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United States Sentencing Commission - An Analysis of the Implementation of the 2014 Clemency Initiative, 2017

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An Analysis of the Implementation of the
2014 Clemency Initiative

U N I T E D S TAT E S S E N T E NC I NG COM M I S S ION

United States Sentencing Commission
One Columbus Circle, N.E.
Washington, DC 20002
www.ussc.gov

William H. Pryor, Jr.
Acting Chair
Rachel E. Barkow
Commissioner
Charles R. Breyer
Commissioner
Danny C. Reeves
Commissioner
Zachary Bolitho
Ex Officio
J. Patricia Wilson Smoot
Ex Officio

Kenneth P. Cohen
Staff Director
Glenn R. Schmitt
Director
Office of Research and Data

September 2017

An Analysis of the Implementation
of the 2014 Clemency Initiative
Introduction
	 On April 23, 2014, the Department of Justice
announced an initiative to encourage qualified federal
inmates to petition to have their sentences commuted by
President Barack Obama. The stated intent of the initiative
was to lower sentences for non-violent offenders who
“likely would have received substantially lower sentences if
convicted of the same offense” under the law then in effect.
The Department of Justice (DOJ) announced six criteria that
would entitle offenders to be prioritized for consideration
for clemency. Over 24,000 offenders petitioned for clemency
under the initiative, and the President commuted the
sentences of 1,696 of those offenders.
	 This report analyzes the sentence commutations
granted under the initiative. It provides data concerning the
offenders who received a sentence commutation under the
initiative and the offenses for which they were incarcerated.
It examines the extent of the sentence reductions resulting
from the commutations and the conditions that the President
placed on his commutations. It also provides an analysis of
the extent to which these offenders appear to have met the
announced criteria for the initiative. Finally, it provides an
analysis of the number of offenders incarcerated at the time
the initiative was announced who appear to have met the
eligibility criteria for the initiative and the number of those
offenders who received a sentence commutation.

Glenn R. Schmitt, J.D., M.P.P.
Director
Office of Research & Data
Timothy Drisko
Research Data Coordinator
Office of Research & Data
Christina D. Stewart, M.A.
Research Associate
Office of Research & Data

United States Sentencing Commission

Key Findings
The key findings of this report are:
•	 President Obama made 1,928 grants of clemency during his
presidency. Of them, 1,716 were commutations of sentence, more
commutations than any other President has granted.
•	 Of the 1,928 grants of clemency that President Obama made, 1,696
were sentence commutations under the 2014 Clemency Initiative.
•	 The commutations in sentence granted through the Clemency
Initiative resulted in an average sentence reduction of 39.0 percent, or
approximately 140 months.
•	 Of the 1,696 offenders who received a commuted sentence under
the Clemency Initiative, 86 (5.1%) met all the announced Clemency
Initiative factors for consideration.
•	 On April 24, 2014, there were 1,025 drug trafficking offenders
incarcerated in the Federal Bureau of Prisons who appeared to meet
all the announced Clemency Initiative factors. Of them, 54 (5.3%)
received clemency from President Obama.
•	 By January 19, 2017, there were 2,687 drug trafficking offenders who
had been incarcerated in the Federal Bureau of Prisons when the
Clemency Initiative was announced and who appeared to meet all the
announced Clemency Initiative factors. Of them, 92 (3.4%) received
clemency from President Obama.

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An Analysis of the Implementation of the 2014 Clemency Initiative

The President’s Clemency Power
	 The Constitution gives the President the power to
grant clemency to persons who have committed federal
offenses. Article II of the U.S. Constitution provides:
The President . . . shall have Power to grant
Reprieves and Pardons for Offenses against the
United States, except in Cases of Impeachment.1
	 Although the text of the President’s clemency power
uses only the words “reprieves” and “pardons,” the power
is generally understood to extend to five different forms of
clemency: reprieves, pardons, amnesties, remissions, and
commutations.2 This report discusses President Obama’s use
of commutations under the Clemency Initiative; however, the
other forms of clemency will be discussed briefly.

The Five Forms of Clemency
	 A reprieve is a temporary postponement of a
punishment.3 It suspends the execution of the sentence of
the court4 but has no effect on the crime or the punishment
imposed for it.5 In contrast, a pardon relieves the offender of
all punishment for the offense that has or may be imposed.
The President can pardon someone before or after a formal
conviction for a crime;6 however, in practice pardons are
usually granted after a person has been convicted, served the
punishment imposed, and demonstrated rehabilitation by
leading an exemplary life upon release.7
	 Amnesties are, in essence, a type of pardon granted to
a class of people for similar criminal acts.8 Most commonly,
they are granted to a class of offenders who have not been
prosecuted for the offense, often before any arrest for the
crime has been made.9	

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United States Sentencing Commission

	 The President may also order the remission of
fines and forfeitures. This form of clemency requires the
government to return to an offender all or a portion of the
fine and forfeitures which a court ordered accrue to the
government.10
	 Commutations of sentence are the form of clemency11
used for the Clemency Initiative. A commutation does
not relieve the offender of any legal consequence of the
underlying offense, but only adjusts the punishment to
be imposed.12 The most common form of a commutation
is the substitution of a lesser punishment of the same
character for the punishment imposed by a court, such as
the reduction in the length of a sentence of imprisonment.13
But commutations can also involve a change in the type of
punishment itself, such as replacing a sentence of death with
a sentence of life imprisonment.14

The Review of Clemency Petitions
	 Although the power to grant clemency belongs
exclusively to the President, petitions for clemency have
been processed by the Attorney General and his or her staff
since 1852. In 1891, Congress established the Office of the
Pardon Attorney in the Department of Justice, and the “clerk
of pardons” (whom DOJ had renamed “the attorney in charge
of pardons”) became the Pardon Attorney. For most of the
time since, the Pardon Attorney reported directly to the
Attorney General, who then presented the Pardon Attorney’s
recommendations to the White House for decision. Before
1962, the Attorney General sent only those petitions that
were recommended for clemency and all petitions which
involved the death penalty.
	 Beginning in 1962, DOJ also began sending to the
President those petitions which it recommended be denied.
In 1978, the Attorney General delegated supervisory

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An Analysis of the Implementation of the 2014 Clemency Initiative

authority over the Office of the Pardon Attorney to the
Deputy Attorney General (DAG), who continues to supervise
the office today. Under current practice, the DAG sends
the DOJ recommendation to the White House through the
Counsel to the President. In early 2016, DOJ appears to
have revised its policy to also send to the President the
Pardon Attorney’s comments regarding petitions which the
Pardon Attorney recommended be approved but the DAG
recommended be denied.15

Conditioning Grants of Clemency
	 The President may attach conditions to a grant of
clemency. In general, there are few, if any, legal limits on
the conditions that the President may impose.16 The types of
conditions imposed in the past have been wide-ranging, such
as requiring the offender to swear allegiance to the country17
to performing acts of service benefitting the nation.18 While
an offender cannot refuse a commutation outright,19 he or she
can effectively refuse it by refusing to perform a condition
attached to it.20

Grants of Clemency Over Time by Different Presidents
	 In the modern era, President Franklin D. Roosevelt
granted more clemencies than any other president. In his 12
years and one month in office, he granted 2,819 pardons, 488
commutations, 12 reprieves, and 477 remissions.21 President
George H.W. Bush granted the fewest clemencies. During
his four years in office, he granted 74 pardons and three
sentence commutations.
	 President Barack Obama made 1,928 grants of
clemency during his presidency.22 Of them, 1,716 were
commutations of sentence, more commutations than any
other president has granted.23

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United States Sentencing Commission

Figure 1. Grants of Clemency by President Barack Obama
2009-2017
Commutations of
Sentence, Not Part of
Clemency Initiative
1.0%
(n=20)

Pardons
11.0%
(n=212)

Clemency Initiative
Commutations of
Sentence
88.0%
(n=1,696)

The 2014 Clemency Initiative
Announcement
	 On April 23, 2014, Deputy Attorney General James
Cole held a press conference to announce a new Clemency
Initiative. In the press release accompanying the event,
DOJ stated that the Initiative was undertaken “at the behest
of ” President Obama and was intended to lower sentences
for non-violent offenders who “likely would have received
substantially lower sentences if convicted for the same
offenses” had they been sentenced under the law at the time
the Initiative was announced.24
Mr. Cole stated at the press conference:
For our criminal justice system to be effective,
it needs to not only be fair; but it also must be
perceived as being fair. These older, stringent
punishments that are out of line with sentences
imposed under today’s laws erode people’s
confidence in our criminal justice system. I

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An Analysis of the Implementation of the 2014 Clemency Initiative

am confident that this initiative will go far to
promote the most fundamental of American
ideals—equal justice under law.25
	 As discussed above, the announcement of the
Initiative by the Deputy Attorney General was consistent
with historical practice regarding the review of petitions
for clemency, all of which are filed with the Department of
Justice.

