of August 31,
2016, but also to make recommendations on over
1,300 petitions received by OPA after the deadline. In
total, as a result of the Initiative, the Department made
recommendations to the White House on over
13,000 petitions, resulting in 1,696 inmates receiving
clemency.

In April 2014, the Department, at the behest of
President Barack Obama, announced the Clemency
Initiative (Initiative), which encouraged federal inmates
who would not pose a threat to public safety to petition
to have their sentences commuted, or reduced, by the
President. The Initiative specifically focused on nonviolent drug offenders who likely would have received
substantially lower sentences if convicted of the same
offense in April 2014, due to recent changes in
applicable federal laws. The Department’s
announcement stated that it would prioritize
consideration of petitions from inmates who met all six
specified criteria. As part of the Initiative, a nongovernmental effort by volunteer attorneys, called the
Clemency Project 2014 (CP 14), was formed to provide
“assistance in identifying appropriate clemency petitions
under this initiative.” Pursuant to the Initiative,
President Obama commuted the sentences of
1,696 inmates (including some inmates convicted of
non-drug offenses) and denied commutation for
approximately 12,000 others.

Our review identified several shortcomings in the
Department’s planning and implementation of the
Initiative. Because of philosophical differences between
how the Office of the Deputy Attorney General (ODAG)
and OPA viewed clemency, Department leadership did
not sufficiently involve OPA in the Initiative’s preannouncement planning. Moreover, despite the
Department’s stated commitment to provide OPA with
the necessary resources, the Department did not
sufficiently do so once the Initiative began.
The Department also did not effectively implement the
Initiative’s inmate survey, which was intended to help
the Department identify potentially meritorious clemency
petitioners. For example, rather than survey only those
inmates who likely met the Initiative’s six criteria, the
survey was sent to every Federal Bureau of Prisons
inmate. As a result, CP 14 and OPA received numerous
survey responses and petitions from inmates who clearly
did not meet the Initiative’s criteria, thereby delaying
consideration of potentially meritorious petitions. We
found other problems with the survey, resulting in OIG’s
issuance of a Management Advisory Memorandum to the
Department, which is attached as an appendix to this
report.

In September 2011, the Office of the Inspector General
(OIG) reported on OPA’s processes and procedures and
identified significant weaknesses in them. OIG initiated
this review to evaluate the Department’s clemency
process and handling of pardons since fiscal year 2014,
as well as the implementation and management of the
Initiative. While the Administration has changed since
we initiated this review, we believe the lessons learned
from the Department’s implementation of the Initiative
can assist it in handling its clemency process in the
future.

Further, the Department experienced challenges in
working with external stakeholders to implement the
Initiative. For example, the Department did not
anticipate that CP 14 attorneys would have challenges
in obtaining inmate Pre-sentence Investigation Reports
and, as a result, it took almost a year before the
Administrative Office of the U.S. Courts allowed CP 14
attorneys to access them, which hampered CP 14’s
ability to make timely eligibility determinations. We
also found that the Department and CP 14 had very
different perspectives regarding CP 14’s role in the
Initiative. In particular, while the Department expected
CP 14 to focus on identifying and submitting petitions
on behalf of inmates who were strong candidates for

i

Executive Summary
Review of the Department’s Clemency Initiative

13,892 recommendations provided by January 20,
2017.

clemency, CP 14 instead viewed its role as assisting and
advocating for any inmate who wished to file a petition.
As a result, the Department believes CP 14 took longer
to complete its work.

Although the Department made efforts to address OPA’s
backlog in 2015, significant strides were made during
the final year of the Initiative. Specifically, in February
2016, the Department reformed how it managed the
Initiative, which we believe expedited OPA’s processing
of petitions and substantially increased the number of
favorable recommendations sent to the White House.
In fact, during the final year of the Initiative, the
Department submitted 12,137 recommendations to the
White House. Among the most important changes was
the temporary increase in OPA’s staffing to meet the
demands of the Initiative. Additionally, acting Pardon
Attorney Robert Zauzmer prioritized the review of
petitions from inmates who were strong candidates for
clemency. Further, the Department streamlined its
review process by delegating authority to Zauzmer to
submit all non-favorable commutation
recommendations directly to the White House, without
ODAG review. Zauzmer also introduced a short-form
U.S. Attorney referral template to make it easier for
U.S. Attorneys to provide OPA their views on petitions
and to ensure they were providing the necessary
information. Moreover, the Department reinstituted its
review of pardon petitions, which had been suspended
for about 14 months, and implemented an expedited
pardon process that limited ODAG’s direct involvement.

Our review also identified several weaknesses in the
management of the Initiative in its early stages. For
example, there were differing views on how to interpret
the Initiative’s six criteria. The Initiative’s
announcement stated that the criteria would be used to
prioritize consideration of clemency petitions. However,
we were told by then Deputy Attorney General James
Cole that petitions from inmates who did not meet all
six criteria would not be considered. Yet, then Pardon
Attorney Deborah Leff directed OPA staff to review and
provide recommendations to ODAG on every clemency
petition, regardless of whether the inmates met all six
criteria. We found that OPA continued to view the
criteria as subjective even after being advised by ODAG
that it was applying the criteria strictly. Lastly,
although not one of the six criteria, the Administration
decided that non-citizens would not be considered for
clemency. This was a significant criterion given that, at
the time, approximately 25 percent of all federal
inmates were non-citizen; yet the Administration did
not publicly announce this decision and, as a result,
non-citizen inmates filed clemency petitions and OPA
spent time reviewing and processing them. While under
Deputy Attorney General Sally Yates, the Department
did recommend clemency for some non-citizens,
President Obama ultimately did not grant clemency to
any non-citizens under the Initiative.

In addition, the White House permitted Yates to apply
the Initiative’s criteria with more flexibility. This
decision enlarged the pool of eligible inmates and
resulted in a substantial increase in the number of
favorable recommendations sent to the White House.
For example, Yates allowed OPA to recommend
commutations for inmates who, at sentencing, had
received a variance from the otherwise applicable
sentencing guidelines range. Similarly, the Department
no longer automatically excluded from consideration
inmates who were eligible to obtain a sentence
reduction through the retroactive application of the U.S.
Sentencing Commission’s “Drugs Minus Two” guideline.
Further, in determining whether inmates met the
Initiative’s criteria for the minimum time served
(10 years), OPA started taking into account good time
credit. Additionally, despite what we were told was
previous opposition from the White House during Cole’s
tenure, the Department started recommending term
commutations to the White House, which, unlike typical
commutations, are sentence reductions that provide for
an earlier release from prison at some date in the future
rather than immediately. This change particularly
benefited inmates who had not yet served 10 years in
prison, even with good time credit.

Additionally, we found that U.S. Attorneys did not
always provide their views on clemency petitions to OPA
within 30 days, as required by Department policy. For
example, as of December 1, 2016, nearly 600 OPA
requests to U.S. Attorneys had been awaiting a
response for more than 30 days.
As a result of the initial planning, implementation, and
management challenges, by the end of 2015 both OPA
and ODAG had substantial backlogs of petitions pending
their respective consideration and very few petitions
with favorable recommendations had been sent to
President Obama. These challenges resulted in Cole
instructing OPA in September 2014 to suspend
consideration of pardon petitions in order to focus on
commutation petitions. By the end of 2015, President
Obama had issued 175 commutations under the
Initiative, compared to the total of 1,696 commutations
he issued by January 20, 2017. Moreover, by the end
of 2015, the Department had provided
recommendations to the White House on
1,755 commutation petitions, compared to the total of

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Executive Summary
Review of the Department’s Clemency Initiative

remains a question as to whether the Department
treated all petitions consistently over the course of the
Initiative.

As a result of these modifications, Zauzmer instituted
the Reconsideration Project, an OPA effort to determine
whether any of the over 3,000 inmate petitions that
received denial recommendations prior to February 1,
2016, would have instead received a favorable
recommendation under the Department’s more flexible
approach. OPA leadership reviewed all of the prior
denials, which Zauzmer told us resulted in an additional
20 to 30 inmates being granted clemency by President
Obama. However, due to time constraints, in many
instances OPA conducted summary reviews rather than
full re-reviews of these case files. As a result, there

On January 20, 2017, the Department discontinued the
Initiative and as a result, we do not make
recommendations to the Department to address the
issues we found throughout the course of our review.
Nevertheless, we believe that the lessons learned from
the Department’s implementation of the Initiative can
be of assistance to the Department in handling any
future clemency programs.

iii

TABLE OF CONTENTS
INTRODUCTION ............................................................................................. 1
Background .......................................................................................... 1
The Department’s Role in the Clemency Process ....................................... 2
The Department’s Clemency Initiative ..................................................... 4
Previous OIG Work Regarding Clemency .................................................. 8
Scope and Methodology of the OIG Review .............................................. 9
RESULTS OF THE REVIEW ............................................................................. 10
The Department Did Not Effectively Plan and Implement the
Clemency Initiative, but Subsequent Changes Made by Department
Leadership Enabled the Office of the Pardon Attorney to Substantially
Complete Its Work .............................................................................. 10
CONCLUSION ............................................................................................ 42
APPENDIX 1:

METHODOLOGY OF THE OIG REVIEW ........................................ 44

Standards .......................................................................................... 44
Data Analysis ..................................................................................... 44
Email and Document Analysis ............................................................... 46
Interviews .......................................................................................... 46
APPENDIX 2:

NOTICE TO INMATES: INITIATIVE ON EXECUTIVE CLEMENCY ..... 47

APPENDIX 3:

PARDON ATTORNEY DEBORAH LEFF’S RESIGNATION LETTER ...... 52

APPENDIX 4:

OIG’S MANAGEMENT ADVISORY MEMORANDUM TO THE
DEPARTMENT ......................................................................... 53

APPENDIX 5:

THE DEPARTMENT’S RESPONSE TO OIG’S MANAGEMENT
ADVISORY MEMORANDUM ....................................................... 60

APPENDIX 6:

THE DEPARTMENT’S RESPONSE TO THE DRAFT REPORT.............. 63

iv

INTRODUCTION
Background
Under the U.S. Constitution, individuals may petition the President “to grant
reprieves and pardons for offenses against the United States.”1 The authority to
grant clemency vests solely with the President and applies to federal criminal
offenses, which include all criminal violations of the U.S. Code and the District of
Columbia Code, as well as violations of the Uniform Code of Military Justice.2
Clemency may take several forms, depending on the petitioner’s sentence and
whether or not the petitioner has been released from prison. According to
28 C.F.R. §§ 1.1–1.3, clemency includes:


Pardon. A pardon is an indication of forgiveness and will restore certain
rights lost as a result of the pardoned offense. However, it will not erase or
expunge the record of conviction. According to 28 C.F.R. §§ 1.2, “no
petition for pardon should be filed until the expiration of a waiting period of
at least five years after the date of the release of the petitioner from
confinement or, in case no prison sentence was imposed, until the
expiration of a period of at least five years after the date of the conviction
of the petitioner. Generally, no petition should be submitted by a person
who is on probation, parole, or supervised release.”



Commutation of Sentence. Commutation of sentence reduces the
sentence being served or to be served, but it does not affect the conviction
itself.3 Generally, in order for a petition to be considered, the petitioner must
have begun serving his or her sentence and cannot be currently in the
process of challenging the conviction or sentence or have other available
relief.4

According to statistics on the website of the Office of the Pardon Attorney
(OPA), as of June 30, 2017, Presidents had granted 14,491 pardons and
6,670 commutations since fiscal year (FY) 1900.5 Of these, President Barack
1

Constitution of the United States, Article II, Section 2, Clause 1.

The President’s clemency authority does not extend to state criminal convictions. Clemency
for state criminal convictions falls under the authority of the Governor or other appropriate authorities
for the state in which the conviction occurred.
2

3 Commutation petitions can also include a request for (1) a full or partial remission of any
fines or restitution imposed by the court and (2) a reprieve, which delays the impending punishment
or sentence, including a temporary delay in the execution of capital punishment.
4

28 C.F.R. § 1.3.

5 DOJ OPA, “Clemency Statistics,” www.justice.gov/pardon/clemency-statistics, June 30, 2017
(accessed June 26, 2018). This number excludes persons granted clemency by proclamation, such as
certain Vietnam-era offenders granted clemency by President Jimmy Carter’s proclamation and
offenders granted clemency after action by President Gerald Ford’s Presidential Clemency Board. See
Appendix 1 for more information.

1

Obama granted 212 pardons and 1,715 commutations, or approximately 1 percent
of all pardons and 26 percent of all commutations granted by any U.S. President.
The increase in commutation grants can be attributed to the Clemency Initiative
(Initiative), which we discuss later in this section. See Figure 1 for the number of
pardons and commutations Presidents have granted since FY 1900.
Figure 1
Number of Presidential Pardons and Commutations since FY 19006
3,000

Number of Grants

2,500
2,000
1,500
1,000

500
0

Pardon Granted

Commutation Granted

Source: OIG analysis of OPA statistics

The Department’s Role in the Clemency Process
While the power to grant clemency rests exclusively with the President,
federal regulations provide that such petitions are to be submitted to OPA at the
U.S. Department of Justice (Department, DOJ). As set forth in 28 C.F.R. § 1.6, the
Attorney General is obligated to “review each petition and all pertinent information
developed by the investigation” and “determine whether the request for clemency is
of sufficient merit to warrant favorable action by the President.”7 Pursuant to the
authority under 28 C.F.R. § 1.9, the Attorney General has delegated this authority
The increase in the number of pardons during the Roosevelt Administration is the result of
the number of pardons President Franklin Roosevelt granted to individuals who evaded conscription
during World War II. See DOJ OPA, “Clemency Statistics.” See Appendix 1 for more information on
the data presented in this figure.
6

7

28 C.F.R. § 1.6.

2

to OPA, which, under the direction of the Deputy Attorney General, reviews
clemency petitions and provides recommendations for their disposition.
OPA’s staff consists of Attorney-Advisors, Paralegals, and administrative staff
who process and review clemency petitions, conduct necessary investigations, and
prepare recommendations.8 OPA’s review may include referrals to the Federal
Bureau of Investigation to conduct background investigations of petitioners, as well
as requests for additional information from other entities such as the Federal
Bureau of Prisons (BOP) and the U.S. Probation Office.9 For those clemency
petitions that are considered to have sufficient merit, OPA generally also requires
recommendations from the U.S. Attorney who prosecuted the defendant and
requests recommendations from the judge who sentenced the defendant. The U.S.
Attorneys’ Manual (USAM) provides that “the views of the United States Attorney
are given considerable weight in determining what recommendations the
Department should make to the President” regarding clemency petitions.10 In
addition to the Department’s recommendation, the U.S. Attorney’s
recommendations are also generally provided in each clemency petition presented
to the President.11
Once OPA completes its investigation and prepares a proposed
recommendation to the White House, staff in the Office of the Deputy Attorney
General (ODAG) assess the petition and provide it to the Deputy Attorney General.
If the Deputy Attorney General disagrees with OPA’s proposed recommendation,
the Deputy Attorney General can either request OPA to provide a different
recommendation based upon the Deputy Attorney General’s assessment or submit
to the White House both the Deputy Attorney General’s position and the Pardon
Attorney’s position on the petition. Thereafter, the Deputy Attorney General signs
and presents the recommendation to the White House Counsel, who reviews it prior
to presenting it to the President.12 After the President makes a final decision, the
White House notifies OPA of the decision and OPA completes the necessary
documentation and notifications. If a petitioner is denied clemency, he or she may
submit a new petition 1 year from the date of denial for commutation and 2 years
8

We further discuss OPA staffing later in this report.

