Next Step In New Clemency Initiative: ID Who's Eligible

This past week, the Justice Department announced changes to clemency criteria for federal prisoners. The changes will allow more prisoners who are locked up on nonviolent drug charges to petition for early release. NPR's Eric Westervelt speaks with Vanita Gupta of the American Civil Liberties Union.

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ERIC WESTERVELT, HOST:

From the NPR West studios in Culver City, California it's ALL THINGS CONSIDERED. I'm Eric Westervelt. This coming week, the Federal Bureau of Prisons will send a notice to every inmate in its custody, all 216,000 of them. They're trying to reach the people serving more than 10 years in prison for nonviolent drug crimes. Their message: If you've shown good behavior, had no prior convictions and fulfill a few other criteria, you could receive clemency and go free.

And the government will be working with a group of outside lawyers called the Clemency Project 2014 to identify which prisoners might qualify for clemency. I spoke with Vanita Gupta who's helping lead the project. She's deputy legal director for the ACLU and she told us that an effort like this is unprecedented.

VANITA GUPTA: We are being asked to both help identify and screen for eligible prisoners, but also to help pair eligible prisoners with lawyers. And because of the scale of this effort and probably the thousands of prisoners who will ultimately be eligible, this really required something above and beyond business as usual and not so welcome initiative.

WESTERVELT: How many nonviolent drug offenders do you estimate, you know, would qualify for release under these new clemency guidelines?

GUPTA: It's really hard to put a number on it. Right now the only snapshot that we have is that there are about 23,000 federal prisoners who served at least 10 or more years, which is one of the criteria for nonviolence offense. But there are other criteria that require looking at the sentencing report, at the prison disciplinary record and that require a kind of whole other layer of investigation and screening that makes speculation around the specific number kind of impossible to do at this juncture. But it's going to be, you know, in the thousands.

WESTERVELT: So this is more than symbolic. Several thousand inmates could go free.

GUPTA: This is absolutely more than symbolic. This initiative and announcement was unthinkable 10 years ago. It really kind of marks a sea change in the conversation that this country and that policymakers are having. But it's also limited. And I think it's important. The impact is limited. The administration is doing what is in its power to correct an injustice. But ultimately we need congressional action.

WESTERVELT: What's behind that sea change do you think? I mean, this seems like a rare case where liberals and libertarians have sort of joined forces to try to roll back the drug war and crime punishment. The drug war, these have been big controversial issues for a long time.

GUPTA: Yeah, I mean, I would've had to seriously pinch myself 10 years ago to think that criminal justice was going to be one of the vanguard bipartisan issues in 2014, but that's what it's become. And I think it's really been motivated by a couple of factors. One, is that the fiscal crisis in 2008 really pinched state budgets in a way, and pinch is an understatement, but forced states to reckon with the addiction to incarceration that they had been kind of feeding for 40 years.

I also think that the historically low crime rates around the country really kind of opened up a political space, a less emotional kind of fear-driven space to take a more rational look at what was going on and has been going on in our criminal justice system. And so now we are seeing states that are reforming a lot of their laws and continuing to experience really dramatic declines in crime. And that's broken the public perception that mass incarceration has required for public safety.

WESTERVELT: When might we see some of these nonviolent offenders walk free under these new guidelines?

GUPTA: We don't know. We are - our goal at the clemency project is to get petitions before the Department of Justice on a rolling basis. And the Department of Justice has said that they will be submitting them to the White House after they do their screen to - on a rolling basis as well. And so, it's anyone's guess right now but our hope is that the president will be signing these as the merits persuade him and will not wait for some magic (technical difficulties) be using his last days and months in his administration to do so.

WESTERVELT: Vanita Gupta is deputy legal director for the ACLU. Vanita, thanks for coming in.

GUPTA: Thank you.

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