Criteria Entitling Offenders to Prioritized Consideration
Under the Initiative
	 At the press conference on the Initiative, Mr. Cole
announced six “criteria” that he said DOJ would consider
when reviewing clemency petitions from federal inmates.
In the press release issued after the event, DOJ stated that
“Under the new initiative, the department will prioritize
clemency applications from inmates who meet all of” the
announced factors.26 The six factors were:
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.27

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United States Sentencing Commission

Effect of Announcing Factors
	 Announcing a set of criteria to be considered when
reviewing petitions for clemency is not unprecedented. DOJ
had previously promulgated what it calls “Rules Governing
Petitions for Executive Clemency.”28 However, these “rules”
are mostly procedural in nature. In fact, in the rules
themselves DOJ states that they are advisory and only for
“the internal guidance of Department of Justice personnel.”
The only provision that appears to limit an applicant’s
eligibility to receive clemency29 is the requirement that
pardon petitions should not be filed until five years after
the petitioner’s release from confinement for the offense for
which the petitioner seeks the pardon.30
	 In announcing the 2014 Clemency Initiative, DOJ
provided six broad factors that it would consider in addition
to those listed in the Code of Federal Regulations; however,
the role that those factors were to play in the decision to
grant clemency under the Initiative is unclear. For example,
while the official DOJ announcement stated that offenders
meeting these criteria would simply qualify for “prioritized
consideration,” at other times DOJ referred to the factors
as “eligibility criteria.”31 In Mr. Cole’s prepared remarks
announcing the Clemency Initiative, which were posted on
the DOJ website, he stated that “the initiative is open to
candidates who meet six criteria.”32 He also noted that  
“[i]dentifying worthy candidates within our large prison
system will be no easy feat” and that “a good number of
inmates will not meet the six criteria.”33 As recently as
August 2017, the DOJ website provided a link to these same
criteria with the words “Read more about who is qualified to
apply for commutation under the new criteria.”34
	 There are few limits on the President’s clemency
power35 and DOJ’s announcement of factors would not limit
the President’s authority to exercise that power to only those

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An Analysis of the Implementation of the 2014 Clemency Initiative

who met the stated criteria. The authors of this publication
presume that, consistent with past practice, DOJ officials
made individualized decisions regarding each petition
for clemency. In so doing, DOJ may have recommended
clemency for some offenders who did not meet all the
announced factors, or may have interpreted the Initiative
factors more broadly than the announced language might
have suggested would have been the case.
	 Finally, the authors acknowledge that the President
may have decided to grant clemency to offenders not meeting
all the announced criteria but whom he determined were
otherwise deserving. In an August 2016 press conference,
President Obama stated that the focus of the Initiative was
on offenders “who we think were overcharged and people who
we do not believe have a propensity towards violence.”36 He
stated that “the main criteria” was whether “under today’s
charges, their sentences would be substantially lower than
the charges that they received . . . .”37 Given this statement,
he may have emphasized these two factors more than the
other announced factors in determining whether to grant
clemency.

Initiative Limited to Drug Trafficking Offenders
	

A review of the offenders granted clemency under
the Initiative shows that at some point the Clemency
Initiative was limited to drug trafficking offenders, as all the
offenders who received commutations under the Initiative
had committed a drug trafficking offense. This focus was not
identified when the Initiative was announced and no formal
public announcement was made later that the Initiative had
been limited to drug trafficking offenders.
	 In August 2016, Deputy Attorney General Sally
Yates, who had succeeded Mr. Cole, did announce that DOJ
would “review and provide a recommendation to the White

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United States Sentencing Commission

House on every petition from a drug offender then in the
Department’s possession.”38 It appears that by that time,
a decision had been made to limit the Initiative to drug
trafficking offenders. Ms. Yates did not state whether DOJ
would continue to act on petitions received from offenders
who had committed other crimes, and DOJ ultimately did
make recommendations to the President on over 4,400
petitions from offenders convicted of offenses other than drug
trafficking.39 Those petitions remained pending at the end of
President Obama’s term in office.
	 The DOJ website about the Initiative, written at the
conclusion of President Obama’s term, states that other
offenses were ones “clearly not falling under the
[I]nitiative” and that DOJ “took steps to ensure that
petitions submitted under the Clemency Initiative would be
identified, prioritized, and sent to the White House during
President Obama’s tenure.”40 As DOJ further explains on
the website, to accomplish that goal, it “prioritized petitions
from individuals convicted of drug trafficking offenses over
the thousands of petitions involving other crimes for which
sentencing law has not changed.”41 The authors cannot
determine whether DOJ continued to make recommendations
to the President after August 2016 regarding petitions from
offenders convicted of other offenses or whether DOJ officials
chose to limit their review after August 2016 to petitions filed
by drug offenders.

Response by the Bar
	 In a January 2014 speech to the New York State Bar
Association, Mr. Cole called upon the members of that bar
and attorneys across the nation to volunteer their time to
assist inmates in seeking a sentence commutation under
the Clemency Initiative, which had yet to be formally
announced.42 Three months later when he announced the

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An Analysis of the Implementation of the 2014 Clemency Initiative

Initiative, Mr. Cole referenced that speech, and noted that
the bar had already responded by establishing “Clemency
Project 2014,” whose members he said would be “working
with inmates who appear to meet the six criteria and request
the assistance of a lawyer.”43
	 Ultimately, almost 4,000 volunteer lawyers worked as
part of Clemency Project 2014.44 They screened requests by
more than 36,000 inmates for assistance from the group.45
The project’s lawyers appear to have applied the Clemency
Initiative criteria as announced46 and determined that
most of the inmates seeking assistance did not meet those
criteria.47 However, the project did submit approximately
2,600 clemency petitions to DOJ, presumably on behalf of
those inmates who did meet all the Initiative criteria,48 and
the project states that its work supported 894 successful
clemency petitions.49

Recommendations by the Office of the Pardon
Attorney
	 The Department of Justice reviewed and made
recommendations to the White House on 6,195 petitions
that had been filed by August 31, 2016.50 Additionally, DOJ
reviewed several hundred petitions filed after that date
which were determined to be “particularly meritorious,” as
well as all applications received from drug offenders who had
been sentenced to life imprisonment, regardless of the filing
date of the application.51 As of January 19, 2017, DOJ had
reviewed and made a recommendation to the President on
16,776 petitions for clemency from drug offenders. However,
as of January 19, 2017, petitions from 7,881 offenders
remained pending. Of those pending petitions, 3,469 were
submitted by drug offenders after August 31, 2016, and 4,412
were filed by offenders convicted of another type of crime.52

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United States Sentencing Commission

Data Analysis of the 2014 Clemency Initiative
Introduction
	 As discussed above, President Obama granted
clemency to 1,928 offenders during his eight years in
office (2009 to 2017). Of those, 1,716 involved a sentence
commutation.53 Ten of President Obama’s sentence
commutations were granted before April 23, 2014, the date
on which the Clemency Initiative was announced. Also, ten
of the 1,706 commutations granted after that date do not
appear to have been granted as part of the Initiative.54 In
total then, President Obama commuted the sentences of
1,696 offenders through the Clemency Initiative.
	 President Obama made 21 separate announcements
granting sentence commutations. The first of these occurred
on November 21, 2011, and the last was announced on
January 19, 2017, one day before he left office.55 The largest
number of commutations granted on a single day occurred on
January 19, 2017, when he commuted the sentences of 330
persons. Each set of commutations was announced through
a press release, which specified a new, shorter sentence or
provided a new release date for the offender.
Figure 2. Number of Commutations Granted by President Barack Obama
2009-2017
350

330

300
250

214

200
150
100

50
0

12

1

8

1

3

8

22

46

95
3

61 58

42

111 102

98

153
72 79

209

An Analysis of the Implementation of the 2014 Clemency Initiative

	 This section of the report will examine the 1,696
commutations and provide an analysis of the offenders who
received a commuted sentence, the crimes for which they had
been sentenced, and the extent to which these offenders met
the announced criteria for the Initiative.56 This section will
conclude with an analysis of the number of offenders who
were incarcerated on the date the Initiative was announced
and who appeared to have met these criteria, and the
number who eventually received clemency.

Demographics of Clemency Recipients
	 Of the 1,696 offenders whose sentences President
Obama commuted through the Clemency Initiative, all but
six were U.S. citizens. Men accounted for 94.0 percent of all
clemency recipients. Most of the clemency recipients were
Black (70.9%), followed by White (19.1%), Hispanic (8.7%),
and Other race offenders (1.3%).
Figure 3. Race/Ethnicity of Offenders Receiving Clemency

Black
70.9%
(n=1,195)

Hispanic
8.7%
(n=147)
Other
1.3%
(n=22)

White
19.1%
(n=321)

13

United States Sentencing Commission

Offense Characteristics
	

All the offenders who received a commutation under
the Clemency Initiative had been sentenced for a drug
trafficking offense.57 Crack cocaine trafficking offenders
accounted for 61.0 percent of all commutations, followed by
methamphetamine (17.4%), powder cocaine (15.4%), and
marijuana trafficking offenders (4.2%).
	

Figure 4. Drug Type for Offenders Receiving Clemency
Powder Cocaine
15.4%
(n=254)

Other Drug
Types
0.6%
(n=10)

Crack Cocaine
61.0%
(n=1,007)

Methamphetamine
17.4%
(n=288)

Marijuana
4.2%
(n=69)

14

Heroin
1.4%
(n=23)

An Analysis of the Implementation of the 2014 Clemency Initiative

	 Almost one-third (n=535, 31.8%) of the Clemency
Initiative offenders had been found at sentencing to have had
a weapon involved in their offense, typically a firearm.58 Of
those 535 offenders, 237 (14.1% of all clemency offenders)
were also convicted of an offense involving the use or
carrying of a firearm during and in relation to a crime of
violence or a drug trafficking crime, or the possession of a
firearm in furtherance of those crimes.59
	

Figure 5. Weapon Involvement of Offenders Receiving Clemency
18 U.S.C. § 924(c)
43.6%
(n=233)

No Weapon
68.3%
(n=1,150)

Weapon
31.8%
(n=535)

Weapon SOC
55.7%
(n=298)

Both
0.7%
(n=4)

	 Most of the offenders receiving commutations did not
have any leadership role in the offense for which they were
sentenced. Only 18.0 percent (n=305) of those offenders
were found to have been an organizer, leader, manager,
or supervisor of a criminal activity.60 However, most of
the offenders also were found to not have been a minor or
minimal participant in their offense.61 Only 26 offenders
(1.5%) received an adjustment to their guideline level based
on having played such a mitigating role in the offense.