9

28 C.F.R. § 1.6(a) and (b).

10 USAM § 1-2.111. See, generally, §§ 1-2.010–1-2.113, which define and explain the role of
U.S. Attorneys in executive clemency matters. According to USAM § 1-2.113, appropriate grounds for
considering commutation have traditionally included disparity or undue severity of sentence, critical
illness or old age, and meritorious service rendered to the government by the petitioner, e.g.,
cooperation with investigative or prosecutorial efforts that has not been adequately rewarded by other
official action. A combination of these and/or other equitable factors may also provide a basis for
recommending commutation in a particular case.
11

USAM § 1-2.111.

12 In addition to the summary U.S. Attorney’s recommendation, a summary of the
recommendation of the sentencing judge, if available, is also provided to the White House. In
February 2016, the Department began submitting both the Deputy Attorney General’s and OPA’s
recommendations to the President if their recommendations differed.

3

for a pardon.13 Figure 2 shows the key stakeholders involved in the pardon and
commutation process.
Figure 2
Key Stakeholders Involved in Pardon and Commutation Petitions
FBI, BOP,
U.S. Attorney,
etc.

Petitioner

Office of the
Pardon
Attorney

Office of the
Deputy
Attorney
General

White House
Counsel

President

Source: OIG analysis of the clemency process

The Department’s Clemency Initiative
In December 2013, President Barack Obama commuted the sentences of
eight inmates who had been sentenced to between 20 years and life in prison for
drug trafficking offenses involving, among other drugs, crack cocaine. In
announcing the commutations, President Obama referred to the enactment of the

See DOJ OPA, “Frequently Asked Questions,” www.justice.gov/pardon/frequently-askedquestions (accessed June 26, 2018).
13

4

Fair Sentencing Act of 2010,
which, he stated,
“dramatically narrowed the
disparity between penalties
for crack and powder
cocaine offenses” but then
noted that the law did not
apply to inmates sentenced
prior to its enactment,
including the eight inmates
whose sentences he
commuted that day.14
President Obama further
noted that if those inmates
had been sentenced after
the enactment of the Fair
Sentencing Act, “many of
them would have already
served their time and paid
their debt to society.”
Afterward, President
Obama decided to consider
more applications for
clemency from inmates who
were similarly situated. In

Clemency Initiative Timeline
2013
December: The President grants commutations to eight inmates.
2014
January: Deputy Attorney General James Cole makes remarks on
clemency to the New York Bar Association; CP 14 is formed.
April: The Department announces the Clemency Initiative;
Deborah Leff replaces Ronald Rodgers as Pardon Attorney.
May: The Department issues a “Notice to Inmates” and clemency
survey to inmates.
2015
April: Loretta Lynch replaces Eric Holder as Attorney General.
May: Sally Yates is confirmed as Deputy Attorney General,
replacing James Cole.
June: CP 14 negotiates with the Judicial Conference of the United
States to gain access to inmate Pre-sentence Investigation
Reports.
October: The inmate survey closes; CP 14 stops accepting
inmate requests for representation.
2016
January: Deborah Leff resigns as Pardon Attorney.
February: Assistant U.S. Attorney Robert Zauzmer is detailed to
OPA as acting Pardon Attorney.
September: The internal deadline for petitions to be submitted
to ODAG for consideration under the Initiative
2017
January: The Initiative ends; Zauzmer finishes his detail at OPA;
Lawrence Kupers remains Deputy Pardon Attorney.
Source: OIG analysis

14 President Barack Obama, “Statement by the President on Clemency,” December 19, 2013,
www.obamawhitehouse.archives.gov/the-press-office/2013/12/19/statement-president-clemency
(accessed June 26, 2018).

Prior to enactment of the Fair Sentencing Act, the quantity of cocaine needed to trigger a
mandatory minimum was 100 times greater than the quantity of crack cocaine needed to trigger the
same mandatory minimum penalty. This 100 to 1 ratio was widely criticized for lacking a scientific
basis or empirical support, including by the U.S. Sentencing Commission. The Fair Sentencing Act
reduced that ratio to 18 to 1. See U.S. Sentencing Commission, “2015 Report to the Congress:
Impact of the Fair Sentencing Act of 2010,” www.ussc.gov/research/congressional-reports/2015report-congress-impact-fair-sentencing-act-2010 (accessed June 26, 2018).
In 2011, the U.S. Sentencing Commission implemented the Fair Sentencing Act by amending
the Sentencing Guidelines to lower the offense levels assigned to the quantities of crack cocaine in its
drug quantity table. The Commission gave this change retroactive effect, allowing inmates whose
sentences would have been lower had the amended guideline been in effect at the time of their
sentencing to seek a corresponding sentencing reduction from a federal judge. The effective date of
this amendment was November 1, 2011. See U.S.S.C. § 1B1.10(a) and n.5.
Additionally, in 2014, the U.S. Sentencing Commission adopted an amendment that reduced
by two levels the Sentencing Guidelines offense levels assigned to the quantities in its drug quantity
table. The Commission gave this change retroactive effect, allowing inmates whose sentence would
have been lower had the amended guideline been in effect at the time of their sentencing to seek a
corresponding sentence reduction from a federal judge. This amendment, often referred to as the
“Drugs Minus Two” amendment, became effective November 1, 2014.

5

January 2014, in remarks before the New York Bar Association, then Deputy
Attorney General James Cole announced that the Department would begin to look
at potential candidates for commutation similar to the eight inmates whose
sentences the President had commuted and that the Department would seek
assistance from outside legal organizations to determine candidates’ eligibility
based on new, broader criteria.15
In April 2014, the Department officially announced the Clemency Initiative
and stated that it would focus on non-violent federal inmates who had received
harsh sentences that would not be imposed in 2014 and who would not pose a
threat to public safety if released.16 (See the text box above for the Initiative’s
timeline.) Specifically, the announcement stated that the Department had
developed the six criteria listed below that it would consider when reviewing and
expediting clemency petitions from federal inmates and would “prioritize clemency
applications from inmates who met all of the following factors:
1. They are currently serving a federal sentence in prison and, by
operation of law, likely would have received a substantially lower
sentence if convicted of the same offense(s) today;
2. They are non-violent, low level offenders without significant ties to
large scale criminal organizations, gangs or cartels;
3. They have served at least 10 years of their prison sentence;
4. They do not have a significant criminal history;
5. They have demonstrated good conduct in prison; and
6. They have no history of violence prior to or during their current term
of imprisonment.”17
In the announcement, the Department also stated that outside legal
organizations consisting of lawyers and advocates from the defense bar had formed
a group known as the Clemency Project 2014 (CP 14) to help potential candidates
in preparing commutation petitions.18 CP 14 consisted of members of the American
Bar Association, American Civil Liberties Union, Families Against Mandatory
Minimums, Federal Public and Community Defenders, and National Association of
Criminal Defense Lawyers. CP 14’s role in the Initiative was to “identify potential

James Cole, Prepared Remarks (presented at the New York State Bar Association Annual
Meeting, January 30, 2014, New York, N.Y.).
15

16

DOJ Press Release 14-419.

17

DOJ Press Release 14-419.

18

DOJ Press Release 14-419.

6

clemency petitioners and recruit and train volunteer lawyers to assist them in
securing clemency.”19
To assist CP 14 in identifying eligible candidates for commutation under the
Initiative’s criteria, the Department issued to all BOP inmates a “Notice to Inmates”
and a survey regarding the inmate’s background and criminal history.20 The Notice
to Inmates explained that inmate surveys, at the inmate’s request, would be
forwarded to CP 14 and that inmates could also apply for commutation on their own
behalf. In total, BOP received 42,808 completed surveys and forwarded
35,717 survey submissions to CP 14.21
In turn, CP 14 used the survey to determine the eligibility of potential
candidates for commutation under the Initiative. If an inmate appeared to be
eligible, CP 14 assigned the case to a pro bono attorney who intensively reviewed
the inmate’s court records, the Pre-sentence Investigation Report (PSR), and BOP
records regarding the inmate’s conduct while in prison. The attorney would then
submit a summary of the case to the CP 14 Screening Committee for review.22
Next, the CP 14 Steering Committee would review the case. If both CP 14
committees determined that an inmate was ineligible for commutation under the
Initiative, the inmate was told that he or she could still apply directly to OPA with or
without the assistance of CP 14 counsel.23 If the committees agreed that the case
was meritorious, the CP 14 attorney would draft a petition on behalf of the inmate

19 See Foundation of Criminal Justice, “Clemency Project 2014,”
www.nacdl.org/annualreport/2015/clemency (accessed June 26, 2018).
20 The Department provided electronic surveys to all BOP inmates through BOP’s TRULINCS
communications system, as well as in hard copy when TRULINCS was unavailable. The survey
consisted of 13 questions regarding the inmates’ offense(s) of conviction, criminal history, and
conduct while in prison (see Appendix 2).

Although the Notice to Inmates stated that the Initiative “is limited to” petitioners who met all
six of the clemency criteria, the April 2014 public announcement indicated only that the Department
would “prioritize” inmate applications that met all of the criteria. The latter construction in the public
announcement appears to imply that inmates did not have to meet all of the criteria but those who did
would be considered first.
The remaining 7,091 surveys were not forwarded to CP 14 because the inmates either
declined the assistance of CP 14 or did not respond to the question on the survey as to whether they
would like the assistance of CP 14.
21

As part of CP 14’s review process, its volunteer attorneys worked with BOP and the
Administrative Courts of the United States to obtain PSRs and inmate conduct reports. Later in this
report, we discuss how CP 14’s inability to receive PSRs for nearly a year and a half hampered its
ability to determine inmate eligibility and draft petitions.
22

23 As of October 2015, CP 14 discontinued accepting surveys from inmates. BOP provided
notice to all inmates through TRULINCS, stating that CP 14 would stop accepting surveys but that
inmates could still request commutation without assistance from CP 14. Until January 2017, CP 14
submitted petitions to OPA for inmates whose surveys it previously had received.

7

and forward it to OPA. Of the 35,717 surveys that BOP submitted to CP 14, CP 14
submitted 2,294 petitions for OPA’s consideration.24
Previous OIG Work Regarding Clemency
OIG, Audit of the Department of Justice Processing of Clemency Petitions, Audit
Report 11-45 (September 2011)
In September 2011, OIG released a report examining whether OPA had
established effective procedures for processing and reducing its substantial backlog
of clemency petitions and whether Department components had established
effective procedures to respond to OPA’s referrals for information in a timely
manner. OIG found that Department components had failed to respond to OPA
within the timeframe established by OPA, which significantly delayed the processing
of clemency petitions. Also, OPA did not follow up with the components on
outstanding referrals in a timely manner. Further, clemency petitions were under
ODAG review for nearly 5 months and under White House review for an additional
9 months before a final decision was made. OIG determined that each petition on
average took nearly 2 years from OPA’s initial review to the President’s final
decision, which contributed to the backlog of clemency petitions.
Our audit resulted in 10 recommendations to assist OPA, Department
components, and ODAG in processing clemency petitions in a more efficient
manner. All of those recommendations have since been closed.
OIG, Review of the Pardon Attorney’s Reconsideration of Clarence Aaron’s Petition
for Clemency, Oversight and Review Report (December 2012)
In an OIG review responding to a congressional request regarding allegations
related to the handling of the clemency petition of Clarence Aaron, a federal inmate
who was considered for a grant of clemency by President George W. Bush, we
determined that then Pardon Attorney Ronald Rodgers had inaccurately represented
to the White House the views of the U.S. Attorney’s Office that prosecuted Aaron
and had used ambiguous language in an email to the White House describing the
sentencing judge’s opinion regarding Aaron’s request for commutation.
OIG further found that ODAG officials, who had oversight of OPA, should
have reviewed and appropriately edited the Pardon Attorney’s email or,
alternatively, proposed drafting a new recommendation that more accurately stated
the facts for submission to the White House. Due to the Pardon Attorney’s actions,
the President did not have accurate information when he decided to deny Aaron’s
commutation request in 2008. We recommended that OPA review its files to locate
any other instances in which its office relied upon a supplementary email to the
24 According to Deputy Pardon Attorney Lawrence Kupers, OPA cannot determine how many
of those petitions were submitted exclusively under the Initiative (rather than as a traditional
application), and some of the inmates who submitted directly to OPA also had petitions submitted on
their behalf by CP 14.

8

White House Counsel’s Office, rather than a new “letter of advice” and, in the event
it found such situations, that those files be reviewed to ensure that the information
provided to the White House accurately reflected the information contained in any
communications from interested parties.25
Scope and Methodology of the OIG Review
This review assessed the Department’s clemency process since FY 2014, as
well as the implementation and management of the Clemency Initiative. The
review focused primarily on the commutation process, with a limited discussion of
the pardon process. Our fieldwork occurred from March 2016 to March 2017 and
consisted of document and policy reviews, email record reviews of former and
current OPA and ODAG officials, data analysis, and interviews. We also interviewed
former Department officials and staff from ODAG, OPA, and BOP, the Executive
Office for U.S. Attorneys, federal inmates, and volunteer attorneys affiliated with
CP 14. See Appendix 1 for more information about OIG’s methodology.

