About The Justice Project
What is clemency?
The U.S. Constitution gives the President of the United States the power to grant clemency to people who have committed federal offenses.
One form of clemency is a sentencing commutation. A commutation does not relieve the offender of any legal consequences of the underlying offense, but only adjusts the punishment that has been imposed. For instance, a commutation allows the President to lower a defendant’s prison term, usually because of its undue severity.
Unfortunately, the probability of a prisoner actually receiving a grant of clemency is more false hope and less rational optimism.
The problem lies not with the number of worthy clemency candidates, but with the clemency process itself. You may have heard about the case of Alice Marie Johnson, a first-time nonviolent drug offender serving a federal prison sentence of life with no parole, who received clemency due to the intervention of Kim Kardashian.
But Alice’s case should serve as more of a reality check than a source of hope. Reversing the glaring injustice of Alice’s brutal and unforgiving prison sentence, death-by-imprisonment, required one of the most influential and powerful celebrities in the world to make a personal trip to the White House and offer an impassioned plea for Alice’s release via clemency.
Had Kim Kardashian not intervened, Alice would have died in federal prison.
What’s more, lawyers who specialize in facilitating sentencing commutations overwhelmingly share the sentiment that The Office of the Pardon Attorney is like a black box, opaque and mysterious. The only available updates on clemency petitions are “pending” or “denied.”
Simply put, as a wealth of empirical data conclusively demonstrates, it is nearly impossible for a federal prison to file a clemency petition using traditional channels (i.e. the pardons office) and to actually receive a sentencing commutation given the current paradigm of the clemency process.
But there is a backdoor approach that has proven effective, an approach exemplified by the case of Alice Marie Johnson.
What is this approach?
Amplifying the voices of those seeking clemency.
This approaches uses the myriad criminal justice advocacy groups that have championed the release of many federal prisoners by way of clemency. These advocates use their platforms, resources, and influence to call attention to the particular injustices of an individual case that presents a compelling case for clemency. They tell the prisoner’s story, hoping that it will resonate with the President and thereby bypass the Office of the Pardon Attorney, where the petition would be dead in the water.
In order to help worthy prisoners articulate and showcase the injustices in their cases to attract the attention of an effective criminal justice advocate, The Justice Project (Texas) vets and well-deserving federal prisoners call attention to injustices that produced an unfair conviction or, more commonly, an unjust and disproportionately severe prison term.
Most of the excessive and needlessly punitive federal prison sentences that do not fit the crime are the product of a flawed and punitive federal justice system, in which legal loopholes are easily exploited and discretion is abused by savvy prosecutors. Such abusive and manipulative practices flourish with impunity, resulting in chronic injustice, especially in the well-oiled and remarkably efficient federal punishment machine.
As noted by many prominent law professionals, the clemency process is “fundamentally broken.” If a prisoner were to simply file the boilerplate clemency form and let it work its way through the Pardon’s Office, they would almost certainly never hear anything about it again. Buying a winning jackpot lottery ticket would be a more viable option, and that’s only where the problems begin.
The broken clemency process.
NYU law school professor, Rachel Barkow, and Mark Osler, a former federal prosecutor and law professor at the University of St. Thomas, say that the current system—where clemency petitions are reviewed by the Department of Justice—creates a conflict of interest insofar as federal prosecutors exert significant influence over the clemency petitions of the people who they have put behind bars. In other words, the fox is guarding the hen house.
It is wishful thinking to believe that the very U.S. Justice Department that used manipulative and abusive practices to ratchet up a person’s prison term far beyond any useful purpose is going to come back and simply toss that same person the keys to his (or her) freedom.
This is especially true of a clemency petition in which a prisoner details overt prosecutorial manipulation and other unprincipled acts that produced the unjust result in the first place, thereby highlighting malfeasance on the part of the Justice Department.
Injustice anywhere is a threat to justice everywhere.
Martin Luther King, Jr.
It is noteworthy and only fair to mention former President Obama’s well-intentioned effort to reverse many such injustices, but even his clemency initiative was chaotic and cloaked in opacity. In any event, Mr. Obama was an outlier.
For perspective, a tally of the sentencing commutations granted during the entire first terms of George HW Bush’s, Bill Clinton’s, and George W. Bush’s presidencies would only add up to a total of eight commutations. Mr. Obama’s heart was certainly in the right place; of course, he had good intentions when he implemented the Clemency Initiative, which enabled nearly 2000 federal prisoners to win freedom by way of sentencing commutations. Nevertheless, the process left a lot of well-deserving people behind and was resultantly described as arbitrary by many people in the legal community who were directly involved in the initiative.
For example, by January 2017, there were 2,687 nonviolent drug trafficking offenders incarcerated in federal prison who met all of the announced Clemency Initiative factors.
Of them, 92 (3.4%) received clemency from President Obama. Legal scholar and NYU Law Professor Rachael Barkow—who had boots on the ground during the process—sharply criticized the efficacy of the initiative and the integrity of the process underlying it.
With all of that in mind, Obama’s short-lived Clemency Project is now a distant memory. The sobering reality is that the only hope that many well-deserving prisoners have of receiving Clemency from the President of the U.S. is to capture the attention of a powerful criminal justice advocate, a law school clemency clinic, or, as we have all learned in the case of Alice Marie Johnson (who captured the attention and heart of Kim Kardashian), anyone with influence and clout, such as a celebrity. But that is much easier said than done. The isolation of federal prison makes the monumental task a mere pipe dream for many, particularly in cases that where layers of complexity make the story difficult to unravel.
Not every prisoner deserves clemency, of course. The truth is that a lot of prisoners are serving prison terms that are perfectly reasonable and are proportional to their crimes. Still, there are many other prisoners who are serving outrageous prison sentences that scream unfairness, most of which are the product of a deeply flawed federal system of so-called justice.
Our mission
The Justice Project’s (Texas) mission is not to facilitate clemency on behalf of a prisoner, but rather to help them capture the attention of a criminal justice advocate who can do just that.
In particular, after vetting the prisoner and the underlying case facts, we work hand-in-hand with them to help them craft their stories. After articulating a nuanced argument about the abuses that produced their unjust conviction or prison term (or both), we use digital tools to highlight and disseminate their story.
By distilling the case facts down to a concise story that gives them a compelling case for clemency, we are hopeful that their stories will resonate with a legal advocate or law clinic or someone with sway who can then champion their cause and facilitate a presidential sentencing commutation by way of a clemency. In other words, The Justice Project (Texas) is not the vehicle to attain Clemency; we are instead a vehicle to capture the attention of a criminal justice advocate who can serve as their voice. In the simplest terms, our goal is to de-construct the case so as to pinpoint the abusive practices or flaws inherent to the design of the federal system of justice that produced the unjust result.
We let the criminal justice advocates take it from there, but once the case is passed off into their competent hands, the likelihood of a clemency grant is markedly increased.