15

United States Sentencing Commission

Average Sentence Imposed
	 The average sentence originally imposed on the
offenders who received a commutation was 340 months (over
28 years) of imprisonment. Almost all Clemency Initiative
offenders (95.3%) had been convicted of an offense carrying
a mandatory minimum penalty. Most (89.7%) were charged
in such a way that the mandatory minimum penalty that
applied in the case was ten years or longer. Indeed, most of
the Clemency Initiative offenders (88.2%) received a sentence
of 20 years or longer, or life imprisonment.
Figure 6. Clemency Offenders Convicted of an Offense Carrying a
Mandatory Minimum Penalty

Life
19.8%
(n=306)

240 Months
29.0%
(n=448)

None
4.7%
(n=72)

3 Months
0.1%
(n=1)

12 Months
0.3%
(n=4)

60 Months
5.3%
(n=82)
120 Months
40.8%
(n=630)

	 Most of the offenders convicted of an offense carrying
a mandatory minimum penalty did not receive any form of
relief from the mandatory penalty that applied in their case.
Only seven offenders qualified for relief from the mandatory
penalty pursuant to the statutory “safety valve” exception
to such sentences, which requires courts to sentence
the offender without regard to any otherwise applicable
mandatory minimum punishment when certain conditions
are met.62 And only 65 offenders received relief from

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An Analysis of the Implementation of the 2014 Clemency Initiative

those penalties by providing substantial assistance to the
government in investigating or prosecuting another person.63

Sentence Impact of the Commutations
	 President Obama effectuated his commutations of
sentence under the Clemency Initiative in one of two ways.
For 1,228 offenders he set a new release date in his clemency
order, which commuted the offender’s sentence to that
date. For 468 offenders he instead specified a new, shorter
sentence to be served. Regardless of the method selected,
most offenders were not immediately released by President
Obama’s commutation of their sentence. Less than one-third
(n=493, or 29.1%) were released by January 20, 2017, the
date President Obama left office.64 Almost one-quarter of the
offenders (23.0%) will not be released until after January 20,
2019.
	 President Obama imposed a condition on
approximately one-third (32.6%) of the commutations
that he granted under the Clemency Initiative. In each of
those cases, the condition required the offender to enroll
in residential drug treatment while in the Federal Bureau
of Prisons system.65 All the commutations imposing this
condition were issued on or after August 3, 2016. At least
one offender who received a sentence commutation refused to
accept it by refusing to agree to the condition attached to it.66
	 The sentence commutations granted through the
Clemency Initiative made sizeable reductions in the
sentences imposed on the recipients. The average reduction
in sentence made by a Clemency Initiative commutation was
39.0 percent, representing a reduction in sentence of more
than 11 years (140 months).

17

United States Sentencing Commission

Offenders Receiving Clemency Who Met Each
Initiative Factor
	 As discussed above, DOJ announced six factors that it
planned to consider in reviewing the clemency applications
from federal inmates. At the time, DOJ announced that
it would “prioritize clemency applications” from inmates
who met all the factors.67 However, later it described these
factors as eligibility criteria.68
	 Of the 1,696 offenders who received a sentence
commutation under the Clemency Initiative, 86 (5.1%) met
all the announced factors.69 All but two of the offenders met
at least one of the factors and about three-quarters (78.0%)
met three or more of the announced factors. This section of
the report will examine each of the announced factors of the
DOJ Clemency Initiative and assess the number of offenders
receiving commutations who met each respective factor.
Figure 7. Number of Clemency Factors Met by Offenders Receiving Clemency*
Five
5.1%
(n=86)

Four
35.1%
(n=596)
*See Footnote 69.

18

None
0.1%
(n=2)

One
3.4%
(n=57)

Two
18.5%
(n=314)

Three
37.8%
(n=641)

An Analysis of the Implementation of the 2014 Clemency Initiative

	 The Department of Justice provided no additional
information to the public regarding the Clemency Initiative
factors after they were announced in April, 2014. In
preparing this report, the authors have interpreted each
of the announced factors in light of the plain meaning of
the words used and also in light of another DOJ initiative
announced at approximately the same time that used similar
terms. The authors acknowledge that DOJ or the President
may have interpreted the Initiative factors more broadly.
Factor 1: Lower sentence under current law

	 The first factor was that offenders be “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.” The language used in
this factor did not state how a petitioner could demonstrate
that his or her sentence would be lower today than at the
time he or she was sentenced. The use of the phrase “by
operation of law” suggests that the offender would have to
identify some change in sentencing law that occurred after
the date on which he was sentenced and that any court
sentencing the offender today would likely impose a shorter
sentence because of that change.
	 That interpretation of this factor is consistent
with how DOJ explained its prioritized consideration of
the thousands of petitions it received after the Clemency
Initiative was announced. DOJ stated that it had “prioritized
petitions from individuals convicted of drug trafficking
offenses over the thousands of petitions involving other
crimes for which sentencing law has not changed (emphasis
added).”70 Therefore, DOJ appears to have determined
that the “sentencing law” for drug trafficking offenses had
changed, but that “sentencing law” had not changed for other
offenses.

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United States Sentencing Commission

	 Examining this factor in light of that determination,
there are three events that arguably rise to the level of
a change in sentencing law such that they affected drug
trafficking sentences “by operation of law.” Each is discussed
below.
	

United States v. Booker

	 One of the most significant changes in federal
sentencing law in the last several decades was brought
about by the decision in United States v. Booker,71 in which
the Supreme Court rendered the sentencing guidelines
advisory. Prior to that decision, sentencing courts were
required to impose a sentence within a range determined
under the sentencing guidelines, unless the court identified
extraordinary aggravating or mitigating circumstances.
After the Booker decision, courts had greater discretion to
impose a sentence outside the advisory sentencing range
determined under the guidelines.72
	 Of the 1,696 persons granted clemency under the
Initiative, approximately half (49.2%) were sentenced before
the date of the Booker decision.
Figure 8. Offenders Receiving Clemency Sentenced Before the Decision
in U.S. v. Booker

Post-Booker
50.8%
(n=861)

20

Pre-Booker
49.2%
(n=835)

An Analysis of the Implementation of the 2014 Clemency Initiative

	 For the 50.8 percent who were sentenced after Booker,
that decision could not be the change in law that would lead
a court today to impose a sentence substantially lower than
the original sentence. Moreover, Booker’s holding was not
limited to particular offenses, so it could not be said to be a
change in sentencing law that distinguished drug trafficking
offenses from “other crimes for which sentencing law has not
changed.”
	

Fair Sentencing Act of 2010

	 Another significant change in sentencing law occurred
upon the passage of the Fair Sentencing Act of 2010
(FSA).73 The FSA increased the quantity of crack cocaine
that triggered the five- and ten-year mandatory minimum
penalties in federal drug trafficking cases. Because of that
change, cases involving the trafficking of five or more but
less than 28 grams of crack do not trigger any mandatory
minimum penalty, whereas a five-year penalty had applied
before passage of the FSA. Similarly, in cases involving 28 or
more but less than 280 grams of crack, a five-year minimum
penalty applies after the FSA, whereas a ten-year penalty
would have applied before the Act. Congress did not make
the changes to the statutory mandatory minimum penalty
thresholds retroactive.74 As a result, there were offenders
incarcerated as of 2014 who would have been subject to lower
mandatory minimum penalties had the FSA been in effect
when they were sentenced.
	
	 Although 97.9 percent of the clemency recipients under
the Initiative were sentenced before passage of the FSA,
that Act applied only to crack cocaine offenses. Only 61.0
percent of the Clemency Initiative offenders were convicted
of trafficking crack cocaine. Therefore, the changes in law
made by the FSA would have had no effect on the sentences
of the remaining 39.0 percent of the offenders who received
commutations under the Initiative. For those offenders, the

21

United States Sentencing Commission

FSA could not be a change in law that would lead a court to
impose a lower sentence.
	

Figure 9. Offenders Receiving Clemency Sentenced
Before the Fair Sentencing Act of 2010 (FSA)

Figure 10. Drug Type for Offenders Receiving
Clemency

Post-FSA
2.1%
(n=35)

Pre-FSA
97.9%
(n=1,661)

	

Other Drug
Offenders
39.0%
(n=644)

Crack Cocaine
Offenders
61.0%
(n=1,007)

The 2014 Drug Guidelines Amendment

	 A significant change in sentencing practice which
affected federal drug trafficking offenders was Amendment
782 to the sentencing guidelines, promulgated by the
Sentencing Commission in 2014. That amendment changed
the way in which the base offense levels in the drug and
chemical quantity tables in sections 2D1.1 and 2D1.11 of
the Guidelines Manual incorporate the statutory mandatory
minimum penalties for drug trafficking offenses. Specifically,
the amendment reduced by two levels the offense levels
assigned to the quantities that trigger the statutory
mandatory minimum penalties. Most of the offense levels
for quantities above and below the mandatory minimum
threshold quantities also were adjusted downward by

22

An Analysis of the Implementation of the 2014 Clemency Initiative

two levels. The result of the amendment was to lower
the sentencing ranges for most drug trafficking offenses.
Amendment 782 became effective on November 1, 2014.75
	 All the offenders receiving sentence commutations
through the Initiative were sentenced before Amendment
782 was promulgated. However, the Commission had not
promulgated Amendment 782 as of the date on which the
Clemency Initiative was announced.76 It would have been
premature for DOJ to have concluded that Amendment 782
had changed the law regarding drug trafficking offenses.
Also, given that the Supreme Court has made clear in Booker
and later cases that the guidelines are advisory and that
courts are not bound by them when imposing sentences, it is
unlikely that Amendment 782 was the change in sentencing
that “by operation of law” would cause drug trafficking
offenders to receive a substantially lower sentence today than
before Amendment 782 was promulgated.77
	 If instead the words “by operation of law” and changes
“in sentencing law” were construed to mean changes in
sentencing practices, then Amendment 782 could well have
been a change in sentencing practice that would lead to lower
sentences today for most drug trafficking offenders sentenced
before it went into effect. Also, if changes in sentencing
practices were what was meant by this factor, then Attorney
General Holder’s directive to prosecutors through the
Smart on Crime Initiative78 to charge drug cases in ways
that triggered mandatory minimum penalties less often
would also have led to lower sentences for drug trafficking
offenders sentenced at the time President Obama was acting
on petitions for clemency, as compared to those sentenced
before that initiative was announced.79 Under a “change
in sentencing practice” interpretation of factor 1, therefore,
most if not all of the offenders receiving clemency would have
met this factor.

23

United States Sentencing Commission

Factor 2: Non-violent, low-level offenders

	 The second factor stated that offenders seeking
clemency had to be “non-violent, low-level offenders without
significant ties to large scale criminal organizations, gangs or
cartels . . . .” Most of the offenders receiving clemency under
the Initiative appear to have satisfied this factor.
	