Aaron was one of the eight inmates granted clemency by President Obama in December
2013, which we discuss later in this report.
25

9

RESULTS OF THE REVIEW
The Department Did Not Effectively Plan and Implement the Clemency
Initiative, but Subsequent Changes Made by Department Leadership
Enabled the Office of the Pardon Attorney to Substantially Complete Its
Work
We found that, initially, the U.S. Department of Justice (Department, DOJ)
did not effectively plan, implement, and manage the Clemency Initiative
(Initiative). The Office of the Pardon Attorney (OPA) had minimal involvement in
planning the Initiative prior to its announcement and, due to logistical and resource
challenges, was ill equipped to handle the nearly 25,000 commutation petitions it
received. We found OPA’s limited involvement may have also been due to
philosophical differences between how the Office of the Deputy Attorney General
(ODAG) and OPA viewed clemency. We also found that the Department sent its
clemency survey to the entire Federal Bureau of Prisons (BOP) inmate population
and did not exclude inmates who were clearly ineligible for consideration under the
Initiative’s criteria as publicly announced by then Deputy Attorney General James
Cole in April 2014. As a result, the Clemency Project 2014 (CP 14) received a
significant number of survey responses from BOP inmates who were almost certain
to be found to be ineligible by the Department for clemency consideration.
Additionally, many of those ineligible inmates submitted clemency petitions,
straining OPA’s limited resources.
In addition, we found that the Department experienced challenges in working
with its internal and external stakeholders to implement the Initiative. For
instance, the Department failed to sufficiently engage, in advance of the Initiative’s
announcement, with the Administrative Office of the U.S. Courts (AOUSC) regarding
access for CP 14 volunteer attorneys to inmates’ Pre-sentence Investigation Reports
(PSR). As a result, for over a year after the Initiative was announced, CP 14
attorneys did not have access to PSRs, which hampered CP 14’s ability to make
inmate eligibility determinations and to prepare petitions. In addition, a difference
of opinion regarding CP 14’s role, as well as CP 14’s multi-layered review process,
caused delays in identifying potentially meritorious candidates.
Further, despite the time-sensitive nature of the Initiative, we found that
initially OPA did not effectively prioritize consideration of clemency petitions that
met the Initiative’s criteria. This was due, in part, to OPA viewing potentially
disqualifying conduct under the criteria in a more subjective manner than the
Department intended. We also found that, due to OPA’s limited resources and a
desire to prioritize commutation petitions, Department leadership directed former
Pardon Attorney Deborah Leff to prioritize commutation petitions over pardon
petitions and, for about 14 months during the Initiative, the Department suspended
pardon work altogether.
To address OPA’s reluctance to strictly apply the six criteria and prioritize
potentially favorable petitions, in 2015, a then-ODAG official developed a system of
prioritization to expedite the petition review process and personally went to OPA to
explain the system to staff. The goal of the system was for OPA to make
10

recommendations on the most favorable inmate petitions in the most efficient
manner. However, despite ODAG’s efforts, the Department struggled to submit
favorable recommendations to the White House as OPA continued to view the
Initiative’s criteria subjectively and CP 14 was not submitting favorable petitions as
quickly as the Department would have liked.
By the start of 2016, as a result of these problems that the Department was
having in managing the Initiative, we found that OPA had a substantial backlog of
clemency petitions and that it had provided the White House with relatively few
favorable clemency recommendations. In response, starting in February 2016, the
Department made a substantial number of changes in how it managed the
Initiative, which included applying the Initiative’s criteria with more flexibility. In
addition, the Department temporarily increased OPA’s staffing in 2016 and former
acting Pardon Attorney Robert Zauzmer implemented a number of reforms that
expedited the processing of clemency petitions. These reforms increased the pool
of eligible inmates and led to a dramatic increase in the number of clemency
petitions that OPA and the Department sent to the White House, including a
substantial increase in the number of favorable recommendations. We further
found that as a result of these program changes some inmates who applied for
clemency earlier in the process may have been at a disadvantage because they did
not receive the benefit of the more flexible interpretation of the criteria, despite
efforts by OPA to reconsider petitions that had previously been summarily denied.
We also found that OPA experienced difficulties in obtaining timely responses
from U.S. Attorneys on clemency petitions, which is required under Department
policy in order to aid the Department and the President in determining whether an
inmate’s release from prison presents a public safety risk. Finally, while President
Barack Obama granted an unprecedented number of commutations by the end of
his Administration, we found that he did not make a decision on all of the
recommendations the Department had submitted to the White House prior to
January 20, 2017.
The Department Did Not Involve OPA Effectively in Planning the Initiative Prior to
Its Announcement
We found that OPA, despite its crucial day-to-day operational role in
managing the Initiative, had minimal involvement in planning the Initiative prior to
its announcement and did not have the resources at the time of its announcement
to effectively process the large volume of commutation petitions it received in
response. Also, while the Department had projected the number of inmates who
might be eligible for clemency consideration, applying the Initiative’s six publicly
announced criteria, the Department ignored the criteria when it decided to send its
clemency survey to the entire BOP population, rather than just to eligible inmates.
Former OPA officials informed us that OPA had minimal involvement in the
planning of the Initiative. For example, former Pardon Attorney Ronald Rodgers
told us that OPA was not involved in the Initiative’s early planning discussions prior
to Cole’s January 2014 remarks before the New York Bar Association. He said that
ODAG did not understand the resource limitations within OPA and that there should
11

have been earlier discussions on how OPA would use its resources to fulfill the
Initiative’s mandate. Rodgers added that he was thinking about the logistics of the
Initiative in the months prior to the April 2014 announcement and did not think he
was “able to make [ODAG] understand the immensity of the logistics of the effort
that they were contemplating.… Not just in [OPA] pushing the paper but in us
reaching out to BOP for documents needed to evaluate the application.” We further
discuss OPA’s resource challenges below.
Cole, who served as Deputy Attorney General from December 2010 to
January 2015, confirmed that OPA was minimally involved in planning the Initiative,
which he said may have been due to philosophical differences between him and
OPA regarding what aspect of their work should be prioritized, pardons or
commutations. He said that, prior to the launch of the Initiative, OPA’s work
primarily involved reviewing pardon applications from citizens who had already
completed their sentence in the federal prison system. Cole stated that changing
OPA’s focus to commutations for those inmates still in BOP custody represented a
shift in its work and at first was a difficult transition for its staff to make. In
particular, Cole told us that his impression was that OPA viewed commutations as
extraordinary and thought that the judge had imposed a prison sentence so there
was nothing more to be done about it.
Cole categorized the types of candidates who he said deserved commutation
consideration into two groups: (1) inmates who had reformed themselves while in
prison and (2) inmates whose sentences were harsh and outdated. With regard to
an inmate in the second group, Cole stated that “if that person were sentenced
today, their sentence would be different, probably in some respects significantly
different, and that did not seem fair.”
With respect to pardons, Cole said that while OPA thought a person might
merit a pardon merely by being out of prison for 15 years without engaging in any
criminal activity, he viewed pardons as extraordinary and said that he believed an
applicant needed to do more than simply comply with the law after being released
from prison. This disagreement between Cole and OPA regarding pardons was
confirmed by former Deputy Pardon Attorney Helen Bollwerk, who was formally
appointed Deputy in OPA from September 2008 to January 2015. Bollwerk, who
served at OPA for 19 years, including Cole’s entire tenure as Deputy Attorney
General, told us that, during this period, OPA viewed pardons differently than ODAG
and that it was unclear what more pardon applicants needed to do to receive a
presidential act of mercy since they were living a responsible life and seeking
forgiveness. Bollwerk stated that the analysis that goes into determining an
applicant’s eligibility for pardon is not as routine as Cole characterized it and is not
merely a box-checking exercise.
We concluded that the philosophical disagreement between Deputy Attorney
General Cole and OPA about how the Department should assess and consider
commutation petitions was in large part responsible for the decision by the
Department to exclude OPA from its pre-announcement planning discussions
regarding the Initiative. We further found that this decision negatively impacted
OPA’s ability to effectively manage the Initiative.
12

OPA Was Not Provided With the Resources It Needed to Process the Large Volume
of Commutation Petitions in an Effective and Timely Manner
The Department’s April 2014 announcement of the Initiative stated, “The
Department of Justice…is committed to carrying out this important mission and has
pledged to provide the necessary resources to fulfill this goal expeditiously.”26 Leff,
however, said in her resignation letter that the Department did not fulfill its
commitment to provide the necessary resources for OPA to make “timely and
thoughtful recommendations on clemency.” Consistent with what both Rodgers and
Leff told us, we found that initially OPA did not have the resources it needed to
handle the large volume of petitions it received and that the Department did not
develop a mechanism to quickly provide resources to OPA once the Initiative was
launched.
OPA Staffing Levels and Workload
In January 2014, Rodgers emailed two ODAG officials, Cole’s Chief of Staff
and an official involved with the planning of the Initiative, alerting them to his
concern that OPA still had only 15 authorized positions, including 7 attorneys, which
was the same staffing level OPA had in the mid-1990s. Rodgers pointed out in his
email that in FY 2013 OPA received nearly four times as many petitions for
commutation than was typical during the mid-1990s. Rodgers further stated that
his staff was “already stretched beyond reasonable limits to address record
numbers of newly filed cases.” These concerns were echoed by Rodgers’ successor
as Pardon Attorney, Deborah Leff, in a July 2014 memorandum to officials in the
Department’s Justice Management Division (JMD).27 In that memorandum, Leff
reported that OPA’s staffing level had remained the same since 1996, when it was
processing approximately 90 percent fewer petitions than it had in 2014.
Based on our analysis of OPA data, we found that the number of
commutation petitions OPA received between FY 1990 and FY 2016 increased over
7,300 percent, from 148 petitions in FY 1990 to 11,028 petitions in FY 2016.
Indeed, the number of commutation petitions OPA received after the Initiative was
announced (from FY 2014 through January 2017) was more than in the previous
24 fiscal years combined. While OPA was facing this surge in clemency petitions,
the number of pardon petitions it received nearly doubled, from approximately
276 pardon petitions on average in the fiscal years prior to the Initiative’s launch to
approximately 521 pardon petitions, on average, each year from FY 2014 through
FY 2016. Figure 3 below shows the trends in pardon and commutation petitions
received from FY 1990 through January 2017.

26

DOJ Press Release 14-419.

27 JMD provides advice and assistance to senior Department management officials relating to
Department policy on budget and financial management; personnel management and training;
facilities; procurement; equal employment opportunity; information processing; records management;
security; and all other matters pertaining to organization, management, and administration.

13

Figure 3
Number of Pardon and Commutation Petitions Received
FY 1990–January 2017
12,000
10,000
8,000
6,000
4,000
2,000
0
1990 1992 1994 1996 1998 2000 2002 2004 2006 2008 2010 2012 2014 2016
Fiscal Years
Pardon Petitions Received

Commutation Petitions Received

Source: OIG analysis of OPA statistics

Due to OPA’s stagnant staffing levels and the historic volume of commutation
petitions it received from FY 2014 through FY 2016, we concluded that OPA did not
have sufficient staff to effectively process these petitions during this time period.
We further found that these resource limitations resulted in ODAG officials directing
OPA in FY 2014 to focus all of its resources on commutation petitions and to stop
working on pardon petitions. We discuss the review of pardon petitions later in this
report.
Former and current Department officials told us that external constraints
limited the Department’s ability to provide OPA with more funding to support
additional hiring. Former Deputy Attorney General Cole told us that the
Department’s hands were tied because both the budget sequestration in 2013 and
congressional opposition limited the Department’s ability to provide OPA with
additional funds to support hiring more staff. Cole said that “when sequestration
hit, we were basically going into every sofa and chair to find loose change…because
we knew that we did not have the money.… The idea of adding resources to the
Pardon Attorney’s Office was not an option at the time.” Deputy Pardon Attorney
Lawrence Kupers also told us that an increase in OPA’s budget was already in place
prior to the launch of the Initiative, but it ultimately fell through.
In 2014, the Department considered reallocating approximately $500,000
from the budget of the Executive Office of Immigration Review (EOIR) to OPA in

14

order to temporarily increase OPA’s staffing resources and further the Initiative.28
However, OPA’s Executive Officer told us that, after careful consideration, the
Department instead elected to use FY 2015 funds from JMD’s Special Project Fund
and allocated $280,000 to OPA in FY 2015.29 Although these funds allowed OPA to
obtain three full-time attorney detailees in FY 2015, they were on detail for only
6 months and OPA exhausted the remaining funds on other operational expenses.
Also, OPA’s FY 2015 budget request, which was submitted in FY 2014 (before the
Initiative’s April 2014 announcement) and was thereafter approved by Congress,
increased its hiring ceiling to 22 staff; but OPA staff told us that this increase was
to address the backlog that existed at OPA prior to the Initiative’s announcement.30
In addition, the Department’s FY 2016 budget request to the President, which was
submitted in the fall of 2014, sought to increase OPA’s staff ceiling by an additional
12 positions, to 34, to address the increased workflow resulting from the Initiative;
thereafter, the President’s FY 2016 budget actually proposed to more than double
the ceiling, from 22 to 46 permanent staff. While Congress increased the
appropriation for FY 2016 for the Department’s account that funded both OPA and
EOIR, congressional appropriators objected to the Department’s proposed spending
plan that would have allotted the additional positions from that fund to OPA and the
Department revised the allotment for the Initiative from the 46 positions included in
the President’s budget request to its ceiling of 22 positions.31
Detailee Program
On April 22, 2014, as well as throughout the course of the Initiative, the
Department sent out memoranda requesting that Department attorneys volunteer
to be detailed to work with OPA on either a full-time or part-time basis and either at
OPA or remotely. An April 2015 internal OPA document stated that OPA had
78 part-time detailees from various Department components who were assisting
the Initiative, most working from their home offices. We found that the part-time
detailees were generally not successful in helping OPA to address its backlog and, in
A former ODAG official told us that $500,000 was the “maximum amount the Department
could transfer internally between components without Congressional approval, approval that the
Department did not have and was told they would not receive.” According to an OPA official, the
Department ultimately determined that it would not be in its best interest to reallocate funds from
EOIR because that would mean taking funds from EOIR’s authorized budget.
28

Fiscal Year 2015 began on October 1, 2014, approximately 6 months after the Initiative
was announced.
29

In OIG’s 2011 report, we found that, from FY 2005 through FY 2010, there was a
92 percent increase in the backlog of pending clemency and pardon petitions at OPA, which was due in
part to the number of clemency petitions more than doubling during that period. See DOJ OIG, Audit
of the Department of Justice Processing of Clemency Petitions, Audit Report 11-45 (September 2011).
30

31 A JMD official told us that prior to FY 2017 OPA and EOIR shared the appropriation entitled
“Administrative Review and Appeals.” While Congress approved a total amount for the shared
appropriation, it also directed the Department to submit a spending plan that allocated funds between
EOIR and OPA. The submitted spending plan proposed additional funds for the Initiative, and the
Department’s original allotment letter to OPA reflected the full proposed spending plan request.
However, appropriators for both the U.S. House of Representatives and the U.S. Senate rejected the
increase for OPA and the Department sent a revised allotment letter to OPA reflecting the final
approved amount (without the proposed additional Initiative funds).

15

fact, were counterproductive due to the complexity of clemency cases, the difficulty
of training detailees on OPA’s database system, and the fact that many detailees
volunteered just 1 day a week. One OPA attorney told us that she had to
constantly re-train the part-time detailees on OPA’s complicated database system,
many of whom only worked once a week on this work. Deputy Pardon Attorney
Kupers told us that most part-time detailees were not familiar with criminal law. He
also said that OPA provided the detailees with a training video on how to review
commutation petitions, but that the video was not informative for those who did not
understand criminal law. As a result, OPA staff spent valuable time training and
monitoring part-time detailees instead of working on commutation petitions. Due
to these inefficiencies, OPA discontinued its use of part-time detailees in 2015.
Kupers stated, “If we’d had 20 full-time detailees instead of 100 part-time detailees
that would have done it.”
We also found that full-time detailees eventually became crucial in assisting
OPA, but that OPA did not obtain the majority of the full-time detailees until April
2016, 2 years after the announcement of the Initiative. On January 15, 2016, Leff
submitted her resignation letter to former Deputy Attorney General Sally Yates. In
the letter, a copy of which is attached to this report as Appendix 3, Leff complained
that “the Department has not fulfilled its commitment to provide the resources
necessary for my office to make timely and thoughtful recommendations on
clemency,” leaving OPA “to address the petitions of nearly 10,000 individuals with
so few attorneys and support staff, mean[ing] that the requests of thousands of
petitioners seeking justice will lie unheard.”
After Leff’s resignation, the Department identified funding from the Smart on
Crime initiative, which was used for 10 additional full-time OPA detailees from U.S.
Attorney’s Offices (USAO) for a period of 12 months starting on April 1, 2016.
These full-time detailees nearly doubled the number of attorneys working on
commutation petitions, and OPA officials and staff told us that the full-time
detailees were helpful in reviewing petitions and providing recommendations. One
OPA attorney told us that there was “clear distinction” in the level of efficiency
between the full-time detailees and part-time detailees. Former acting Pardon
Attorney Zauzmer, who was brought in on detail from the USAO for the Eastern
District of Pennsylvania to head OPA in February 2016, following Leff’s resignation,
also told us that an important reason that OPA was more productive during the final
year of the Initiative was because of the additional full-time detailees. Zauzmer
said that if a future Administration wanted to implement a similar program, OPA
would need even more resources.
Although the Department ultimately made efforts to provide OPA with
additional resources through the addition of full-time detailees, we found that those
efforts were made to a significant degree only during the last year of the Initiative.
Had the Department coordinated with OPA during the planning stages regarding the
resources and expertise necessary to handle the petitions and appreciated the
enormous impact the Initiative would have on OPA, it is likely that OPA could have
reviewed and made recommendations earlier and more efficiently.