Exclusion of violent offenders

	 The Department of Justice did not define non-violent
for the purpose of reviewing petitions filed under the
Clemency Initiative. Notably, the terms “crime of violence”
and “serious violent felony” appear in federal statutes.80
Each term has a different meaning, but they each define
crimes of violence to mean a felony offense that has as an
element of the offense the use, threatened use, or attempted
use of physical force against a person. Most drug trafficking
offenses charged in federal court do not have the use or
threat of force as an element of the offense.
Figure 11. Offenders Receiving Clemency Meeting Non-Violent Criterion
Violent
0.4%
(n=6)

Non-Violent
99.6%
(n=1,690)

	

24

An Analysis of the Implementation of the 2014 Clemency Initiative

	 Even so, in some cases drug traffickers do use violence
in connection with the offense. The sentencing guidelines
account for this by providing for an enhanced sentence
if violence is used in connection with a drug trafficking
offense.81 Three of the offenders who received clemency
under the Initiative were found to have used violence in
connection with their drug trafficking offense.82 Three other
offenders were convicted of a violent offense in addition to
their drug trafficking crime.83
	

Exclusion of other than “low-level” offenders

	 The Department of Justice also provided no guidance
on which offenders would be considered “low-level” at the
time the Initiative was announced. However, on August 12,
2013, in a speech at the American Bar Association Annual
Convention, Attorney General Eric Holder announced DOJ’s
“Smart on Crime Initiative.” One of the stated goals of that
initiative was “to ensure just punishment for low-level, nonviolent convictions.”84 In a memorandum to United States
Attorneys about the Smart on Crime Initiative issued that
same day, Mr. Holder gave directions regarding a change
in the DOJ charging policy for “non-violent, low-level drug
offenders.”85 In that memorandum, Mr. Holder listed several
criteria that were to guide prosecutors in determining
whether to seek mandatory minimum penalties, stating that
the criteria were “meant for low-level non-violent” offenders.
Among those criteria was that the offender not be “an
organizer, leader, manager or supervisor of others within a
criminal organization . . . .”86
	 Mr. Holder was the Attorney General when both the
Smart on Crime Initiative, and the Clemency Initiative were
announced and DOJ has described the Clemency Initiative
as “an outgrowth” of the Smart on Crime Initiative.87
Presumably then, the term “low-level” has the same meaning
in both initiatives.

25

United States Sentencing Commission

	

Using the definition of low-level drug offenders in
the Smart on Crime Initiative, 82.0 percent of all Clemency
Initiative recipients were low-level offenders. However,
there were 305 offenders (18.0% of all offenders receiving
a commutation) who were found by the sentencing court to
have been an organizer, leader, manager, or supervisor of a
criminal activity.88
Figure 12. Offenders Receiving Clemency Meeting Low-Level Criterion
Not Low-Level
18.0%
(n=305)

Low-Level
82.0%
(n=1,391)

	
	

Exclusion for involvement with large-scale organizations, 	
gangs, or cartels	
	

	 The Commission does not regularly record whether an
offender committed his or her crime while involved with an
organization, gang, or cartel. In some cases, an offender’s
participation in these groups can serve as an element of
the offense, such as in racketeering cases.89 In other cases,
gang participation can enhance the sentence under the
guidelines.90 However, these provisions would not likely
apply in drug cases where the offender was involved with
large-scale organizations other than gangs or was involved
with cartels.

26

An Analysis of the Implementation of the 2014 Clemency Initiative

	 Two of the offenders granted a sentence commutation
received an upward departure at sentencing through
the gang involvement departure provision. Two other
offenders were also convicted of a racketeering offense in
addition to their drug trafficking crime. However, given the
limitations of the data regarding this factor, this finding may
underrepresent the actual number of offenders who were
involved with large-scale organizations, gangs, or cartels.
Figure 13. Offenders Receiving Clemency Who Were Involved with Large-Scale
Organizations, Gangs, or Cartels
Involvement
0.2%
(n=4)

No Involvement
99.8%
(n=1,692)

Factor 3: Ten-year imprisonment limitation

	 The third factor was that offenders seeking clemency
must “have served at least 10 years of their prison sentence.”
Although DOJ did not specify how the amount of time to
be served was to be measured, one possible interpretation
is that it would be measured as of the date on which the
offender’s clemency was announced. Another interpretation
is that the time served would be measured as of the date on
which the offender was to be released.
	 Of the 1,696 persons granted clemency under the
Initiative, 77.4 percent had served at least ten years in
prison by the date their clemency was announced. Another

27

United States Sentencing Commission

11.5 percent of these offenders had served at least nine years
in prison. As discussed above, most clemency recipients were
not released immediately by the President’s order; therefore,
the number who will have served at least ten years of their
sentence by the time they are released will increase. The
Commission estimates that 93.5 percent of all Clemency
Initiative offenders will have served at least ten years in
prison by the time they are released under their commuted
sentences.
Figure 14. Time Served by Offenders Receiving Clemency
(as of date of announcement)
900
800

763

700

Number

600
500
400
300

384

298

200
100

0

Less Than 10

10 to < 15

15 to < 20

Years

217

20 to < 25

34

25 or More

Factor 4: Exclusion for “significant criminal history”

	 The fourth factor required that offenders seeking
clemency not have “a significant criminal history.” As
with the other factors, no further definition of this factor
was provided. However, in the Smart on Crime Initiative
memorandum to prosecutors, Mr. Holder stated that lowlevel, non-violent offenders would not benefit from that policy
if they had “a significant criminal history.”91 He went on to
explain that, “[a] significant criminal history will normally be
evidenced by three or more criminal history points but may
involve fewer or greater depending on the nature of any prior
convictions.”92

28

An Analysis of the Implementation of the 2014 Clemency Initiative

	

As discussed above, given that DOJ has described
the Clemency Initiative as “an outgrowth” of the Smart on
Crime Initiative, it is reasonable to read the term “significant
criminal history” as having the same meaning in both
initiatives. If so, then 86.0 percent of the Clemency Initiative
recipients had a significant criminal history. That is, of the
1,696 offenders receiving a sentence commutation, 1,434 had
a criminal history score of three or more criminal history
points. 	
Figure 15. Criminal History Scores of Offenders Receiving Clemency
100.0%
90.0%
80.0%
70.0%
60.0%
50.0%
40.0%

32.3%

30.0%
20.0%
10.0%

0.0%

7.3%
0
(n=121)

3.6%

1
(n=60)

3.2%

2
(n=53)

6.7%

5.7%

3
(n=111)

4
(n=95)

5.1%

5
(n=85)

10.3%
6
(n=171)

Criminal History Points

5.6%
7
(n=93)

7.3%

7.4%

8
9
(n=122) (n=123)

5.7%
10
(n=95)

More
Than 10
(n=539)

	 Under the sentencing guidelines, an offender’s prior
criminal history is assessed points.93 These points are
then used to assign the offender to one of six “Criminal
History Categories” (CHC). Offenders with three points are
assigned to CHC II.94 Of the offenders receiving a sentence
commutation under the Initiative, 16.2 percent were assigned
to CHC III, 9.6 percent were assigned to CHC IV, 6.2 percent
were assigned to CHC V, and almost half (48.1%) were
assigned to the highest Criminal History Category, CHC VI.
In fact, of the 804 offenders in CHC VI, most (84.5%) had
been found by the sentencing court to be “career offenders.”95

29

United States Sentencing Commission

Figure 16. Criminal History Category of Offenders Receiving Clemency
CHC I
10.7%
(n=179)

CHC II
9.3%
(n=155)

CHC VI
48.1%
(n=804)

CHC III
16.2%
(n=270)

CHC IV
9.6%
(n=160)

CHC V
6.2%
(n=103)

Factor 5: Good conduct in prison

	 The fifth factor required applicants to demonstrate
good conduct in prison. Approximately 60 percent (59.7%) of
the Clemency Initiative offenders had no serious misconduct
while in prison.96 However, about 40 percent (40.3%) of the
Clemency Initiative offenders committed an act that the BOP
classified as a “Greatest Severity Offense” or a “High Severity
Offense.”97 According to BOP policy, both such classes
of misconduct ordinarily result in the loss of some good
conduct credit.98 Almost one-in-five (17.9%) of the Clemency
Initiative offenders committed more than one of these acts of
misconduct.
Figure 17. Offenders Receiving Clemency Who Committed Misconduct
While in Prison

No Serious
Misconduct
in Prison
59.7%
(n=1,012)

30

Serious
Misconduct
in Prison
40.3%
(n=684)

An Analysis of the Implementation of the 2014 Clemency Initiative

Factor 6: No violence prior to or during current term of
imprisonment

	 The last of the announced factors was that offenders
seeking clemency “have no history of violence prior to or
during their current term of imprisonment.” The
Commission does not regularly collect information about the
nature of an offender’s past offenses (i.e., the type of prior
offenses); instead, it collects the number of criminal history
points assessed for the conviction under the sentencing
guidelines. Because of this, Commission data cannot
determine with certainty whether the offenders who received
commutations had any history of violence before they were
incarcerated.
	 That said, generally speaking, some drug trafficking
offenders do have violence in their criminal history. Based
on a sample of offenders sentenced in fiscal year 2015 studied
for another purpose, the Commission found that almost onequarter (23.3%) of all drug trafficking offenders had been
convicted previously of a violent offense. However, while it is
likely that some of the offenders who petitioned for clemency
had violence in their past, the authors cannot assess whether
any of the offenders who received clemency had a violent
criminal history.
Figure 18. Offenders Receiving Clemency Who Used Violence While in Prison
Violent
Misconduct in
Prison
14.6%
(n=248)

No Violent
Misconduct in
Prison
85.4%
(n=1,448)

31

United States Sentencing Commission

	 It is possible to determine whether any of the
offenders receiving clemency committed a violent act while
incarcerated. As discussed above, 40.3 percent of the
Clemency Initiative offenders committed an act that the
BOP classified as a “Greatest Severity Offense” or a “High
Severity Offense” while they were incarcerated. Of these,
248 offenders (14.6% of all Clemency Initiative offenders)
committed an act of misconduct that involved violence.99

Number of Incarcerated Offenders Appearing to
Meet All DOJ Factors at Time of Clemency Initiative
	 As discussed above, more than 24,000 offenders filed
petitions seeking clemency after April 23, 2014, the date
on which the Initiative was announced.100 Eventually,
eligibility for commutations under the Initiative was limited
to only drug trafficking offenders. Ultimately, DOJ reviewed
and made recommendations to the White House on 16,776
petitions received from drug traffickers,101 1,696 of which
were granted. As of January 19, 2017, however, petitions
from 7,881 offenders remained pending.102 Of those petitions
pending review, 3,469 petitions were submitted by drug
trafficking offenders and the rest from offenders sentenced
for other crimes.103
	 On April 24, 2014, the day after the Clemency
Initiative was announced, approximately 196,000 offenders
were incarcerated in the BOP system serving sentences for
federal crimes. Of them, slightly more than half (53.2%)
were serving a sentence for drug trafficking. This section
of the report analyses the number who met each of the
Initiative criteria and the number who met all the criteria.
As discussed above, in performing this analysis the authors
have applied each of the criteria using the plain meaning of
the words used and the meaning given to similar terms used
in connection with DOJ’s Smart on Crime Initiative.

32

An Analysis of the Implementation of the 2014 Clemency Initiative

	 Of the approximately 104,000 drug trafficking
offenders incarcerated on April 24, 2014, most (88.1%) were
sentenced after the Booker decision. Just under half (45.6%)
of those offenders were sentenced before the crack penalty
changes made by the Fair Sentencing Act became effective,
although only one-quarter (26.1%) of all drug trafficking
offenders were crack offenders who would have been
affected by that change in the law. However, all these drug
trafficking offenders were sentenced before Amendment 782
to the sentencing guidelines became effective.
	 Of the approximately 104,000 drug trafficking
offenders, most (98.1%) had not used violence in connection
with their federal offense. Most (85.6%) also had not been
found to have had an aggravating role in the offense, either
as a manager, supervisor, organizer, or leader. Only 72 of
the offenders received an upward departure in their sentence
due to gang involvement in connection with their offense.
About one-in-ten of these offenders (n=13,321, 12.8%) had
served ten years or longer in prison by April 24, 2014, and
one in five (n=26,311, 25.2%) had served ten years or longer
by January 19, 2017.
	 About one-third of the drug trafficking offenders
(37.4%) had a criminal history score of less than three points.
In contrast, almost one-in-four (23.0%) were assigned to the
highest Criminal History Category and 16.1 percent were
deemed to be career offenders. Seventy percent (70.5%) had
no serious misconduct while in prison, and 87.3 percent had
no violent misconduct while in prison.
	 Examining all the announced Clemency Initiative
factors together, the Commission estimates that 1,025
of the approximately 104,000 drug trafficking offenders
incarcerated on April 24, 2014 met all the Clemency
Initiative criteria.104 That is, these offenders had served “at
least 10 years” in prison, did not have an aggravating role in

33

United States Sentencing Commission

the offense, had no gang involvement, had a criminal history
score of less than three, did not commit misconduct while
in prison, and did not commit violence while incarcerated.
Of these 1,025 offenders, only 54 received a sentence
commutation through the Clemency Initiative. Therefore,
971 offenders who were incarcerated when the Clemency
Initiative was announced appear to have met all the factors
for clemency under the Initiative but did not obtain relief.
	 If instead the number of eligible incarcerated offenders
was determined as of the last day on which President
Obama granted commutations under the Initiative, January
19, 2017, then 2,687 of the approximately 104,000 drug
trafficking offenders who incarcerated when the Initiative
was announced appear to have met all the Clemency
Initiative criteria.105 Of those offenders, 92 received clemency
under the Initiative. Therefore, there were 2,595 offenders
incarcerated when the Clemency Initiative was announced
who appear to have met all the factors for clemency under
the Initiative at the end of President Obama’s term in office
but who did not obtain relief.
Figure 19. Incarcerated Offenders Appearing to Meet All DOJ Factors
April 24, 2014
(N=1,025)
Met Criteria,
Received Clemency
5.4%
(n=54)

Met Criteria,
Did Not Receive Clemency
94.6%
(n=971)

34

January 19, 2017
(N=2,687)
Met Criteria,
Received Clemency
3.4%
(n=92)

Met Criteria,
Did Not Receive Clemency
96.6%
(n=2,595)

An Analysis of the Implementation of the 2014 Clemency Initiative

	 The authors are unable to determine whether these
offenders submitted petitions for clemency, which would have
been required in order to be considered under the Initiatve.
It is also possible that petitions from many or all these
offenders are among the approximately 3,500 petitions from
drug trafficking offenders that remained pending at the end
of President Obama’s term in office.106 Further, because the
Commission’s data do not contain information about violence
in an offender’s criminal history, the authors cannot assess
the full extent to which any of these offenders satisfied that
aspect of factor six. Due to these limitations, readers should
interpret these findings with caution.

Conclusion
	 President Barack Obama granted clemency to 1,928
persons during his eight years in office. Most of these grants
took the form of sentence commutations. Of the 1,716
sentence commutations he granted, 1,696 were made through
the 2014 Clemency Initiative.
	 The stated intent of the Clemency Initiative was to
lower sentences for non-violent offenders who “likely would
have received substantially lower sentences if convicted of
the same offense” under the law then in effect. At some point
after it was announced, the scope of the Initiative was limited
to drug trafficking offenders. The offenders who received
commutations through the Initiative saw their sentences
reduced by an average of 39.0 percent, or approximately 140
months.
	 Although DOJ announced factors that it stated would
be considered when recommending petitions for clemency to
the President, only 86 of the 1,696 offenders who received a
commuted sentence under the Clemency Initiative appear to

35

United States Sentencing Commission

have met all the announced factors. Many other offenders
also appear to have met the announced factors yet were not
offered clemency. By the end of President Obama’s term
in office there were almost 2,600 offenders who had been
incarcerated when the Clemency Initiative was announced
and who appeared to meet all the announced factors for
consideration under the Initiative but who did not receive
any form of clemency.
	 Because DOJ did not provide any public information
as to what each factor meant, it is impossible to assess the
extent to which the factors, as announced, contributed to the
President’s ultimate decision as to whom to grant clemency.
As has been discussed, it is possible that all the offenders
receiving sentence commutations under the Initiative met
these factors, albeit with the factors interpreted more broadly
than as discussed in this report. It may also have been that
President Obama chose to emphasize some of the factors over
others. The analyses in this report are presented to provide
information about who received sentence commutations
under the Initiative, the effect of those commutations on
the sentences for those offenders, and the extent to which
it appears that the announced factors were followed. The
analysis of other offenders who may have met the announced
criteria but did not receive clemency as of the end of
President Obama’s term in office is presented in order to
provide some data regarding the overall reach of the 2014
Clemency Initiative.
	

36

An Analysis of the Implementation of the 2014 Clemency Initiative

37

United States Sentencing Commission

Endnotes
1	

U.S. Const. art. II, § 2, cl. 1.

2	
Rachel E. Barkow, Clemency and Presidential Administration
of Criminal Law, 90 N.Y.U. L. Rev. 802, 811 (2015); Brian M. Hoffstadt,
Normalizing the Federal Clemency Power, 79 Tex. L. Rev. 561, 570 nn.3742 (2001); Daniel, T. Kobil, The Quality of Mercy Strained: Wresting the
Pardoning Power from the King, 69 Tex. L. Rev. 569, 575 (1990-1991).
3	

See Ex Parte United States, 242 U.S 27, 43–44 (1916).

4	

W.H. Humbert, The Pardoning Power of the President 26 (1941).

5	
Reprieves are rarely given. According to the statistics published
by the Office of the Pardon Attorney at the Department of Justice, the
last president to grant a reprieve was Franklin D. Roosevelt in 1937.
Office of the Pardon Attorney, U.S. Dep’t of Justice, Clemency Statistics,
https://www.justice.gov/pardon/clemency-statistics [hereinafter DOJ
Clemency Statistics].
6	
Ex Parte Garland, 71 U.S. (4 Wall.) 333, 380 (1866). At the
Constitutional Convention one delegate proposed to limit the president’s
power to grant a pardon until after conviction for the crime, however, the
motion was withdrawn after some discussion. Humbert, supra note 4, at
16.
7	
Barkow, supra note 2, at 811; Kobil, supra note 2, at 602. See
also U.S. Dep’t of Justice, Rules Governing Petitions for Executive
Clemency §1.2 (2017) (providing that pardon petitions should not be filed
until “at least five years after the date of release of the petitioner from
confinement” and further providing that petitions should not be filed
while the offender is on probation, parole, or supervised release), https://
www.justice.gov/pardon/rules-governing-petitions-executive-clemency.
8	
Hoffstadt, supra note 2, at 570 n.42. See also Knote v. United
States, 95 U.S. 149, 153 (1877) (noting that the Constitution does not
use the word “amnesty” and that “the distinction between [pardon and
amnesty] is one rather of philological interest than of legal importance.”).
But see Burdick v. United States, 236 U.S. 79, 94–95 (1915) (“They are
of different character and have different purposes. The one overlooks
offense; the other remits punishment.”).

38

An Analysis of the Implementation of the 2014 Clemency Initiative

9	
The use of the amnesty form of presidential clemency extends
back to the very first president, who pardoned participants in the Whisky
Rebellion in 1795. See Jeffrey Crouch, The Presidential Pardon Power
55–56 (2009). There, citizens in Western Pennsylvania had organized
protests of an excise tax on whiskey. The government sent 13,000 militia
to end the protests and some of the leaders of the protest were tried for
treason. Washington pardoned the two leaders who had been convicted
of treason and granted amnesty to the rest of the participants. Id. See
also Kobil, supra note 2, at 592 (citing Presidential Proclamation (July
10, 1795), reprinted in 1 A Compilation of the Messages and papers
of the Presidents, 1789–1897 173 (James D. Richardson ed. 1917).
P.S. Ruckman, Jr., Executive Clemency in the United States: Origins,
Development and Analysis 6 (1900–1993). Perhaps the most well-known
examples of the presidential use of amnesty were the proclamations by
Presidents Lincoln and Andrew Johnson to grant amnesty to persons
who fought against the Union and by Presidents Ford and Carter to
grant amnesty to Vietnam draft offenders and servicemembers who
were absent without leave during the war. Kobil, supra note 2, at
593; Ruckman, supra, at 8. For a detailed discussion of the Civil War
amnesties, see William F. Duker, The President’s Power to Pardon: A
Constitutional History, 18 William & Mary L. Rev. 475, 509–521 (1977).
For a discussion of the Vietnam War amnesties see generally Presidential
Clemency Board, Report to the President (1975); Proclamation 4483, 3
C.F.R. § 4 (1978).
10	

Kobil, supra note 2, at 577.