16

The Department Did Not Effectively Implement the Initiative Following Its 2014
Announcement
We found that the Department poorly implemented the Initiative following its
announcement in April 2014, with issues not resolved and corrected until 2016.
First, rather than focusing on those inmates who likely met the eligibility criteria,
the Department notified all federal inmates of the Initiative and distributed a survey
to them, resulting in thousands of ineligible inmates filing clemency petitions.
Second, the Department failed to follow up with inmates who had begun to fill out
the Initiative’s electronic survey but did not complete it. Third, the Department did
not ensure that adequate assistance was provided to mentally challenged, learning
disabled, and non-English speaking inmates so that they could complete the survey.
Finally, the Department did not ensure that the survey was distributed to inmates
in federal contract prisons.
The Department Sent Its Survey to All Federal Inmates Rather than Limiting
Distribution to Potentially Eligible Inmates
To help CP 14 identify potential clemency petitioners and offer legal aid to
them, the Department developed a survey for BOP inmates to complete if they
sought to have a lawyer assist them in preparing a clemency petition.32 We further
found that, prior to announcing the Initiative, the Department made projections
regarding the number of federal inmates who might be eligible for commutation of
sentence under the Initiative’s six criteria. However, rather than using this
information to narrow down the inmate population that would receive the Notice to
Inmates and the survey, the Department sent the notice and survey to the entire
BOP inmate population, resulting in the majority of clemency petitions being filed
by ineligible inmates.
As early as May 2013, ODAG had internal discussions with BOP regarding the
inmate population that could be affected by possible changes to the clemency
policy.33 At that time, ODAG requested and BOP provided projections of the
number of inmates who might be affected by various criteria, including pre-Booker
crack offenders whose sentences were changed due to the Fair Sentencing Act of
2010 and Crack Cocaine Amendments to the Federal Sentencing Guidelines in 2007
and 2011.34 One population that BOP identified consisted of 2,034 pre-Booker
See Appendix 2 for the Notice to Inmates and survey that the Department provided to all
inmates in BOP institutions. The survey consisted of a series of questions regarding an inmate’s
background and criminal history that the Department developed to help CP 14 identify eligible
candidates for commutation of sentence under the Initiative’s criteria and to determine whether the
inmates wanted CP 14’s assistance with the process.
32

33 See, generally, U.S. Attorneys’ Manual (USAM) § 1-2.113, which contains the traditional
standards for considering commutation petitions. For example, the traditional standards differed from
the Initiative’s criteria by requiring petitioners to accept responsibility for their conduct.

The Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005), had the
effect of converting the mandatory minimum sentencing regime codified in the Sentencing Reform Act
(Cont’d)
34

17

crack offenders initially sentenced to 30 years or longer. While 515 of these
2,034 inmates (approximately 25 percent) had changes to their sentence based on
these amendments, 1,519 inmates (approximately 75 percent) had no changes to
their sentences and we believe were most likely to benefit from the Initiative.
Despite the Department having this information prior to the Initiative’s launch and
the fact that pre-Booker crack offenders were a key population that the Initiative
was intended to reach, the Department did not target the issuance of the Notice to
Inmates and survey to a smaller population, but instead sent the notice to all
inmates in the BOP population.
For example, one of the Initiative’s criteria provided that an inmate must
have served at least 10 years in order to be eligible for commutation consideration.
Former Deputy Attorney General Cole told us that the Initiative’s eligibility criteria
were “hard and fast” and that inmates were required to meet all of the criteria to be
considered eligible for commutation, including having served at least 10 years of
their prison sentence. Cole said that “the 10 years was more just [a] recognition
that you had to be making a statement that these crimes were criminal acts and
they do deserve some punishment.… You have to be able to say to people, look
there are consequences to what you do and we figured that 10 years was probably
the appropriate point, as a minimum.”35 During our interviews, we were told that
of 1984, and the Federal Sentencing Guidelines that were promulgated by the U.S. Sentencing
Commission pursuant to it, into advisory guidance that judges must consider, but are not bound by, in
determining sentences in federal criminal cases. The government is now required to prove every
element of the offense to establish that a mandatory minimum sentence is warranted and federal
judges may depart from the Federal Sentencing Guidelines if they believe the Guidelines sentence
does not fit the crime committed or the circumstances of the case. See Alleyne v. United States,
133 S. Ct. 2151 (2013).
The Fair Sentencing Act of 2010 and the 2007 and 2011 Crack Cocaine Amendments to the
Federal Sentencing Guidelines attempted to eliminate the disparity in sentencing for defendants
convicted of drug offenses involving cocaine base, commonly known as “crack” cocaine, and powder
cocaine by, among other things, increasing the amount of crack cocaine necessary to trigger a
mandatory minimum sentence of incarceration. Prior to the 2010 Act and 2007 and 2011
Amendments, defendants convicted of an offense involving a cocaine base received longer mandatory
minimum sentences than drug defendants convicted on an offense involving powder cocaine. In 2007,
the Sentencing Commission lowered the base offense levels for crack cocaine convictions, which the
Commission made retroactive in 2008, and in 2011 the Sentencing Commission made retroactive
further amendments reflecting the increased quantities of crack cocaine required to trigger 5- and
10-year mandatory minimum sentences under the Fair Sentencing Act of 2010.
In a Management Advisory Memorandum to Department leadership on July 21, 2016, OIG
discussed the confusion surrounding the Department’s application of the criteria, specifically whether
inmates had to meet “all” of the clemency criteria. For example, as noted above, the Notice to
Inmates and the survey that were submitted to the entire BOP population stated that the Initiative
was “limited to” petitioners who met all six of the clemency criteria. Michael E. Horowitz, Inspector
General, U.S. Department of Justice, Management Advisory Memorandum for the Deputy Attorney
General; Robert A. Zauzmer, acting Pardon Attorney; and Thomas R. Kane, acting Director, Federal
Bureau of Prisons, Management of the Application Process for the Department’s Clemency Initiative,
July 21, 2016. By contrast, the April 2014 public announcement indicated that the Department would
“prioritize” inmate applications that met all of the criteria. The latter construction in the public
(Cont’d)
35

18

BOP institution staff could have determined how many inmates had served at least
10 years of their sentence by searching BOP’s SENTRY database.36
In fact, institution staff told us that BOP’s Central Office could have done
these initial searches; provided a roster of names to each institution; and, based on
guidance from the Department, allowed staff to determine whether the inmate had
demonstrated good and non-violent conduct while in prison. The same staff also
told us that they could have done these searches themselves without the assistance
of the Central Office. One Warden told us that this would have expedited the
survey process, resolved many inmates’ unanswered questions about the process
for consideration under the Initiative, and reduced the amount of information CP 14
attorneys requested from the institutions when they were making initial eligibility
determinations.
When we asked former Deputy Attorney General Cole why the survey was
sent to the entire BOP inmate population as opposed to filtering out ineligible
inmates at the outset, he said he was not sure; but he also echoed concerns we
heard from a BOP official that qualified inmates might have been filtered out by
mistake if the survey had been sent out in a more targeted fashion, which could
have resulted in the lawsuits against the Department. Thus, rather than addressing
this risk, the Department made the decision to eliminate it by sending the survey to
all inmates in the BOP population, resulting in a landslide of petitions, the bulk of
which came from inmates who had no reasonable likelihood of obtaining relief.
Indeed, we found that BOP forwarded 35,717 clemency survey responses to
CP 14, which CP 14 attorneys reviewed to determine each inmate’s eligibility before
the attorneys could draft commutation petitions for eligible candidates. According
to a March 15, 2016, email from then acting Pardon Attorney Zauzmer, CP 14
deemed ineligible under the Initiative’s criteria 22,349 of the 35,717 inmates who
submitted surveys (approximately 63 percent) for commutation. Thus, had the
Department focused on potentially eligible inmates at the outset when issuing the
Notice to Inmates and survey, it would have significantly decreased the number of
inmates who responded to the survey and would have resulted in CP 14 and OPA
having to review fewer surveys and petitions. In addition, the Department would
have avoided raising unnecessary expectations for inmates who were almost certain
not to qualify for commutation under the Initiative.
The Department Failed to Determine Why Inmates Started but Did Not
Complete the Clemency Survey
During the course of our review, we discovered that approximately
26,759 inmates started but did not complete the survey. Of these inmates, we found
announcement appears to imply that inmates did not have to meet all of the criteria but would be the
first to be considered. See below for discussion and Appendix 4 for OIG’s Management Advisory
Memorandum. See Appendix 5 for the Department’s response to the Management Advisory
Memorandum.
SENTRY is BOP’s primary mission support database. It collects, maintains, and tracks
critical inmate information, including location, medical history, behavior history, and release data.
36

19

that 19,798 (approximately 74 percent) did not respond to any questions, while the
remaining 6,961 (approximately 26 percent) answered at least 1 question. We
further determined that 2,816 of these 6,961 inmates answered at least 10 questions
and that 333 inmates had answered all 13 questions. We also learned that the
Department and BOP failed to follow up with these inmates to ensure that their
failure to complete the survey was not a mistake or the result of a computer issue.
They also took no action to determine whether any of these inmates might be eligible
candidates for clemency under the Initiative’s six criteria. When we initially inquired
about this, Department officials told us that it was not BOP’s responsibility to follow
up with inmates who started but did not complete the survey. Institution staff
opined that some of the inmates may have had difficulty using a computer, which
could have prevented them from completing the application.
On July 21, 2016, we issued a Management Advisory Memorandum to the
Department to alert it to this issue.37 In response to our memorandum, the
Department identified inmates who had started but did not submit the survey and
who met the following qualifications: (1) their primary offense was a drug offense;
(2) they had served at least 7 years in BOP custody as of September 2014 (or
9 years of imprisonment by the end of the Initiative, which would bring the time
served to 10 years of imprisonment with good time credit); (3) they were not
within 1 year of release; and (4) they were U.S. citizens. Of the 6,961 inmates we
identified who answered at least 1 survey question but had not completed the
survey, the Department identified 256 inmates who met these 4 criteria and
determined that 49 of them had previously filed a petition. The Department
encouraged the remaining 207 inmates to file a petition.
The Department Did Not Ensure that Adequate Assistance Was Provided to
Mentally Challenged, Learning Disabled, and Non-English Speaking Inmates
We found that it was not clear whether BOP staff had provided adequate
assistance to mentally challenged, learning disabled, and non-English speaking
inmates. While the survey was issued in both English and Spanish, BOP housed
inmates with citizenship from 172 different nations at the end of FY 2014. This is
not the first time we have identified this problem in connection with a BOP
program. In our 2011 report on the Department’s International Prisoner Transfer
Program, we found that language barriers may have kept some inmates from fully
understanding the program.38
Horowitz, memorandum for Deputy Attorney General, Zauzmer, and Kane. See Appendix 4
for the memorandum and Appendix 5 for the Department’s response.
37

See DOJ OIG, Review of the Department of Justice’s International Prisoner Transfer
Program, Evaluation and Inspections Report I-2012-002 (December 2011), and DOJ OIG, Status
Review on the Department’s International Prisoner Transfer Program, Evaluation and Inspections
Report 15-07 (August 2015). In response to recommendations in our 2011 report, BOP translated all
documents and forms related to the transfer program into every language associated with treaty
nations; we found in our 2015 status review that, from FY 2010 to FY 2013, the number of transfer
requests increased by 72 percent.
38

20

Institution staff told us that, generally, if any inmate needed assistance with
the survey, the inmate would have had to reach out to staff for help; yet no
institution staff we interviewed recalled having provided such assistance.39 Given
the vulnerabilities and challenges of many of these inmates, it is unclear whether
these inmates received or understood the survey and whether they would be
capable of or comfortable seeking assistance. In response to our Management
Advisory Memorandum, the Department instructed BOP to ask all Wardens to
identify any inmate they believed might fit into one of the categories we identified:
illiterate, disabled, mentally challenged, and/or non-English or Spanish speaking.
BOP identified 2,796 inmates who fit these categories, 118 of whom met the
4 criteria discussed above. Of those who met the criteria, 56 had previously filed a
petition and the Department encouraged the remaining 62 to apply for
commutation.
The Department Did Not Ensure that Inmates in Contract Prisons Received
the Notice and Survey
We found that the Department and BOP could not determine whether all
inmates in contract prisons had received the notice and survey.40 BOP had issued a
memorandum to all contract prison Wardens instructing them to distribute the
notice and survey.41 However, unlike inmates in BOP-managed institutions,
inmates in contract prisons do not have access to TRULINCS, BOP’s internal inmate
electronic communication system. As a result, contract prison inmates interested in
clemency were unable to submit a survey electronically and had to complete a
paper copy and then forward it directly to either CP 14 or OPA. BOP left it to each
contract prison to develop a process for notifying inmates about the survey, and we
found that each contract prison Warden developed his or her own process for
distributing the survey and educating inmates about the Initiative. While some
contract prisons distributed the survey to inmates as soon as they received BOP’s
initial memorandum, we found that others made the survey available to inmates
only upon request.
In response to our Management Advisory Memorandum, the Department said
that it did not believe that any additional action was necessary with regard to
inmates in contract prisons. The Department stated that in 2014 contract prisons
posted a notification of the Initiative in visible areas throughout the prisons and
inmates at these facilities could obtain a copy of the survey from their case
manager. The Department also noted that contract prisons almost exclusively
house non-citizens and that as of September 2016 President Obama had not
39 BOP officials and staff also told us that if no BOP staff who spoke an inmate’s language
were available, the institution could use a contract translation service such as the Department’s
Language Line, which is available via telephone. BOP did not have any information regarding the
extent to which inmates were made aware of or utilized this option to complete their surveys.

According to BOP FY 2014 data, at that time there were approximately 30,000 inmates,
primarily foreign nationals with a drug or immigration offense, incarcerated in contract prisons.
Commutation of sentence has no effect on a person’s immigration status and will not prevent removal
or deportation from the United States.
40

41

BOP Technical Direction 14-04, Initiative on Executive Clemency.