11	
The Supreme Court has held that commutations are a form
of clemency. Ex Parte Wells, 59 U.S. (18 How.) 307, 316, 15 L.Ed. 421
(1856); Biddle v. Perovich, 274 U.S. 480 (1927).
12	
See Humbert, supra note 4, at 27 (noting that a commutation
does not restore the privilege to vote or the competency to testify).
13	

See Humbert, supra note 4, at 27.

14	
Scheck v. Reed, 419 U.S. 256, 266 (1974) (“The plain purpose of
the broad power conferred by [article II, §] 2, cl. 1, was to allow plenary
authority in the President to ‘forgive’ the convicted person in part or
entirely, to reduce a penalty in terms of a specified number of years,
or to alter it with conditions which are in themselves constitutionally
unobjectionable.”).

39

United States Sentencing Commission

15	
See Letter from Deborah Leff, Pardon Attorney, U.S. Dep’t of
Justice, to Sally Quillian Yates, Deputy Attorney General, U.S. Dep’t of
Justice (January 15, 2016) (on file with the author). See also Gregory
Korte, Former administration pardon attorney suggests broken system in
resignation letter, USA Today (March 28, 2016), https://www.usatoday.
com/story/news/politics/2016/03/28/former-administration-pardonattorney-suggests-broken-system-resignation-letter-obama/82168254/.
16	
The Supreme Court has held simply that any condition or
conditions imposed cannot “in themselves offend the Constitution.”
Schick v. Reed, 419 U.S. 256, 264 (1974) (upholding commutation of death
sentence to life imprisonment without the possibility of parole).
17	
Kobil, supra note 2, at 593, Harold J. Krent, Conditioning the
President’s Conditional Pardon Power, 89 Cal. L. Rev. 1665, 1676 (2001).
18	
Id.; Presidential Clemency Board, Report to the President 15,
17–20 (1975).
19	
Biddle v. Perovich, 274 U.S. 480, 487 (1927). In contrast,
pardons usually must be accepted to be effective. Duker, supra note 9, at
521; Humbert, supra note 4, at 64–68.
20	
Indeed, one offender who received a commutation of sentence
under the Clemency Initiative refused to perform the condition attached
to it, thereby refusing the commutation itself. Gregory Kote, Obama
grants clemency to inmate – but inmate refuses, USA Today (October 14,
2016), https://www.usatoday.com/story/news/politics/2016/10/14/obamagrants-clemency-inmate-refuses-arnold-ray-jones/92005682/.
21	

DOJ Clemency Statistics, supra note 5.

22	

DOJ Clemency Statistics, supra note 5.

23	
Woodrow Wilson granted the second highest number of
commutations (1,366) during his eight years in office. DOJ Clemency
Statistics, supra note 5.
24	
Press Release, U.S. Dep’t of Justice, Announcing New Clemency
Initiative, Deputy Attorney General James M. Cole Details Broad New
Criteria for Applicants (April 23, 2014) (on file with author, also available
at https://www.justice.gov/opa/pr/announcing-new-clemency-initiativedeputy-attorney-general-james-m-cole-details-broad-new) [hereinafter
DOJ Clemency Initiative Press Release].

40

An Analysis of the Implementation of the 2014 Clemency Initiative

25	
Office of the Pardon Attorney, U.S. Dep’t of Justice, Clemency
Initiative Webpage, https://www.justice.gov/pardon/clemency-initiative
[hereinafter DOJ Clemency Initiative Webpage].
26	
DOJ Clemency Initiative Press Release, supra note 24. DOJ
used the terms “criteria” and “factors” interchangeably when discussing
the Initiative.
27	

DOJ Clemency Initiative Press Release, supra note 24.

28	
See U.S. Dep’t of Justice, Office of the Pardon Attorney webpage,
https://www.justice.gov/pardon; 28 C.F.R. §§ 0.35, 0.36).
29	
Id. However, the Office of the Pardon Attorney has a list of
“standards” it considers in determining whether to recommend that a
petition be granted. Included among them are post-conviction conduct,
character and reputation; seriousness and relative recentness of the
offense; acceptance of responsibility, remorse, and atonement; and official
recommendations and reports (i.e., the prosecutor and judge in the case).
U.S. Dep’t of Justice, United States Attorneys’ Manual
§ 1-2.112 (2017) (Standards for Considering Pardon Petitions). In those
standards DOJ notes that “Generally, commutation of sentence is an
extraordinary remedy that is rarely granted.” Id. at § 1-2.113 (Standards
for Considering Commutation Petitions).
30	
At least one court held that DOJ regulations addressing the
form or requirements for petitions for clemency are not binding, and do
not limit the President’s “plenary power under the Constitution to grant
pardons and reprieves” to any individual he deems fit, irrespective of
whether an application has been filed. Hoffa v. Saxbe, 378 F. Supp. 1221,
1243 (D.C. 1974).
31	

DOJ Clemency Initiative Webpage, supra note 25.

32	
See Remarks as Prepared for Delivery by Deputy Attorney
General James M. Cole at the Press Conference Announcing the
Clemency Initiative, Washington, DC, Wednesday, April 23, 2014
[hereinafter Cole April 2014 Prepared Remarks], https://www.justice.gov/
opa/speech/remarks-prepared-delivery-deputy-attorney-general-james-mcole-press-conference.
33	

Id.

41

United States Sentencing Commission

34	

DOJ Clemency Initiative Webpage, supra note 25.

35	
It is generally accepted that there are three broad limitations on
the President’s exercise of the clemency power. First, as the text of the
pardon power itself makes clear, the President has no power over “Cases
of Impeachment.” Ex Parte Garland, 71 U.S. (4 Wall.) 333, 380 (1866).
Second, the President’s power extends only to federal offenses. Ex Parte
Grossman, 267 U.S. 87, 113 (1925). Third, the crime must precede
the pardon; that is, the President may not pardon an act before it has
occurred. Duker, supra note 9, at 525–26.
36	
The President’s News Conference at the Pentagon in
Arlington, Virginia, 509 Daily Comp. Press. Doc. 11 (Aug. 4, 2016),
https://www.gpo.gov/fdsys/browse/collection.action?collectionCode=CPD&browsePath=2016%2F08&isCollapsed=false&leafLevelBrowse=false&isDocumentResults=true&ycord=265 [hereinafter President’s News
Conference].
37	

Id.

38	

DOJ Clemency Initiative Webpage, supra note 25.

39	

DOJ Clemency Initiative Webpage, supra note 25.

40	

DOJ Clemency Initiative Webpage, supra note 25.

41	

DOJ Clemency Initiative Webpage, supra note 25.

42	
See Remarks as Prepared for Delivery by Deputy Attorney
General James Cole at the New York State Bar Association Annual
Meeting, New York, NY, Thursday (January 30, 2014), https://www.
justice.gov/opa/speech/remarks-prepared-delivery-deputy-attorneygeneral-james-cole-new-york-state-bar.
43	

Cole April 2014 Prepared Remarks, supra note 32.

44	
See Clemency Project 2014 webpage, https://www.nacdl.org/
cp2014/ [hereinafter Clemency Project 2014 Initiative Webpage].
45	

Id.

46	
See Lawyers Committee for Civil Rights, Clemency 2014
webpage, https://lawyerscommittee.org/special-initiatives/criminaljustice-initiative/clemency-project-2014/ (“Applicants must meet ALL

42

An Analysis of the Implementation of the 2014 Clemency Initiative

factors to be eligible under the Administration’s clemency initiative.”).
47	
Clemency Project 2014 Webpage, supra note 44 (“The Project’s
painstaking review of [requests for volunteer assistance from 36,000
federal offenders] revealed that the overwhelming majority of those
requests were by applicants who did not meet the criteria put forward by
the Department of Justice in April 2014.”).
48	
Given that the Clemency Project 2014 noted that the
“overwhelming majority” of the offenders seeking its assistance did not
meet the announced criteria, the authors presume that the project’s
lawyers only filed petitions on behalf of offenders who did meet the
criteria. Also, when DOJ described the Clemency Project 2014 on its
Clemency Initiative webpage, DOJ observed, “Inmates who appeared to
meet the six criteria were offered the assistance of an experienced pro
bono attorney through CP2014 in preparing his or her application for
clemency.” DOJ Clemency Initiative Webpage, supra note 25.
49	

Clemency Project 2014 Webpage, supra note 44.

50	
DOJ later stated that the Office of the Pardon Attorney
“applied a ‘grace period’ and considered all petitions received by mail by
September 15, 2016, to assure that all petitions mailed in August were
considered.” DOJ Clemency Initiative Webpage, supra note 25.
51	

DOJ Clemency Initiative Webpage, supra note 25.

52	

DOJ Clemency Initiative Webpage, supra note 25.