21

granted any commutations to non-citizens. The Department also cited a
“significant risk” that additional outreach to inmates in contract prisons would
create false expectations about the possibility of commutation.
The Department Experienced Challenges in Working with CP 14 to Implement the
Initiative
The primary purpose of CP 14, according to former Deputy Attorney General
Cole, was to assist the Department by determining which inmates were strong
candidates for commutation and then having lawyers prepare and submit petitions
to OPA on behalf of those candidates. In this way, the Department believed that
CP 14 would narrow the number of petitions it had to review and would receive
more complete petitions from stronger candidates than it would if inmates had
prepared and submitted petitions by themselves. However, we found that despite
the Department’s efforts to delineate this position to CP 14, CP 14 had a very
different view of its role. In particular, CP 14 attorneys thought they were to serve
as advocates for inmates seeking clemency, including inmates who were clearly
ineligible but wanted to submit a petition. Additionally, we found that, initially, the
Department did not provide CP 14 with a firm deadline for submitting clemency
petitions. Finally, despite the important role that the Department intended CP 14 to
play, the Department experienced challenges in working with CP 14 and with the
Administrative Office of the U.S. Courts (AOUSC) to ensure that CP 14 attorneys
had access to Pre-sentence Investigation Reports (PSR) and other critical
documents under the control of AOUSC in order to be able to assess inmates’
eligibility for commutation in a timely fashion.
The Department and CP 14 Had Different Perspectives on CP 14’s Role, and
CP 14’s Review Process Caused Delays in Providing Petitions to OPA
Cole told us that “we need[ed] people to help us screen what we anticipated
were going to be thousands and thousands of inmates who would apply…and find
the ones who [met] the criteria.” He said that CP 14 was not supposed to be an
advocate for all inmates, but rather was supposed to focus on drafting petitions for
inmates who met the Initiative’s criteria. Cole said that he met with CP 14
repeatedly to emphasize that its role was to serve as a filtering mechanism for OPA.
However, he said that he could not direct how CP 14 accomplished this. Former
Deputy Attorney General Yates also told us that she encouraged CP 14 to focus the
majority of its attorneys’ time and effort on potentially favorable candidates.
Nonetheless, Yates said that she understood CP 14’s perspective on its role in the
Initiative because its attorneys were representing inmates on their petitions and
had an ethical responsibility to advocate for them, even if the inmate was clearly
ineligible for commutation under the Initiative’s criteria.
OPA staff stated that most of the petitions received from CP 14 attorneys
were akin to advocacy pieces rather than clear and concise discussions of a
petitioner and his or her relevant conduct in prison. As a result, OPA staff told us
that the submissions provided them little assistance. Deputy Pardon Attorney
Kupers told us that “CP 14 didn’t do that great a job on discerning which were the
favorable [candidates].” He added that many of the CP 14 attorneys attempted
22

advocacy by trying to “mitigate judges’ findings and re-litigate judges’ findings.”
He further stated that CP 14 could have been more helpful to the Department by
investigating or providing additional information regarding an inmate’s release plan
or other personal information that would not normally be discovered during OPA’s
review. Zauzmer similarly told us that CP 14 attorneys should have provided
additional details on potential “red flags” that might have affected an inmate’s
eligibility, rather than “re-litigating” the inmate’s case.
Moreover, we found that, although both former Pardon Attorneys Zauzmer
and Leff set internal deadlines for CP 14, the Department experienced challenges
with receiving applications from CP 14 in a timely fashion. CP 14’s multi-layered
review process may have hampered its ability to follow these deadlines and provide
commutation petitions to OPA in a timely manner.42 The former Chief of Staff to
Deputy Attorney General Yates told us that both Cole and Yates instructed CP 14:
(1) to prioritize drug offenders with lengthy sentences who had good
conduct in prison; (2) to submit those petitions as soon as possible,
even if the petition was not as perfect or detailed as the lawyer likes;
(3) that the President would not be able to act on petitions submitted
only a few months before January 2017 so that time was of the
essence; and (4) that CP 14 attorneys did not need perfect information
to submit petitions.
Yates believed that CP 14’s review process caused delays and that “bureaucracy
may have bogged things down.”
According to Mark Osler, a law professor who handled several individual
cases as a volunteer attorney and assisted CP 14 with training attorneys, it took a
lot of time to get a potential candidate’s case through CP 14’s processes because it
required multiple levels of review and approval from CP 14’s “Screening” and
“Steering” Committees, before a petition could be drafted and forwarded to OPA for
review.43 For example, Osler told us that the Steering Committee had
representatives from each of the five legal organizations of which CP 14 was
composed and that each organization had veto power, which we believe prevented
cases from moving forward.44 In response to the working draft of this report,
We learned from OPA leadership and staff that the Department set a deadline to submit
recommendations to the White House on all inmate petitions received by OPA by August 31, 2016,
and therefore CP 14’s deadline for submitting petitions was also this date. This internal deadline was
necessary to accommodate the time OPA, ODAG, and White House staff needed to review petitions, as
well as for U.S. Attorneys to submit their views for consideration in that process.
42

Other than providing training, Mark Osler was not affiliated with the management of CP 14.
According to our February 2017 interview, Osler was responsible for training CP 14 attorneys at the
request of a representative with CP 14. He developed a 20-page Pocket Guide to help attorneys
navigate CP 14’s process and to detail a step-by-step process on how to evaluate an inmate’s
eligibility under the Initiative.
43

44 As noted above, CP 14 drew volunteer attorney reviewers from five groups: (1) the
American Bar Association, (2) the American Civil Liberties Union, (3) Families Against Mandatory
Minimums, (4) the Federal Public and Community Defenders, and (5) the National Association of
Criminal Defense Lawyers.

23

James Felman, Immediate Past Chair for the American Bar Association and a CP 14
Steering Committee member, stated that:
The Screening Committees were an essential tool to help the volunteer
attorneys do the best job possible in identifying clients who appeared
to meet the criteria for clemency and to present the most effective
petitions for clemency possible. The Steering Committee was essential
to ensure consistency in our application of the criteria to the cases
selected for submission. Our processes were as streamlined as
possible to get the job done.
See Figure 4 for CP 14’s review process.
Figure 4
CP 14’s Process to Submit Petitions to OPA
CP 14
Assigns
Case to
Pro Bono
Attorney

Attorney
Reviews
Case and
Submits
Executive
Summary

Screening
Committee
Reviews
Case

Steering
Committee
Reviews
Case

Attorney
Prepares
Petition
and
Submits to
CP 14

CP 14
Forwards
Petition to
OPA

Source: CP 14, Pocket Guide to the Clemency Project 2014 Process

No doubt owing at least in part to this unwieldy review structure, we found
that, despite the time-sensitive nature of the Initiative, CP 14 was still submitting
petitions to OPA in January 2017, even though President Obama’s term expired on
January 20, 2017. Zauzmer told us that, after he assumed the position of acting
Pardon Attorney in 2016, he communicated internal deadlines to CP 14 numerous
times, but CP 14 continued to forward petitions to OPA after these internal
deadlines had passed.45 Zauzmer told us he was “shocked” that there were CP 14
pro bono attorneys still submitting petitions right before the end of the Obama
Administration because some of these petitions could not be acted upon by the
President. Zauzmer said that, in hindsight, there should have been firmer
deadlines put in place.
Felman, however, in response to the working draft of our report, dismissed
the utility of a deadline and praised CP 14 attorneys for submitting petitions up until
the end of the Initiative. Felman stated that CP 14 attorneys “worked up until the
very last day to submit petitions, and that personnel at OPA, the DAG’s office, as
well as the White House, were constantly and consistently urging us to submit
qualifying petitions as soon as possible.”

45 In response to the working draft of this report, Zauzmer told OIG that he repeatedly
stressed to CP 14 leadership the need for its attorneys to complete their work by mid-2016. However,
Zauzmer stated that “many CP 14 pro bono attorneys simply did not prioritize or timely complete their
assignments. The Department did everything it could…[but] firm deadlines were explicitly
communicated, and repeatedly ignored by some attorneys.”

24

We believe that the Department made attempts to explain to CP 14 its view
on how CP 14 could best assist inmates in seeking relief under the Initiative, in
particular by identifying inmates who had a realistic chance of receiving favorable
consideration and in a timely manner assisting those individuals in drafting
clemency petitions. Former Deputy Attorney General Cole told us that he met with
CP 14 numerous times regarding its role in the Initiative. However, a disconnect
remained and, predictably, resulted in a significant volume of petitions from
ineligible inmates, which further delayed OPA’s work and made the process of
preparing and forwarding recommendations for meritorious candidates more
difficult—exactly the opposite of what the Department intended CP 14’s
involvement to be. Further, this disconnect may have raised inmates’ expectations
and did little to help the Department identify those inmates who might reasonably
have had a chance to obtain clemency from the President.
The Department Failed for Over a Year to Ensure that CP 14 Could Obtain the
Court Documents It Needed to Submit Clemency Petitions
We found that delays in CP 14 attorneys’ access to inmate PSRs further
hampered CP 14’s ability to serve as a filtering mechanism for OPA during the
Initiative’s first year, as much of the information in the PSRs had to be researched
and obtained through other disparate sources. The PSR is a fundamental document
in a criminal case that, as one BOP official described to us, provides the story of an
inmate’s life prior to sentencing, which includes the inmate’s prior arrest and
conviction history as well as medical and family history. Without this document, it
would be extremely difficult to determine whether an inmate should be considered
under the Initiative. However, because PSRs are the property of the court of
conviction, and because the CP 14 attorneys had not represented the inmates at
their sentencing, the Department needed to obtain AOUSC’s permission before BOP
could allow CP 14 attorneys access to an inmate’s PSR.
Officials in ODAG became aware of this issue in June 2014, following the
decision of the Criminal Law Committee of the Judicial Conference not to allow
CP 14 to receive PSRs from BOP.46 In a June 2014 email, one ODAG official
indicated that she had contacted the Criminal Law Committee and that CP 14
attorneys would need to reach out to the sentencing courts directly to obtain PSRs.
Cole stated that ODAG had tried to resolve the issue once he and his staff became
aware of it, but we found they were unsuccessful. However, BOP’s Senior Deputy
General Counsel told us that CP 14 was able to convince the courts that CP 14 could
be trusted with PSRs and that BOP had to ensure that the transfer of this
information was secure, including by updating BOP procedures to provide PSRs to
CP 14. Felman told us that it was not until July 2015 that CP 14, in cooperation

The Committee on Criminal Law, or the Criminal Law Committee, is a committee within the
Judicial Conference of the United States responsible for long-range and strategic planning on matters
related to criminal law. In 1922 Congress created the Judicial Conference of the United States,
formerly known as Conference of Senior Circuit Judges, with the principal objective of framing policy
guidelines for the administration of judicial courts in the United States. AOUSC is responsible for
carrying out the policies of the Judicial Conference.
46

25

with BOP, was able to negotiate a protocol with the Judicial Conference of the
United States that allowed BOP to provide CP 14 with access to inmate PSRs.
Deputy Pardon Attorney Kupers told us that, while CP 14’s multi-layered
review process was not very efficient, CP 14’s initial lack of access to PSRs
contributed to the delay in providing petitions to OPA. Indeed, data on CP 14
submissions showed an increase of over 430 percent in the number of petitions
submitted from July 2015 through December 2015, the first 6 months that CP 14
had access to PSRs, as compared to the previous 6 months, January through June
2015, when it did not have access. The number of CP 14 submissions increased
even more substantially—614 percent—from January 2016 to December 2016
compared to the previous year. See Figure 5 for the number of petitions CP 14
submitted to OPA over time.
Figure 5

CP 14 Petitions Submitted to OPA

Number of CP 14 Petitions Submitted to OPA47
1200
1000
800
600
400
200
0

May 2014 Dec 2014

Jan 2015 Jun 2015

Jul 2015 Dec 2015

Jan 2016 Jun 2016

Jul 2016 Dec 2016

8

44

237

1,080

925

Count
Source: OPA data

In addition to being troubled by the delay in ODAG addressing this issue once
it was discussed, we find it surprising that the Department did not anticipate the
need for CP 14 attorneys to have access to inmate PSRs at the outset of the
Initiative, given both the Department’s understanding of the importance of the PSR
to the petition process and the Department’s unsuccessful attempt in 2013 to make
PSRs available to an outside group on a matter unrelated to the Initiative. In that
47 We based the data in Figure 5 on applications that were initiated when OPA received the
petition from CP 14 or that were still being processed when CP 14 submitted the petition. Some
petitions were submitted directly to OPA by the inmate and were pending at the White House when
CP 14 submitted an additional petition on the inmate’s behalf. These cases are not captured in
Figure 5.

26

unrelated 2013 request, an ODAG official was informed that AOUSC had denied the
Department’s request to make PSRs available to this outside group, stating that
pursuant to Judicial Conference policy and in conformity with local rules, PSRs could
be disclosed only with the permission of the sentencing courts.48 This was the
same position that the Criminal Law Committee took when it was asked to make
PSRs available to CP 14 as part of the Initiative.
Moreover, this same ODAG official, who had responsibility in ODAG for issues
involving OPA, was a key participant in the planning, implementation, and
management of the Initiative. In response to the working draft of this report,
former Deputy Attorney General Cole stated that the Department did not anticipate
that CP 14 would have difficulty accessing PSRs because CP 14 was acting on the
behalf of inmates. Regardless, we concluded that the Department’s delay in
recognizing and addressing the PSR issue significantly slowed CP 14’s ability to
assist inmates in preparing petitions, thereby undermining the Initiative’s success
from the outset.
Initially, the Department Did Not Prioritize Its Review of Clemency Petitions
According to the April 2014 announcement of the Initiative, the Department
stated that it would “prioritize clemency applications” from inmates who met all of
the Initiative’s six criteria. Despite the time-sensitive nature of the Initiative, we
found that OPA initially did not effectively prioritize petitions that met the
Initiative’s criteria. Instead, former Pardon Attorney Leff directed OPA to review
and provide a response to each petition, whether meritorious or not, because she
believed that each petition deserved full OPA consideration. As a result, we believe
OPA’s ability to promptly review petitions from inmates who were strong candidates
for clemency was negatively impacted.
To address Leff’s reluctance to prioritize petitions appropriately, starting in
early 2015 a then-ODAG official developed a system of prioritization to expedite the
petition review process and even visited OPA to facilitate its implementation. As
described to us, the system directed OPA attorneys to triage all of their cases and
classify them based upon whether the petition met most, if not all of the Initiative’s
criteria. Petitions that were classified as most eligible received an expedited indepth review and recommendation to the Department, while ineligible inmate
petitions were reviewed later. The goal of the system was for OPA to make
recommendations on the most favorable inmate petitions in the most efficient
manner. Also, following Leff’s departure, acting Pardon Attorney Zauzmer did
prioritize the review of petitions from inmates who were strong candidates for
clemency, the impact of which we discuss later in this report.
In addition, OPA staff told us that Leff directed them to draft a response to
all inmate petitions in order of receipt, as opposed to filtering out and delaying
responses to petitioners who clearly did not meet the Initiative’s criteria. Leff
confirmed this to us and stated that she believed petitioners had a reasonable
At the time of our review, this ODAG official no longer worked for the Department and was
unavailable to be interviewed.
48