53	
DOJ lists this number as 1,715. DOJ Clemency Initiative
Webpage, supra note 25. However, DOJ does not appear to count one
offender who was granted clemency but later refused to perform the
condition attached to it. See infra note 66 and accompanying text. The
Commission has included this offender in its analysis.
54	
Three offenders received a sentence commutation in order to
make them available as part of a prisoner transfer with Iran. Gregory
Korte, Obama grants clemency to 7 Iranians in prisoner swap, USA
Today (January 17, 2017), http://www.usatoday.com/story/news/
politics/2016/01/17/obama-grants-clemency-7-iranians-prisonerswap/78923966/. Three espionage offenders were granted commutations
as part of a prisoner exchange with Cuba. Mimi Whitefield, After a half
century, a thaw in U.S.-Cuba ties, Miami Herald (December 17, 2014),

43

United States Sentencing Commission

http://www.miamiherald.com/news/nation-world/world/americas/cuba/
article4591603.html. A former member of the FALN terrorist group
also received a sentence commutation. Charles Lane, Commentary:
The Obama pardon you should be mad about: Oscar Lopez Rivera, Chi.
Trib. (January 19, 2017), http://www.chicagotribune.com/news/opinion/
commentary/. Two offenders who had been convicted in a military
court, one for murder and robbery and one for disclosing classified
information, also received sentence commutations. Ellen Nakashima
and Sari Horwitz, Obama commutes sentence of Chelsea Manning, soldier
convicted for leaking classified information, Wash. Post (January 17,
2017), https://www.washingtonpost.com/world/national-security/obamalargely-commutes-sentence-of-chelsea-manning-us-soldier-convictedfor-leaking-classified-information/2017/01/17/f3205a1a-dcf8-11e6-ad42f3375f271c9c_story.html?utm_term=.ca9e0852f203; One of the military
offenders had been sentenced to death. His sentence was commuted to
life imprisonment. Another offender convicted of murder in connection
with drug trafficking also received a commutation to life imprisonment.
Debra Cassens Weiss, Obama’s overlooked last-minute commutation lifts
death sentence for disabled inmate, ABA Journal (January 18, 2017),
http://www.abajournal.com/news/article/federal_death_row_inmate_is_
among_those_winning_sentence_commutatoins/.
55	
Eighteen of the 21 announcements came after the Clemency
Initiative was announced in April, 2014.
56	
The Commission matched its records with all these offenders.
However, some cases were missing the information necessary for some
of the analyses discussed in this report. Cases missing the information
necessary for any specific analysis were excluded from that analysis only.
57	
Some of the Clemency Initiative offenders were also convicted of
a firearm, money laundering, racketeering, or robbery offense. Under the
Commission’s policy for classifying offenders based on the primary offense
involved in the case, which is based on the highest applicable statutory
maximum penalty that may be imposed and certain other factors, some
Clemency Initiative offenders are deemed to be one of these other three
types of offenders in the Commission’s data.
58	
In the cases involving 302 of these offenders, the court applied
one of the specific offense characteristics (SOC) of the sentencing
guidelines that serve to increase the guidelines sentencing range for the
possession or use of a weapon in connection with the offense. See, e.g.,
U.S. Sentencing Comm’n, Guidelines Manual, §2D1.1(b)(1) (Nov. 2016)

44

An Analysis of the Implementation of the 2014 Clemency Initiative

[hereinafter USSG]. This enhancement applies if the weapon is present
during a drug trafficking crime, unless it is clearly improbable that the
weapon was connected to the offense. The government is not required to
prove that the offender personally possessed the weapon.
59	
See 18 U.S.C. § 924(c). Offenses under section 924(c) involve the
use or carrying of a firearm during and in relation to a crime of violence
or drug trafficking crime, or the possession of a firearm in furtherance of
those crimes. The statute provides for a mandatory minimum penalty of
5, 7 or 10 years for a first offense, depending on the nature of the conduct
involving the weapon. Second and subsequent convictions carry a
25-year minimum penalty. All penalties imposed under section 924(c)
must be served consecutively to any punishment imposed for the
underlying crime.
60	
See USSG §3B1.1 (Aggravating Role) for further discussion of
how the sentencing guidelines address an offender’s aggravating role in
the offense.
61	
See USSG §3B1.1 (Mitigating Role) for further discussion of how
the sentencing guidelines address an offender’s mitigating role in the
offense.
62	
18 U.S.C. § 3553(f). This provision requires courts to impose a
sentence on a non-violent offender with no or limited criminal background
without regard to a statutory mandatory minimum punishment when
certain other conditions are met.
63	
Of these 65 offenders, 53 received relief from the mandatory
minimum penalty at the time of original sentence by providing
substantial assistance to the government prior to the date on which they
were sentenced. See 18 U.S.C. § 3553(e). Thirteen offenders provided
substantial assistance to the government after they were sentenced,
and so were entitled to be resentenced below the minimum sentence
established by statute. See Fed. R. Crim. P. 35(b). Of the 65 offenders,
one received relief by providing both types of substantial assistance to the
government.
64	
Based on BOP data provided to the Commission identifying
those offenders incarcerated on February 25, 2017. As of June 1, 2017,
811 of the Clemency Initiative offenders had been released. Three of
those had been rearrested for a new crime. Statement of Jose Santana,
Chief, Designation & Sentence Computation Center, Federal Bureau of

45

United States Sentencing Commission

Prisons during a presentation at the USSC National Training Seminar,
Baltimore Maryland, June 1, 2017.
65	
For more information about the BOP’s Residential Drug Abuse
Treatment Program see https://www.bop.gov/inmates/custody_and_care/
substance_abuse_treatment.jsp.
66	
Gregory Korte, Obama grants clemency to inmate -- but inmate
refuses, USA Today (October 14, 2016), http://www.usatoday.com/story/
news/politics/2016/10/14/obama-grants-clemency-inmate-refuses-arnoldray-jones/92005682/.
67	

DOJ Clemency Initiative Press Release, supra note 25.

68	

See supra notes 31–34 and accompanying text.

69	
Consideration of the “operation of law” factor was omitted from
this analysis due to the uncertainty as to the meaning of that factor, as
discussed infra at notes 70–79 and accompanying text.
70	

DOJ Clemency Initiative Webpage, supra note 25.

71	

United States v. Booker, 543 U.S. 220 (2005).

72	
However, both before and after the Booker decision, courts
were required to comply with the sentencing requirements of 18 U.S.C.
§ 3553(a)(1) other than those involving the guidelines. See also Gall v.
United States, 552 U.S. 38, 49 (2007) (courts are still required to begin all
sentencing proceedings by correctly calculating the guideline sentencing
range).
73	

Fair Sentencing Act of 2010 (Pub. L. 111–220).

74	
In response to the passage of the FSA, the Commission
promulgated an amendment to the sentencing guidelines to incorporate
the new mandatory minimum penalty thresholds into the guidelines.
USSG App. C, amend. 750 (effective Nov. 1, 2010). The Commission
made that change retroactive. USSG App. C, amend. 759 (effective Nov.
1, 2010). As of December 2014, 7,748 offenders had received a reduction
in sentence as a result of that decision. See U.S. Sentencing Comm’n,
Final Crack Retroactivity Data Report Fair Sentencing Act 4 (2014).
75	

46

See USSG App. C, amend. 782 (effective Nov. 1, 2014).

An Analysis of the Implementation of the 2014 Clemency Initiative

76	
The Commission voted to promulgate Amendment 782 on April
10, 2014. See U.S. Sentencing Comm’n, Public Meeting Minutes April
10, 2014 (2014), http://www.ussc.gov/policymaking/meetings-hearings/
public-meeting-april-10-2014. The Commission formally transmitted this
amendment to Congress on April 30, 2014. U.S. Sentencing Comm’n,
Notice of submission to Congress of amendments to the sentencing
guidelines effective November 1, 2014; and request for comment, 79 Fed.
Reg. 25996 (proposed May 6, 2014). Congress then had 180 days to vote
to disapprove the amendment before it went into effect. 28 U.S.C. §
994(p).
77	
The Commission voted to give retroactive effect to Amendment
782. As of June 30, 2017, over 30,000 offenders had been resentenced
to a lower sentence under the amendment. The average reduction in
sentence was 17.2%. U.S. Sentencing Commission, 2014 Drug Guidelines
Amendment Retroactivity Data Report, Table 7 (July 2017). Of the 1,696
offenders who received a commutation under the Clemency Initiative,
85 had previously obtained a lowered sentence through the retroactive
application of Amendment 782 by the sentencing court.
78	

See infra footnote 85 and accompanying text.

79	
The Smart on Crime Initiative was in effect through the end
of President Obama’s term, and therefore during the time in which all
Clemency Initiative petitions were granted. See infra footnote 85 and
accompanying text. The Smart on Crime Initiative was largely repealed
by a directive by Attorney General Jeff Sessions to federal prosecutors in
May 2017. See Memorandum to All Federal Prosecutors from Attorney
General Jeff Sessions, Department Charging and Sentencing Policy (May
10, 2017).
80	
See 18 U.S.C. § 16 (crime of violence); 18 U.S.C. § 924(c)(3)
(crime of violence); 18 U.S.C. § 3559(c)(2)(F) (serious violent felony).
81	
See USSG §2D1.1(b)(2), providing for a two-level increase in
offense level if “the defendant used violence, made a credible threat to use
violence, or directed the use of violence.” However, this provision was not
added until 2010. USSG App. C, amend. 750 (effective Nov. 1, 2010).
82	
For this part of the analysis, an offender’s possession of a
weapon in connection with the offense was not considered to be violence.
Had it been, another 533 offenders would not have met this factor.

47

United States Sentencing Commission

83	
Possession of a weapon in connection with a drug trafficking
offense does not appear to have been considered a violent act. See
President’s News Conference, supra note 36.
84	
U.S. Dep’t of Justice, Smart on Crime Reforming the Criminal
Justice System for the 21st Century 1 (2013).
85	
Memorandum to United States Attorneys and Assistant
Attorney General for the Criminal Division from Attorney General Eric
Holder, Department Policy on Charging Mandatory Minimum Sentences
and Recidivist Enhancements in Certain Drug Cases (August 12, 2013)
[hereinafter AG Smart on Crime Memo].
86	

Id.

87	

DOJ Clemency Initiative Press Release, supra note 25.

88	
Offenders who a court finds have performed this role in the
offense receive an upward adjustment in the offense level assigned to that
offense under the sentencing guidelines. See USSG §3B1.1 (Aggravating
Role).
89	
See 18 U.S.C. § 1962 (illegal activity in connection with
racketeer influenced and corrupt organizations).
90	
See, e.g., USSG §5K2.18 (providing for an upward departure in
cases where the offender was subject to an enhanced sentence under 18
U.S.C. § 521 for participating in a criminal street gang).

48

91	

Id.

92	

AG Smart on Crime Memo, supra note 85.

93	

See generally USSG, Ch. 4.

94	
points.

CHC II contains offenders with two or three criminal history

95	

See USSG §4B1.1 for a discussion of career offender status.

96	

Based on BOP data provided to the Commission at its request.

97	

See Fed. Bureau of Prisons, U.S. Dep’t of Justice, Program

An Analysis of the Implementation of the 2014 Clemency Initiative

Statement 5270.090 “Inmate Discipline Program” (July, 2011).
98	
See 18 U.S.C. § 3624(b) (providing for credit towards the service
of a sentence of imprisonment of more than one year if the inmate
demonstrates “exemplary compliance with institutional disciplinary
regulations”).
99	
The most common violent acts that the Clemency Initiative
offenders committed while incarcerated were fighting with another
person (162 offenders) or assaulting another person without imposing
serious bodily harm (55 offenders).
100	
DOJ Clemency Initiative Webpage, supra note 25. Although
DOJ does not report the total number of petitions, it does report that DOJ
acted on 16,776 petitions from drug offenders, while 7,881 commutation
petitions remained pending as of January 19, 2017.
101	

DOJ Clemency Initiative Webpage, supra note 25.

102	

DOJ Clemency Initiative Webpage, supra note 25.

103	

DOJ Clemency Initiative Webpage, supra note 25.

104	
Consideration of the “operation of law” factor was omitted from
this analysis due to the uncertainty as to the meaning of that factor, as
discussed supra at notes 70–79 and accompanying text.
105	
Consideration of the “operation of law” factor was omitted from
this analysis due to the uncertainty as to the meaning of that factor, as
discussed supra at notes 70–79 and accompanying text.
106	
As of August 2017, President Trump had made one grant of
clemency. DOJ Clemency Statistics, supra note 5.

49

United States Sentencing Commission

Appendix
	 The Commission collects data regarding every federal
felony and Class A misdemeanor case sentenced during each
fiscal year. Pursuant to 28 U.S.C. § 994(w)(1), the chief
judge of each district is required to ensure that within 30
days of entry of judgment in a criminal case, the sentencing
court submits a report of sentence to the Commission that
includes: (1) the judgment and commitment order; (2) the
written statement of reasons; (3) any plea agreement; (4) the
indictment or other charging document; (5) the presentence
report; and (6) any other information the Commission
requests.
	 Data from these documents are extracted and
coded for input into various databases. For each case in
its Offender Dataset, the Commission routinely collects
case identifiers, sentencing data, demographic variables,
statutory information, the complete range of court guideline
decisions, and departure and variance information. The
analysis for this report began by identifying offenders in the
Offender Datasets who received a commutation of sentence
under the Clemency Initiative. The Commission obtained
a complete list of commutations granted by President
Barack Obama from DOJ at https://www.justice.gov/pardon/
obama-commutations. Commutations granted prior to the
announcement of the Clemency Initiative (April 23, 2014) as
well as commutations granted to offenders other than federal
drug trafficking offenders were excluded. Of the resulting
1,696 offenders, the Commission identified 1,670 offenders
in the Offender Datasets based on name, sentencing date,
and sentencing district. For an additional 26 offenders who
were not in the Offender Datasets, information that the
Commission typically collects was coded from case documents
that were requested and received from the sentencing court.
	

50

An Analysis of the Implementation of the 2014 Clemency Initiative

	 The Commission augmented information from the
Offender Datasets with records from BOP on inmates in
custody as of January 25, 2014 and February 25, 2017. The
BOP records were matched with those of the Commission
based on sentencing date and at least one numeric identifier
such as FBI number, U.S. Marshals Service number, Social
Security number, or ICE number. All the 1,696 offenders
who were either in the Offender Datasets or had information
separately coded from case documents had a matching record
in the BOP data. The BOP data contributed information
relating to the amount of time the offender may have
been detained before sentencing, the date the sentence
computation began, the pre-clemency overall projected
release date (for offenders not sentenced to a term of life), the
post-clemency aggregated sentence, and the post-clemency
overall projected release date. The Commission relied on the
post-clemency overall projected release date for 468 offenders
who were missing information on the date the offender’s
prison sentence expired as specified in the grant of clemency.
	 The Commission additionally undertook a brief coding
project to collect details regarding any condition imposed
as part of the grant of clemency. From the “terms of grant”
information specified in the DOJ’s Commutations Granted by
President Barack Obama (2009-2017), staff recorded the date
clemency was granted as well as the specifics of any condition
of the grant of clemency, such as pre-release enrollment in
the BOP’s Residential Drug Abuse Program (RDAP).
	 This report examines the extent to which offenders
who received a sentence commutation under the Clemency
Initiative met the criteria for consideration and/or eligibility
announced by the Department of Justice. For an explanation
of how the Commission measured these criteria, see the
following section titled “How DOJ Factors Are Measured in
This Report.”

51

United States Sentencing Commission

	 The Commission also performed a separate analysis
of offenders incarcerated in the BOP as of April 24, 2014
to determine which offenders met the DOJ criteria for
the Clemency Initiative. For this part of the report, the
Commission relied on a combined dataset of BOP records
of inmates matched with the Commission’s Offender
Datasets for 1989 through 2016. Non-violent, low-level
drug trafficking offenders who had served at least ten
years of their prison sentence, and had no significant
criminal history, no serious misconduct in prison, no
history of violence prior to or during their current term of
imprisonment, and no involvement with large-scale criminal
organizations, gangs, or cartels were considered to have met
the Clemency Initiative criteria (please refer to “How DOJ
Factors Are Measured in This Report” below).

How DOJ Factors Are Measured in This Report
Drug Trafficking Offender

	 For the analysis of incarcerated offenders appearing
to meet all DOJ factors, a drug trafficking offender is one
whose primary offense (the offense of conviction with the
highest statutory maximum penalty) was categorized as drug
trafficking, manufacturing, or importing, or whose primary
sentencing guideline was USSG §§2D1.1, 2D1.2, 2D1.5,
2D1.6, 2D1.8, 2D1.10, or 2D1.14.
Violent Offender

	 An offender was determined to be violent if any of
the following guidelines were applied at sentencing: USSG
§§2A1.1, 2A1.2, 2A1.3, 2A1.4, 2A1.5, 2A2.1, 2A2.2, 2A2.3,
2A2.4, 2A3.1, 2A3.2, 2A3.3, 2A3.4, 2A3.5, 2A3.6, 2A4.1,
2A4.2, 2A5.1, 2A5.2, 2A5.3, 2A6.1, 2A6.2, 2B3.1, 2B3.2,
2D1.9, 2E1.1, 2E1.2, 2E1.3, 2E1.4, 2E1.5, 2G1.1, 2G1.2,

52

An Analysis of the Implementation of the 2014 Clemency Initiative

2G1.3, 2G2.1, 2G2.3, 2G2.4, 2G2.6, 2H4.1, 2M1.1, 2M2.1,
2M2.2, 2M2.3, 2M2.4, 2M3.1, 2M3.2, 2M3.3, 2M3.4, 2M3.5,
2M3.6, 2M3.7, 2M3.8, 2M3.9, 2M5.1, 2M5.2, 2M5.3, 2M6.1,
2M6.2, 2N1.1, 2P1.3, 2Q1.1, 2Q1.4, 2X6.1. Offenders whose
offense levels were increased pursuant to USSG §§2D1.1(b)(2)
were also considered to be violent offenders.
Low-Level Offender

	 An offender was determined not to be “an organizer,
leader, manager or supervisor of others within a criminal
organization” and, therefore, a low-level offender, if the
Aggravating Role Adjustment at USSG §3B1.1 was not
applied at sentencing.
Involvement with Large-Scale Organizations, Gangs, or Cartels

	 An offender’s involvement with large-scale
organizations, gangs, or cartels was measured based on
whether the court cited USSG §5K2.18 (Violent Street Gangs
(Policy Statement)) as a reason for sentencing the offender
above the guideline range, or if any of the Racketeering
guidelines (USSG §§2E1.1, 2E1.2, 2E1.3, or 2E1.4) were
applied at sentencing.
Length of Prison Sentence Served

	 For the analysis regarding offenders receiving
clemency, the amount of time that an offender had served of
his or her prison sentence was calculated as the difference
between the offender’s sentencing date and the date on which
the offender’s grant of clemency was announced, plus the
amount of time the offender may have been detained before
sentencing as determined by the court.
	 For the analysis regarding the number of clemency
offenders who will have served at least ten years of their

53

United States Sentencing Commission

sentence by the time they are released, the date of release
was specified in the sentence commutation for some
offenders. For other offenders, the sentence commutation
specified a new sentence length. For this latter group the
date of release was the adjusted release date as determined
by the Bureau of Prisons after accounting for the new
sentence length.
	 For the analysis of incarcerated offenders appearing
to meet all Initiative factors, the amount of time that
an offender had served of his or her prison sentence was
calculated in two ways: first, as the difference between
the offender’s sentencing date and April 24, 2014, plus the
amount of time the offender may have been detained before
sentencing as determined by the court; and second, as
the difference between the offender’s sentencing date and
January 19, 2017, plus the amount of time the offender may
have been detained before sentencing as determined by the
court.
Significant Criminal History

	 Following the definition used by Attorney General Eric
Holder in connection with the Smart on Crime Initiative,
offenders who received three or more total criminal history
points under USSG §§4A1.1 and 4A1.2 were considered to
have a significant criminal history.
Misconduct in Prison

	 An offender was determined to have serious
misconduct in prison if, prior to April 24, 2014, he or she
committed an act that the BOP classified as a “Greatest
Severity Offense” or a “High Severity Offense,” which,
according to BOP policy, results in the loss of good conduct
credit.

54

An Analysis of the Implementation of the 2014 Clemency Initiative

No Violence Prior to or During Current Term of Imprisonment

	 Commission data cannot determine with certainty
whether the offenders who received sentence commutations
had any history of violence before they were incarcerated.
Because of this, no offenders were deemed to be excluded by
that aspect of this factor.
	 An offender was determined to have committed an act
of violence while in prison if, prior to April 24, 2014, he or
she committed an act that the BOP classified as any of the
following offenses: Killing, Assaulting With Serious Injury,
Setting A Fire, Rioting, Encouraging Others To Riot, Taking
Hostage(s), Sexual Assault By Threat/Force, Fighting With
Another Person, Threatening Bodily Harm, Assaulting
Without Serious Injury, Sexual Assault Without Force.

55

United States Sentencing Commission

56

An Analysis of the Implementation of the 2014 Clemency Initiative

57

 

 

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