27

expectation that their petitions would be looked at. She also told us that it was
her responsibility to at least provide them with a response saying that their
application would be processed later on. OPA staff told us that, even though they
used a standard form letter of acknowledgment, Leff’s instruction took away
valuable time that could have been spent on potentially favorable
recommendations. One OPA Paralegal told us that Leff did not maximize OPA’s
limited support staff resources because support staff spent most of their time
responding to every piece of mail that arrived in the office instead of filtering out
non-meritorious cases.
Former Deputy Attorney General Yates told us that there was a fundamental
disagreement between ODAG’s and Leff’s priorities and that Leff did not prioritize
cases consistent with ODAG’s instructions. Yates said that Leff set up a system that
was “designed to review every petition” and “did not prioritize [them] in the way
that we thought would be necessary to get favorable [recommendations]” to the
White House for review. Yates opined that Leff “felt that her responsibility as
Pardon Attorney was to make a decision on every petition that was pending in her
office and that people who were going to be denials were entitled to that denial as
much as someone who was entitled to a favorable [decision].” Yates also told us
that in fairness to Leff, “just like no other DAG had ever done this before…Deborah
hadn’t either. So trying to set up a process like this is really hard when you have
never done it before.” Yates informed us that, due to limited resources and time,
ODAG was prioritizing the reviews of petitions that had a greater likelihood of
receiving a grant of commutation from the President (see the text box below).
Leff confirmed to OIG that ODAG instructed OPA to prioritize Initiative cases
and also to not work on non-Initiative cases. However, she said that this would
require setting aside the vast majority of clemency petitions, and she was deeply
concerned with the idea that OPA would “backburner” petitioners who did not meet
the Initiative’s criteria. During our interview, she also questioned whether she
“would have taken the job if they [the Department] had said to me that you are
going to do the clemency initiative but at the cost of the President not doing [or]
fulfilling any responsibility on pardons or traditional commutations.” She said that
she believes that since the clemency power is vested in the President, inmates who
submit clemency petitions have reason to believe that their petitions will not “land
in a stack of papers and sit there for 10 years, but that their petitions would be
considered.” She told us that she decided that OPA would provide a response to
each petitioner, informing them that OPA had received their petition and that it was
under consideration.
We also found the process by which ODAG initially reviewed OPA’s
recommendations contributed to delays in the consideration of petitions. Leff’s
decision not to appropriately prioritize petitions meant that OPA was forwarding to
ODAG clemency petitions not only from inmates who met the Initiative’s six criteria
but also those of inmates who did not, which we believe contributed to delays in
ODAG’s review. Both OPA and ODAG officials confirmed that approximately
1,000 recommendations, including approximately 900 denial recommendations and
100 favorable recommendations, were pending review at ODAG prior to Leff’s
resignation in January 2016. According to OPA documents, on January 21, 2016,
28

ODAG had 1,197 petitions from OPA pending its consideration, including 1,074 with
OPA denial recommendations and 123 with OPA approval recommendations. Of the
123 favorable recommendations, 17 were pending ODAG review for 6 to 9 months
and 35 for 3 to 6 months. According to a then-ODAG official, it was not uncommon
for ODAG to hold some favorable recommendations for a number of reasons,
including: awaiting additional
information from BOP or elsewhere (i.e.,
The President’s Executive Clemency
Policy
state and local jurisdictions), “close calls”
in which the Deputy Attorney General
On April 23, 2014, White House
Counsel Kathryn Ruemmler issued an
wanted additional time to consider the
executive clemency policy memorandum to
case, and situations in which an inmate
Deputy Attorney General Cole that reflected
might have had a recent BOP infraction
the President’s general guidance to the
and the Deputy Attorney General wanted
Department on commutations, which
to allow some additional time to assess
mirrored the Clemency Initiative. The
memorandum did not state that all the
an inmate’s behavior.
criteria were mandatory, but rather
characterized the criteria as “factors to take
into account.” The memorandum also noted
that the President agreed with the
Department that commutation of sentence
was an “extraordinary remedy that should
be granted in extraordinary circumstances.”

Although most OPA
recommendations that were pending
ODAG review were denials, we believe
that ODAG also could have prioritized
reviewing the remaining 123 favorable
recommendations, some which were
Source: White House
pending review for nearly 9 months. Leff
said that she had not been able to obtain
an explanation for why they were pending for so long. Soon after Leff’s
resignation, however, ODAG had approximately 261 commutation
recommendations pending its review, with more than half of the 123 favorable
recommendations having been forwarded to the White House by February 25,
2016. In interviews, the former Chief of Staff to Deputy Attorney General Yates
confirmed that the recommendations had in fact been delayed at ODAG. The Chief
of Staff stated, “Nine hundred if not more of those were denials [were] on my
desk.… I did not prioritize them because I knew they could wait.” She added that
around April 2016 she stopped reviewing cases because it was “terribly inefficient”
to have her personally involved and she was slowing down the review process.
Yates said that she was not aware of the recommendations that were pending at
ODAG until Leff’s resignation. However, she assumed that her Chief of Staff had
not acted on them because the majority were denials and the Department
prioritized working on favorable recommendations.
In addition, OPA staff said that one ODAG official frequently requested that
OPA ask BOP for more information about inmate 300- or 400-level disciplinary
incidents (described by BOP as “Moderate Severity Level” and “Low Severity Level”
offenses).49 Leff and Kupers told us that fulfilling these requests was a timeconsuming process because an OPA attorney would have to request paper copies of
BOP inmate incident reports directly from the institution and the types of incidents
were usually very minor—in one instance, for example, the inmate had taken an
49

BOP Program Statement 5270.09, Inmate Discipline Program.

29

extra sausage from the cafeteria. The former Chief of Staff told us that these
requests were necessary because OPA did not provide the details of the incidents.
The former Chief of Staff further stated that she made these requests to ensure
that the DAG received all relevant information. However, around April 2016, this
official stopped reviewing clemency recommendations and ODAG subsequently
refrained from making these kind of requests for information to OPA.
While we understand the rationale behind Leff’s approach, we believe that as
a practical matter it hampered OPA’s ability to effectively utilize its limited
resources to focus on the strongest cases for clemency and, therefore, delayed the
White House’s review of potentially favorable recommendations. In addition, we
believe that ODAG could have prioritized reviewing favorable recommendations
earlier during the Initiative and could have either streamlined or eliminated
requests for information regarding minor BOP incidents to help improve efficiency.
Instead, there were at least 53 favorable recommendations pending ODAG review
for a period of 3 to 9 months, which further delayed the White House’s review of
these clemency petitions.
Although ODAG Initially Provided Guidance to OPA Regarding How to Interpret the
Initiative’s Criteria, OPA Viewed the Criteria in a More Subjective Manner
We found that ODAG provided OPA with guidance early in the Initiative
regarding what types of conduct and criminal history would disqualify a petitioner
under the Initiative’s criteria, but OPA viewed the criteria more subjectively. For
example, former Deputy Attorney General Cole told us that he had repeated
discussions with former Pardon Attorney Leff on how to interpret the Initiative’s
criteria, but the message never seemed to resonate. Our review of internal
documents and discussions with OPA officials found that ODAG provided guidance
to OPA concerning conduct that would disqualify a petitioner from receiving a
favorable recommendation. Although Cole recalled having conversations with Leff
about the interpretation of the criteria during their monthly meetings, former
Deputy Pardon Attorney Bollwerk told us that ODAG would often reverse OPA’s
recommendations without providing any guidance or feedback regarding its
decision. Cole said this was surprising to him because he recalled documenting his
specific reasons for reversing OPA’s recommendation on the correspondence
provided by OPA to ODAG; but it is unclear whether his feedback was provided to
OPA.50
Although Cole viewed the Initiative’s criteria as “hard and fast,” as discussed
above, OPA attorneys told us that they were not sure how certain criteria could be
viewed in that light. For example, according to one OPA attorney, while it was
OPA’s understanding that an applicant who committed a serious crime of violence
would be ineligible for commutation because the Initiative’s criteria required that
inmates not pose a public safety risk, there were cases in which inmates were
50 The ODAG official who was responsible for the OPA portfolio during this time and would
have communicated this feedback regarding Cole’s reasons for reversing OPA’s favorable
recommendations did not make herself available to OIG throughout the course of this review despite
repeated attempts by OIG.

30

deemed eligible despite having a criminal history that included an aggravated
assault conviction. OPA attorneys also noted that for cases in which the inmate had
a domestic violence arrest or conviction, or a significant number of misdemeanors
or arrests, OPA did not receive clear guidance as to how such factors should be
considered until early 2016, the last year of the Initiative.
Deputy Pardon Attorney Kupers
“Hard and Fast” or Flexible Interpretation
also told us that he and then Pardon
of the Clemency Criteria
Attorney Leff continually had requested
On December 19, 2013, prior to the
feedback from Deputy Attorney General
Clemency Initiative, President Obama
Cole regarding what types of conduct
commuted the sentences of eight inmates.
were disqualifying in ODAG’s view and,
Cole referred to the eight in his January 2014
conversely, what types of cases OPA
public remarks as examples of the type of
should focus on as potentially favorable
inmates the Clemency Initiative was intended
to target. However, based on our review of
(even though, as discussed above, Leff
internal documents, we note that ODAG and
continued to look at non-favorable
OPA officials believed that under a “hard and
cases as well). In particular, Kupers
fast” interpretation of the Initiative’s criteria,
said that he and Leff had asked
these individuals would not have met the
criteria. For instance, some of them had
whether they should look for petitioners
orchestrated drug trafficking rings while others
whose backgrounds were similar to the
had a significant criminal history and were
eight inmates whose sentences the
sentenced as career offenders. In addition, a
President commuted in December 2013
few individuals appeared to have a history of
or whether OPA should instead focus
violent crimes, such as one who had been
arrested for aggravated assault and sexual
exclusively on petitioners who clearly
battery and another who had convictions for
met the Initiative’s criteria. Kupers and
battery, being a felon in possession of a
Leff both told us that the eight inmates
firearm, and carrying a concealed firearm.
granted commutation in December
Source: OPA
2013 did not meet the Initiative’s
criteria and that this was a point of
confusion for OPA (see the text box). Adding to the confusion, Leff told us that
Cole’s January 2014 remarks before the New York Bar Association indicated that
the Initiative was designed to target inmates similar to these eight grantees. Leff
told us that Cole’s remarks created the impression that the criteria were meant to
be applied flexibly, rather than “hard and fast,” because the eight did not meet all
of the Initiative’s criteria.
Cole not only told us that he had strictly applied the Initiative’s criteria, but
he also acknowledged that there were other factors that would disqualify an inmate
from consideration, which the Department did not explicitly document during his
tenure. For instance, if a petitioner was eligible to obtain a judicial reduction in
sentence through the retroactive application of the U.S. Sentencing Commission’s
“Drugs Minus Two” guideline, Cole deemed that inmate ineligible for commutation
consideration because there was a legal mechanism in place that would address the
disparity in the inmate’s sentence. In Cole’s view, the Initiative was designed to
provide relief to inmates who had no other legal remedy. Further, under Cole,
inmates who were sentenced post-Booker, and received a sentence that
represented a variance below the otherwise applicable sentencing guidelines range,
would not be eligible for commutation because the sentencing judge already had
31

exercised his or her discretion and departed from the guidelines in the interest of
justice. Finally, Cole stated that inmates who were non-citizens were not
considered as candidates for commutation even though that was not mentioned as
one of the Initiative’s criteria. At time of the Initiative, this was a significant
criterion given that approximately 25 percent of all federal inmates were noncitizens. Still, Cole said he believed that the Department should channel its limited
resources to inmates who, if granted clemency, would be returning to U.S.
communities as opposed to non-citizen inmates, who would instead be immediately
deported.
We found that the Initiative’s criteria were applied more flexibly under former
Deputy Attorney General Yates. Former acting Pardon Attorney Zauzmer was also
a strong advocate for greater flexibility. Deputy Pardon Attorney Kupers confirmed
this and told us that “there clearly was very gradual movement with some of the
criteria and they became applied more flexibly as time went on.” For example,
Zauzmer told us that he believed certain non-citizen inmates warranted
consideration under the Initiative and lobbied the White House to reconsider its
position. During Zauzmer’s tenure, the Department sent favorable
recommendations to the White House for approximately 31 non-citizen inmates
serving life sentences. However, the President denied clemency for all of these
inmates.51
We also learned that OPA maintained a “non-citizen on hold” queue in its
database for managing non-citizen petitions that met the Initiative’s criteria.
According to Zauzmer, by the end of the Obama Administration, OPA had about
112 non-citizen petitioners in the queue. In OPA’s final submission to the White
House in January 2017, ODAG sent the list of 112 non-citizen inmates to the White
House for clemency consideration; however, President Obama denied clemency to
all 112 non-citizens.
Another example in which criteria became more flexible involved inmates
who violated 18 U.S.C. § 924 by possessing a firearm during the commission of a
drug crime. We were told that under Deputy Attorney General Cole those inmates
would not have received a favorable recommendation but in some cases they did
under Deputy Attorney General Yates. In addition, Kupers told us that under Cole
OPA could not apply good conduct time to satisfy the 10-year time served
requirement. However, during the last year of the Initiative this changed and OPA
was allowed to credit good conduct time when determining whether an inmate met
the 10-year requirement. Further, an OPA attorney told us that, over time, the
Department began to make favorable recommendations for inmates who were
eligible for a reduction in sentence under the U.S. Sentencing Commission’s Drugs
Minus Two guideline, and the OPA attorney told us that this shift caused an increase

Based on our review of Department data, we found that President Obama commuted one
non-citizen inmate’s sentence from death to life in prison. According to Zauzmer, this petitioner was
considered under traditional clemency criteria.
51

32

in the number of favorable recommendations sent to the White House.52
Additionally, contrary to Cole’s position, Yates allowed OPA to recommend to the
White House commutations for inmates who had received a Booker variance from
the otherwise applicable sentencing guidelines. Finally, in February 2016, OPA was
authorized to recommend term commutations, which unlike typical commutations
are sentence reductions that do not result in a prompt release from prison but
rather provide for an earlier release some time in the future.53 Yates confirmed to
OIG that she interpreted the criteria differently than Cole and that she thought they
were not intended to be rigid or to permit deviation in otherwise meritorious cases.
These changes under Deputy Attorney General Yates, which broadened the
number of inmates who were eligible for consideration under the Initiative, as well
as the evolution of the application and interpretation of the criteria, inevitably
raised questions about whether petitioners whose petitions had been considered
and denied when the criteria were more strict would have fared better under the
new, more flexible interpretation. Later in this report we discuss the reforms acting
Pardon Attorney Zauzmer put in place to allow for the reconsideration of certain
inmate petitions submitted prior to 2016.
USAOs Did Not Provide Timely Responses to OPA on Clemency Petitions
According to OPA staff, it has historically been a challenge to obtain feedback
on clemency petitions from U.S. Attorneys within the 30-day timeframe required by
Department policy, although this feedback is a key component of the clemency
process.54 In OIG’s 2011 report on the clemency process, we found the same
concerns and recommended that the Executive Office for U.S. Attorneys issue
additional guidance to the USAOs reminding them to comply with the timeframes in
the U.S. Attorneys’ Manual (USAM) and notify OPA of any expected compliance
delays.55 The Executive Office for U.S. Attorneys concurred with our
recommendation and provided documentation of its additional guidance to the
USAOs regarding the need to respond to OPA requests in a timely manner. We
were therefore deeply concerned to discover the same issues we identified in 2011,
52 Based on our review of clemency recipients, the President commuted sentences for inmates
whose sentences were amended on or after November 1, 2014, the date that the Sentencing
Commission’s Drugs Minus Two guideline went into effect. For more information on inmates who
received commutation, see DOJ, “Commutations Granted by President Barack Obama (2009–2017),”
www.justice.gov/pardon/obama-commutations (accessed June 27, 2018).

According to Cole, he had previously proposed term commutations as an option for inmates
with long drug sentences but the White House did not approve.
53

According to the USAM, the Pardon Attorney generally asks a U.S. Attorney for a response
within 30 days. If the U.S. Attorney anticipates an unusual delay, the U.S. Attorney should advise the
Pardon Attorney as to when to expect the response. The views of the U.S. Attorney are to be given
considerable weight in determining what recommendations the Department should make to the
President. Each petition is presented to the President with a report that includes the Department’s
recommendation and the U.S. Attorney’s views. See USAM § 1-2.111.
54

55 See DOJ OIG, Audit of the Department of Justice Processing of Clemency Petitions, Audit
Report 11-45 (September 2011).

33

and that the USAOs had been told to address, were still being faced by OPA just a
few years later.
According to former Deputy Attorney General Cole, U.S. Attorney feedback is
critical to ensuring public safety, as USAOs may have sensitive intelligence about an
offender that is not included in court records such as the PSR. For instance, a
USAO may not have had enough evidence to bring specific charges against a known
violent offender and therefore may have prosecuted the petitioner for a lesser
offense; but the USAO could still be aware of relevant factual information about the
offender that should be known in considering possible clemency. Consequently,
because some USAOs do not provide feedback to OPA in a timely manner, as
required by Department policy, petitioners’ applications lingered at OPA indefinitely.
Based on our review of OPA data, we found that by December 2016 there were
580 overdue USAO responses, including 2 that were overdue by about a year (see the
table).56 Zauzmer told us that when OPA had not received a USAO response after 60
days he would email the U.S. Attorney directly to obtain his or her views on the case.
According to Zauzmer, a few USAOs were continually “not very responsive” and
disproportionally delayed the processing of petitions from their districts.
Table
Number of Overdue U.S. Attorney Responses
As of December 1, 201657
Number of
Overdue U.S.
Month Initial
Attorney
Request Sent
Responses
<1
234 October
1
175 September
2
70 August
3
43 July
4
30 June
5
15 May
6
4 April
7
6 March
8
0 February
9
0 January
10
1 December
11
0 November
12
2 October
Source: OIG analysis of OPA data
Months
Overdue

Year Initial
Request
Sent
2016
2016
2016
2016
2016
2016
2016
2016
2016
2016
2015
2015
2015

56 We believe that the number of outstanding U.S. Attorney requests increased near the end
of the Obama Administration at least in part because OPA was processing an increasingly large volume
of petitions during the last months of the Initiative.

Out of the 580 overdue U.S. Attorney responses, 512 were for commutation petitioners and
63 for pardon petitioners. It was unclear in the data whether the remaining five outstanding
responses were for commutation or pardon petitioners.
57

34

Zauzmer told us that during the final week of December 2016 OPA could no
longer wait for USAO responses for about 15 cases and submitted favorable
recommendations to ODAG without the views of the U.S. Attorney. Based on our
document review, we found this issue to be more prevalent. According to a
January 4, 2017, email from then acting Pardon Attorney Zauzmer, the Department
submitted 72 recommendations to the White House without the views of the U.S.
Attorney. We also found that the President granted commutation to 51 of these
inmates and that some of the U.S. Attorneys’ responses may have come in after
the Department initially submitted its recommendation to the White House.58
Consequently, some of these clemency decisions may have gone forward without
information that might have influenced the Department’s recommendations or their
final resolutions.
As we discuss below, Zauzmer implemented a number of reforms after being
appointed as acting Pardon Attorney that were intended to improve the
Department’s clemency review process. One of these reforms was a streamlined
template that USAOs could use for their responses. According to former Deputy
Attorney General Yates, the streamlined template helped standardize the types of
responses OPA received. She said that, prior to the template, USAO responses
varied, with some containing a few sentences and others including a “whole book”
of information regarding the case. The template helped the districts to “really focus
them on what we needed and what we didn’t.”
Despite the introduction of the template, as detailed above, several USAOs
still did not provide the U.S. Attorneys’ responses to OPA in a timely manner. We
heard complaints from various Department officials that OPA sometimes requested
views from U.S. Attorneys for inmates who clearly did not meet the requirements
for commutation, which may have contributed to delayed responses. Yates said
that one of the early complaints she received from U.S. Attorneys was that they
were receiving “a fair number of petitions for people who wouldn’t even come close
to qualifying.” Yates told us that one way to help ensure compliance would be to
send requests to USAOs only for candidates who were likely to qualify. Various
Department officials told us that in light of the substantial responsibilities of U.S.
Attorneys, many of which are time-sensitive, clemency is simply not the top priority
for them. Yates told us that “they’re doing this on top of everything else they’re
doing, and this is the only job of the Pardon Attorney’s Office…we were asking U.S.
Attorneys to do this stuff in a really short time frame.”
The Initiative Impacted the Department’s Handling of Pardon Petitions
The challenges that the Department faced in handing the thousands of
clemency petitions generated by the Initiative had a significant impact on the
Department’s processing of pardon petitions. We found that in September 2014
58 In response to the working draft of this report, Zauzmer stated that there were a number
of instances in which the U.S. Attorney recommendation arrived after OPA’s recommendation was
made. In those instances, he immediately forwarded the recommendation to both ODAG and the
White House Counsel’s Office (WHCO), along with a statement of whether the recommendation altered
his earlier stated view.

35

then Deputy Attorney General Cole instructed OPA to prioritize commutation
petitions over pardon petitions, effectively suspending their consideration, and to
channel its limited resources to support the Initiative. Cole told us that petitioners
in BOP custody seeking commutations presented a more urgent need because they
were still in custody, and therefore he suspended OPA’s consideration of pardon
petitions for a period of approximately 14 months. Former Pardon Attorney Leff
told us that Cole informed her that “resources are not going to be forthcoming, and
he said you should assign every attorney to work on commutation and the
Clemency Initiative and not work on pardons and traditional commutations.” Leff
said that she ultimately implemented Cole’s instruction but told us that she believed
pardon applicants deserved a notice informing them that OPA would not be working
on their pardon application. She said that “if people are applying for a pardon and
if they literally are going to sit in a stack in the office and not get any attention, one
could send them a letter.” According to Leff, ODAG told her not to send any notice
about delays in reviewing pardon applications.
However, after a news article criticized President Obama for being “stingy
regarding pardons,” ODAG instructed OPA to resume work on pardons, according to
the one attorney who worked exclusively on them. The attorney told us later, in
March 2016, that the White House implemented an expedited pardon process to
ensure that the President could make a determination on some meritorious pardon
recommendations before the end of his Administration. At the time, OPA and ODAG
had approximately 1,600 pardon petitions pending.
According to the attorney working exclusively on pardons, to streamline the
pardon process and allow ODAG to focus exclusively on commutation
recommendations, the White House instructed the Department to send all pending
pardon petitions directly to the White House Counsel’s Office (WHCO) for its review.
The OPA attorney told us that WHCO then reviewed and selected 406 petitioners
who they believed merited further review by OPA. OPA, in turn, verified the
criminal history of these petitioners and learned that a few of WHCO’s selections
had misrepresented their criminal histories. These candidates’ petitions were
subsequently removed from consideration.
In order to accelerate the turnaround on the Federal Bureau of
Investigation’s (FBI) investigations of the remaining cases, former acting Pardon
Attorney Zauzmer met with FBI and negotiated an expedited Application for Pardon
after Conviction investigation that required FBI to complete the entire investigation
in 30 days instead of the usual 120 days. Once FBI had completed the
investigations, OPA submitted its recommendations directly to WHCO, rather than
sending them first to ODAG for review. Ultimately, President Obama granted
142 pardons in FY 2017 and ended his Administration having granted a total of
212 pardons.59

See DOJ OPA, “Clemency Statistics,” www.justice.gov/pardon/clemency-statistics (accessed
June 26, 2018).
59

36

The Department Implemented Several Changes to Its Management of the Clemency
Process, Which Substantially Streamlined the Process for Sending Recommendations
to the White House
In 2016, following Leff’s resignation and the appointment of Robert Zauzmer
as acting Pardon Attorney, the Department made a number of significant changes
to how it handled clemency petitions under the Initiative. As we described
previously, the Department addressed staffing shortages at OPA by providing OPA
with full-time detailees, OPA put a prioritization process in place for reviewing
clemency petitions, and the Department provided OPA with greater clarity on the
application of the Initiative’s criteria. We describe below several additional actions
taken by OPA and the Department to manage the large volume of petitions that
were pending in OPA in January 2016.
As mentioned earlier in this report, Leff resigned in January 2016 due to a
number of issues she had with the Department’s management of the Initiative.
One issue Leff discussed in her resignation letter, and with OIG, was her belief that
the Pardon Attorney should have direct access to the White House and that OPA’s
views should be included in ODAG’s recommendation when OPA and ODAG
disagreed about a petition.60 Leff told us that, contrary to her expectations, ODAG
did not forward contrary OPA views on recommendations to the White House during
her tenure.
We found that, shortly after Leff resigned, the Department started to include
the opposing views of the Pardon Attorney in ODAG’s recommendations to the
White House. Zauzmer told us that the Department implemented this change to
address concerns Leff cited in her resignation letter, that “prior to making the
serious and complex decisions underlying clemency, it is important for the President
to have a full set of views.” Nevertheless, we learned from Zauzmer that, during
the Initiative, the President never once acted contrary to an ODAG recommendation
not to grant clemency when there was dissent between OPA and ODAG. The
sharing of dissenting views was not completely without effect, though, as Zauzmer
told us that in the few times when both ODAG and OPA recommended a term
commutation but disagreed on the length of the reduction, the President favored
some of OPA’s recommendations.
Another change made in the handling of clemency petitions was the decision
by the Department in July 2016 to delegate authority to Zauzmer to function as the
final reviewer for all OPA non-favorable recommendations. During Leff’s tenure,
this authority had been reserved for ODAG officials. However, in light of the large
number of favorable recommendations submitted and pending with ODAG, as well
as the impending end of the Obama Administration, we believe the Department
amended its process so that ODAG officials could reserve their time for reviewing
petitions that might result in the President granting commutation.

Although the Department traditionally provided one recommendation to the White House,
we found that there were a few occasions prior to Leff’s appointment as Pardon Attorney involving
pardon petitions in which both ODAG’s and OPA’s recommendations were provided.
60

37

Former Deputy Attorney General Yates told us that near the end of the
Initiative both she and OPA agreed that it was not an efficient use of her time to
review non-favorable recommendations because she was not reversing OPA’s
recommendations. Also, in light of the thousands of recommendations OPA was
making during the final year of the Initiative, she said that she simply could not
have reviewed every recommendation and thus channeled her efforts on reviewing
favorable recommendations. Accordingly, from July 2016 until the end of the
Obama Administration, inmate commutation petitions for which OPA recommended
a denial were submitted directly to the White House without ODAG review.61 While
this streamlined process freed ODAG’s time to review petitions that had greater
potential to be granted, with the exception of a few cases, it also meant that ODAG
was no longer in the position to recommend clemency for those that OPA did not.
In addition, OPA staff told us that Zauzmer implemented a number of
changes that helped streamline the review process and improved productivity. For
example, OPA attorneys told us that Zauzmer developed a new USAO referral form,
which required an expedited response time, from 30 days to 14 days, near the end
of the Obama Administration. Zauzmer also eliminated the requirement that OPA
attorneys needed to request permission from the Pardon Attorney to send referrals
to the USAOs. Two OPA attorneys commented that once Zauzmer came on board,
OPA did not have to answer every piece of mail, which had previously slowed their
work. We believe that the sum of these individual steps, coupled with increases in
OPA’s staffing, proved highly effective and enabled OPA to provide more
recommendations to ODAG and ultimately to the White House. For instance, by the
end of 2015, the Department had provided recommendations to the White House
on only 1,755 clemency petitions. By contrast, during the final year of the
Initiative, under Zauzmer’s tenure, the Department submitted
12,137 recommendations to the White House.62 (See the text box below, which
highlights other reforms Zauzmer implemented in 2016, some of which we
discussed earlier in this report.)

Yates told OIG that there were a “handful” of non-favorable recommendations that she
reviewed at Zauzmer’s request. In response to the working draft of this report, Zauzmer stated that
whenever he had the slightest doubt on a non-favorable recommendation, it was submitted to ODAG
for review.
61

62 According to OPA, some recommendations were sent from the Department to the White
House more than once, for a variety of reasons, and the Department’s recommendation may have
changed on a subsequent submission. Therefore, these numbers reflect only when the final
recommendation was submitted to the White House.

38

Reforms Under Zauzmer


Zauzmer and Yates ended the practice of using courier mail to transport hard copy
recommendations to ODAG, which was inefficient, time-consuming, and prolonged the back
and forth exchanges between both offices, and replaced it with email.



Zauzmer discontinued OPA attorneys’ use of a lengthy worksheet, which initially was
designed as a teaching tool for new OPA attorneys and detailees. Zauzmer also disabled
the 1,000-character limit in OPA’s case management system for micro-summary denials.
This character limit often made it more time-consuming for OPA attorneys to draft microsummary denials, which prevented them from reviewing other petitions.



Zauzmer introduced a short-form U.S. Attorney referral template that mirrored the format
of OPA’s recommendation template to make it easier for U.S. Attorneys to provide their
views on petitions and to ensure they were providing the necessary information to OPA.

Source: OPA officials and staff

OPA Undertook a Reconsideration Project in 2016 for Inmates Who Had Not
Received a Favorable Recommendation
In light of the more flexible approach by former Deputy Attorney General
Yates that increased the number of inmates who were eligible for commutation
consideration, acting Pardon Attorney Zauzmer instituted the Reconsideration
Project in March 2016. The Reconsideration Project was an OPA-led effort to
determine whether inmates who previously had not received a favorable
recommendation from the Department would have received a different
recommendation because of the changes in the eligibility criteria applied by the
Department. According to Zauzmer, the goal of the Reconsideration Project was to
ensure that “all petitioners under the Initiative were treated fairly and consistently.”
Based on our review of OPA records, it appears that OPA leadership, as part
of the Reconsideration Project, reviewed all non-favorable recommendations (over
3,000 inmates’ petitions) made by OPA prior to February 1, 2016. However, we
found that OPA did not fully reopen all previously denied cases and review the
entire case file, which may have contained additional relevant information. Instead,
Zauzmer reviewed the “micro-summary denial” in OPA’s case management system,
which was referred to as a micro-summary denial because the OPA system had
limited the length of the summary.63 In addition, a senior OPA attorney
simultaneously reviewed approximately 150 “full denial” recommendations that
contained a more detailed assessment of the inmate’s petition. After reviewing all
non-favorable recommendations, for those petitions that OPA leadership believed
warranted further review, OPA attorneys did a series of preliminary screenings of
potentially meritorious petitions and identified 85 petitions that warranted full
63 Prior to Zauzmer’s tenure, OPA’s case management system limited micro-summary denials
to 1,000 characters. According to Zauzmer, because of the 1,000-character limit, OPA attorneys
would frequently have to condense their summaries and, as a result, we believe, important
information may not have been included.

39

reconsideration by the Department. During our interview in March 2017, Zauzmer
estimated that by the end of the Obama Administration the President had granted
clemency to approximately 20 to 30 inmates whom OPA had identified through the
Reconsideration Project.64
Even with the Reconsideration Project, OPA attorneys told us that there were
inmates who would have received a different resolution had the Department given
full consideration to their petitions in 2016 and applied the more flexible standards.
Zauzmer acknowledged this possibility and said that he could not be confident that
OPA did a “perfect” job and captured all petitions worthy of reconsideration; but he
“was determined to try and be fair to everybody.”65 He explained that the only way
OPA could have done so would have been to go back and conduct a regular review
of all previously rejected inmate petitions to determine “what’s lurking in there that
nobody mentioned in the micro-summary [denial].” However, the senior attorney
who supported this project stated that OPA did not have the time to do so. Given
these comments by Zauzmer and OPA attorneys, we believe there remains a
substantial question as to whether the Department treated all petitioners
consistently over the course of the Initiative.
The Department Made Recommendations to the White House on Over 13,000 Petitions
As stated previously, the Department’s goal was to provide recommendations
to the White House on all inmate petitions that were received at OPA by August 31,
2016. We found that the Department exceeded this goal and made
recommendations not only on all the petitions that OPA received by this deadline,
but also on a number of petitions received after the deadline. In fact, based on our
review of OPA data, we found that the Department made recommendations on over
1,300 cases that were opened after this deadline, including some cases opened as
late as January 2017, and that 127 petitioners whose cases were opened after
August 31, 2016, ultimately received some form of commutation. By the end of the

According to OPA records, 22 of the 85 petitions that OPA identified as warranting
reconsideration were at the time pending review at the White House as recommended denials. Upon
OPA’s request, the White House returned these petitions for further review. With respect to the other
63 petitions, the President had already denied them consistent with the Department’s denial
recommendation. Consequently, with respect to these 63 inmates, the Department and the White
House agreed to waive the traditional 1-year waiting period and OPA subsequently reevaluated these
inmates’ petitions under the more flexible criteria.
64

65 In response to the working draft of this report, Zauzmer stated that although he may have
acknowledged that it is possible that a worthy petition may not have been reconciled by the
Reconsideration Project, it was only in the sense that one can “never say never.” According to
Zauzmer, OPA devoted all the resources it deemed “necessary to assure [sic] that all petitions from
throughout the Initiative were considered on a level playing field and subject to uniform standards”
and that “it is highly unlikely that any petitioner was disadvantaged.” While we recognize OPA’s
efforts to treat all petitions under uniform standards, in April 2017 we were told by the senior OPA
attorney who screened “full denial” recommendations that she knew of a handful of petitioners who
were overlooked by the Reconsideration Project and since reapplied for a commutation of sentence.

40

Initiative, the Department had made recommendations to the White House on
13,892 petitions, resulting in 1,696 inmates receiving clemency.66
Zauzmer told us that there were approximately 83 inmates who were “tough
cases” and who ultimately did not receive a decision by President Obama. He said
that, in about 20 of the 83 cases, Deputy Attorney General Yates agreed with OPA
and made a favorable recommendation to President Obama. In the remaining
63 cases, OPA had made a favorable recommendation that ODAG reversed to a
denial recommendation. Zauzmer also said that in January 2017 OPA sent the
White House approximately 2,000 denial recommendations, but the White House
mistakenly overlooked about 400 inmates in this submission and did not decide on
them (the other 1,600 petitions were denied consistent with OPA’s
recommendation). Although it is unlikely that these inmates would have received
clemency, Zauzmer said that it was unfortunate that there was not a final
determination made on their petitions before the end of the Obama
Administration.67
Attempting to weigh the overall challenges and accomplishments of the
Initiative, former Deputy Attorney General Yates told us that with a “massive
undertaking” like the Clemency Initiative, which had never been done before,
“there was no playbook.” She added that while there might have been things that
could have been done differently, the challenges that the Department experienced
should not dissuade it from attempting programs that are “big and bold” in the
future because, otherwise, “we wouldn’t be doing our jobs.”

66 See U.S. Sentencing Commission, An Analysis of the Implementation of the 2014 Clemency
Initiative (September 2017), www.ussc.gov/sites/default/files/pdf/research-and-publications/researchpublications/2017/20170901_clemency.pdf (accessed June 27, 2018).

As referenced on OPA’s website, petitions not decided by one Administration generally
remain pending until decided by a subsequent Administration. See DOJ OPA, “Frequently Asked
Questions,” www.justice.gov/pardon/frequently-asked-questions (accessed June 26, 2018).
67

41

CONCLUSION
OIG found that the Department substantially fulfilled the mandate of the
Clemency Initiative in making over 13,000 recommendations on commutation
petitions by the end of President Obama’s Administration. As the Initiative
progressed, the Department implemented a series of changes that helped
streamline the review of clemency petitions, which ultimately increased the number
of favorable recommendations sent to the White House. However, we found
several shortcomings that hindered the processing of clemency petitions,
particularly during the first 2 years of the Initiative.
We found that, from the outset, the Department did not effectively plan and
implement the Initiative. Despite the Office of the Pardon Attorney’s (OPA) key role
in the clemency process, the Department did not sufficiently involve OPA in
planning the Initiative. We also found that, contrary to the Department’s stated
commitment to supporting the Initiative, OPA encountered significant resource
challenges. We found that while the Department attempted to address OPA’s
limited resources by requesting that Department attorneys volunteer at OPA, a
part-time detailee program did not further and may actually have hindered the
process of providing clemency recommendations and OPA did not receive the
majority of its full-time detailees until 2 years after the announcement of the
Initiative. We believe that if OPA had been given greater resources at the outset, it
would have been better equipped to handle the predictable influx of petitions and
provide more recommendations in a more timely fashion.
Exacerbating OPA’s resource limitations, the Department, despite initial
projections of the number of inmates who met certain criteria established under the
Initiative, sent its clemency survey to the entire BOP population, rather than
limiting it to inmates likely to meet the Initiative’s criteria. If the Department had
targeted the survey to inmates who met certain criteria, it would have reduced the
backlog of surveys that needed to be reviewed. This would have enabled the
limited number of people doing this work to focus on those who were more likely to
be favorably considered under the Initiative, thereby avoiding the risk of raising
expectations unnecessarily for others who were almost certain not to qualify for
relief.
In addition, the Department experienced challenges in working effectively at
the outset of the Initiative with the Clemency Project 2014 (CP 14) and the
Administrative Office of the U.S. Courts to ensure that CP 14 attorneys would have
access to inmates’ Pre-sentence Investigation Reports, which slowed CP 14’s efforts
considerably. As a result, CP 14 could not effectively provide petitions to OPA for
over a year after the announcement of the Initiative, which further hindered the
Department’s ability to review petitions.
Another obstacle that OPA faced was that some U.S. Attorneys did not
provide their views on inmate petitions in a timely manner, as Department policy
required. OPA’s receipt of a U.S. Attorney’s views is critical and of particular
importance in ensuring that an inmate petitioning for commutation does not
present a public safety risk.
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Moreover, we found that, under the direction of former Pardon Attorney
Deborah Leff, OPA failed to prioritize petitions as the Department had directed,
instead providing a response to every petition, whether meritorious or not. This
insistence on fully considering and responding to every petition as it was received
resulted in OPA not utilizing its limited resources to focus on eligible candidates,
which likely further delayed the Department in providing favorable
recommendations to the White House.
Further, we found that during the first year of the Initiative the Office of the
Deputy Attorney General (ODAG) provided OPA with guidance regarding what types
of conduct and criminal history would disqualify a petitioner, but OPA viewed the
Initiative’s criteria more subjectively. As a result, OPA made favorable
recommendations to ODAG that ODAG reversed. Although former Deputy Attorney
General James Cole told us that he provided feedback on recommendations that
were reversed, OPA officials told us that, initially, this feedback was not
communicated to them, and, if it had been, it would have informed their decisions
regarding future recommendations. With the approval of the White House, the
Department later applied the Initiative’s criteria with more flexibility, which resulted
in a larger number of favorable recommendations reaching the White House before
the end of the Obama Administration. However, despite an effort to determine
whether some summarily denied petitions should have been reconsidered, there
remains a substantial possibility that the shift in the interpretation of the Initiative’s
criteria may have put some inmates who applied earlier at a disadvantage. We
finally found that although the Department made favorable recommendations for
many non-citizen inmates, ultimately no grants of commutation were made to noncitizens under the Initiative.
On January 20, 2017, the Department discontinued the Initiative and as a
result, we do not make recommendations to the Department to address the issues
we found throughout the course of our review. Nevertheless, we believe that the
lessons learned from the Department’s implementation of the Initiative can be of
assistance to the Department in handling any future clemency programs.

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APPENDIX 1
METHODOLOGY OF THE OIG REVIEW
In this review, OIG examined the U.S. Department of Justice’s (Department)
clemency process since FY 2014, as well as its implementation and management of
the Clemency Initiative. Our fieldwork, performed from May 2016 to April 2017,
included document and policy reviews, email record reviews of former and current
Office of the Pardon Attorney (OPA) and Office of the Deputy Attorney General
(ODAG) officials, data analysis, and interviews. The following sections provide
additional information about our methodology.
Standards
OIG conducted this review in accordance with the Council of the Inspectors
General on Integrity and Efficiency’s Quality Standards for Inspection and
Evaluation (January 2012).
Data Analysis
We analyzed several sets of data, including the number of inmates who
completed or started the clemency survey, OPA data on grants of pardons and
commutations, clemency petitions received and pending, Clemency Project 2014
(CP 14) petitions submitted to OPA, OPA requests to U.S. Attorneys,
recommendations sent to the White House, and non-citizens who petitioned for
clemency.
The Federal Bureau of Prisons (BOP) provided to us the number of inmates
who completed the Department’s clemency survey (see Appendix 2) and the
number of inmates who started but did not submit the survey. For all inmates who
started but did not submit the survey, BOP provided their names and answers.
Using this information, we determined the number of questions each inmate
answered.
To help us prepare OIG’s Management Advisory Memorandum (see
Appendix 4), BOP provided a list of names and register numbers of inmates who
had completed the survey and forwarded it to CP 14. We compared this list with
BOP’s population data, which included the sentence start date of each inmate, to
determine the number of inmates who had served at least 10 years and had
forwarded the survey to CP 14.
Regarding grants of clemency, clemency petitions received, and clemency
petitions pending, OIG used OPA’s website to determine the number of pardons and
commutations since FY 1900.68 According to OPA’s website, the statistics for
petitions granted derive from a count of clemency warrants maintained by OPA:
Cases in which multiple forms of relief were granted are counted in
only one category. Cases in which clemency was granted to a person
See DOJ OPA, “Clemency Statistics,” www.justice.gov/pardon/clemency-statistics (accessed
June 26, 2018).
68

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who did not file an application with OPA are counted as “Petitions
Granted” but have not been counted as “Petitions Pending” or
“Petitions Received” since at least FY 1990. The figures for
commutations exclude one reprieve granted in FY 2000 and one
granted in FY 2001. Also excluded from the chart are individual
members of a class of persons granted pardons by proclamation, such
as President Jimmy Carter’s proclamation granting clemency to certain
Vietnam era offenders, and persons granted clemency after action by
President Gerald R. Ford’s Presidential Clemency Board. “Petitions
Pending” means pending at the beginning of the fiscal year, or in the
case of a change of administration, the number of cases pending at
the time of the new President’s inauguration; that number may not
correspond with the number computed from case-processing figures
reported for the previous year due to the fact that minor subsequent
corrections in case closure for a previous fiscal year to be made.
With regard to the number of petitions that CP 14 submitted to OPA, OIG
received a spreadsheet from OPA that listed each petitioner and the date that OPA
received the petition from CP 14. OPA staff noted that, although these dates reflect
the date of CP 14’s submission to OPA, inmates also may have sent a clemency
petition directly to OPA. As a result, OPA may have reviewed petitions sent directly
from inmates if they arrived prior to CP 14’s submission.
The data on overdue U.S. Attorney responses was taken from OPA “tickler”
records as of December 1, 2016. OPA staff produced monthly reports on
spreadsheets to track tickler notices, or reminders to U.S. Attorney’s Offices
regarding OPA requests for their views.
We based our analysis of the number of favorable recommendations sent to
the White House on an OPA spreadsheet containing information on all commutation
petitions processed by the office from January 2012 through January 2017. We
based our analysis of the number of favorable recommendations forwarded to the
White House without U.S. Attorney views on an OPA spreadsheet listing petitions
OPA had sent as of January 4, 2017, without U.S. Attorney views, along with the
White House’s decisions on the petitions. The list was attached to an email from
former acting Pardon Attorney Robert Zauzmer requesting staff to forward any U.S.
Attorney responses for these petitions received after January 4, 2017, to the White
House.
Additionally, we used the data that OPA provided on all commutation
petitions processed from January 2012 through January 2017 to cross-reference
petitioners’ BOP registration numbers with BOP data on the citizenship of inmates.
We were unable to obtain citizenship information for about 200 inmates out of the
approximately 26,000 petitioners included in the data due to such issues as
incorrectly entered data and inmates not being captured in BOP’s annual population
snapshot data.

45

Email and Document Analysis
We requested and reviewed documentation related to our review from ODAG,
OPA, the Executive Office for U.S. Attorneys, and BOP. The documents we
reviewed included memoranda, policies, reports, and meeting agendas.
We had difficultly scheduling interviews and obtaining complete responses to
data and document requests from OPA prior to February 2017. OPA told us that,
due to its effort to review and process as many cases as possible prior to the end of
the Obama Administration, it could not allocate time to respond to OIG’s review
until later that year. In addition, several ODAG and OPA officials had left the
Department during the scope of our review. As a result of these factors, OIG
requested and obtained email records, through the Justice Management Division
(JMD), of several former and current ODAG and OPA officials and staff. The email
records had been archived from 2013 through March 2016. The emails we received
were limited to those that contained key search terms related to clemency and the
Initiative.
Similarly, OIG received OPA’s internal files, as well as access to its case
management system, IQ, by requesting it through JMD. Within OPA’s internal files,
we reviewed documents and policies as well as commutation petition cases,
including cases that had been completed. We also examined “flipped” cases, or
cases that OPA had initially recommended as favorable and then changed to denial
per ODAG’s request. Within IQ, we reviewed the process of reviewing commutation
petitions, as well as completed petitions and petitions that were under
consideration. After January 2017, OPA was able to provide us with additional data
and documents.
Interviews
We interviewed over 80 officials and staff from ODAG, OPA, BOP, and the
Executive Office for U.S. Attorneys, as well as federal inmates and attorneys
affiliated with CP 14. We also interviewed former Department officials, including
former Deputy Attorneys General responsible for the Initiative, former Pardon
Attorneys, and former OPA staff and detailees. OIG selected these interviewees
based on their involvement with the clemency process and the Initiative. OIG
conducted interviews with BOP staff and inmates from the following institutions:
Federal Correctional Complexes Beaumont and Coleman; Federal Correctional
Institutions Cumberland, Fairton, Hazelton, Morgantown, Waseca, and Yankton;
and U.S. Penitentiary Big Sandy. Finally, we interviewed Wardens from all BOP
contract prisons. We selected these BOP institutions based on analysis of the
number of inmates who had submitted surveys to CP 14.

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APPENDIX 2
NOTICE TO INMATES: INITIATIVE ON EXECUTIVE CLEMENCY

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APPENDIX 3
PARDON ATTORNEY DEBORAH LEFF’S RESIGNATION LETTER

52

APPENDIX 4
OIG’S MANAGEMENT ADVISORY MEMORANDUM TO THE
DEPARTMENT

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59

APPENDIX 5
THE DEPARTMENT’S RESPONSE TO OIG’S
MANAGEMENT ADVISORY MEMORANDUM

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APPENDIX 6
THE DEPARTMENT’S RESPONSE TO THE DRAFT REPORT

63

The Department of Justice Office of the Inspector General (DOJ OIG) is a
statutorily created independent entity whose mission is to detect and deter
waste, fraud, abuse, and misconduct in the Department of Justice, and to
promote economy and efficiency in the Department’s operations.
To report allegations of waste, fraud, abuse, or misconduct regarding DOJ
programs, employees, contractors, grants, or contracts please visit or call the
DOJ OIG Hotline at oig.justice.gov/hotline or (800) 869-4499.

U.S. DEPARTMENT OF JUSTICE OFFICE OF THE INSPECTOR GENERAL
950 Pennsylvania Avenue, Northwest
Suite 4760
Washington, DC 20530-0001
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@JusticeOIG

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