James M. Cole, deputy U.S. Attorney General, outlines the Obama administration's clemency initiative at the New York State Bar Association annual meeting yesterday.
James M. Cole, deputy U.S. Attorney General, outlines the Obama administration’s clemency initiative at the New York State Bar Association annual meeting yesterday. (NYLJ/Rick Kopstein)

A top official of the Justice Department Thursday enlisted the help of the New York bar to draft clemency petitions for prison inmates serving inordinately long sentences for non-violent drug crimes.

“We envision that attorneys will assist potential candidates in assembling effective and appropriate commutation petitions— ones which provide a focused presentation of the information the department and the president need to consider—in order to meaningfully consider clemency for similarly situated petitioners,” Deputy Attorney General James Cole told members of the Criminal Justice Section of the New York State Bar Association at the group’s annual meeting.

See text of remarks.

Cole said the prerequisites for the enhanced clemency consideration are that offenders have clean prison records, do not pose a threat to public safety if released and are facing life or near-life sentences that would be excessive under current law.

The New York state bar was the first the Justice Department was approaching with the new initiative, said Cole.

The initiative grows out of President Barack Obama’s decision to grant executive clemency to eight drug offenders last month and the administration’s belief that there are others serving long sentences for non-violent drug offenses who could be living productive lives outside federal prisons, Cole said (See Clemency Statistics, 1900-Current).

In an interview before his speech at the New York Hilton Midtown in Manhattan, Cole said it is unclear how many offenders should merit serious consideration for clemency.

“That’s why we are asking the [New York] bar association and other groups for help,” he said.

During his speech, Cole said the U.S. Bureau of Prisons will also make more information about executive clemency available to the 216,000 inmates in the federal prison system and inform them when private attorneys or bar groups have come forward to offer their assistance in making clemency applications.

Cole said it is bad corrections policy to keep some inmates incarcerated for extremely long drug sentences if their crimes were not violent and they were not drug-selling kingpins.

“For our criminal justice system to be effective, it needs to not only be fair; but it also must be perceived as being fair,” said Cole, who was a partner at Bryan Cave before becoming deputy attorney general in 2011. “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.”

The chair of the state bar’s Criminal Justice Section, Brooklyn Supreme Court Justice Mark Dwyer, said he added Cole’s call to action to the agenda of the section’s executive committee later Thursday. Dwyer said a committee would be appointed to coordinate the efforts of volunteers.

Chief Judge Jonathan Lippman, who attended the luncheon and awards ceremony, said enhancing the use of executive clemency for non-violent inmates is an “interesting and valid issue” for the Justice Department to be discussing.

Lippman equated Cole’s initiative to the call Lippman made last year for judges in New York to stop imposing bail for low-level criminal charges when it would only serve to incarcerate non-violent offenders (NYLJ, Feb. 6, 2013).

“There is a general trend in this country that says that incarceration is not necessarily productive in terms of society,” Lippman said in an interview. “To incarcerate people who are not a threat doesn’t make any sense.”

Steven Banks, attorney-in-charge of the New York City Legal Aid Society, said the “over-policing and over-punishment” of drug offenders is a “crisis” that has developed over decades.

“It was certainly important to hear one of the highest law enforcement officials in the country say that this is an endeavor that lawyers in our state should play a role in,” said Banks.

James Subjack, a criminal defense attorney in Fredonia and a former Chautauqua County district attorney, said Cole’s call will be embraced by some private attorneys. Even the hardest-line prosecutors, he said, recognize that some drug offenders have received excessive sentences for behavior that did not entail violence or being drug traffickers.

“In most situations, there ought to be the ability to say, ‘Look, this person deserves some type of consideration,’” Subjack said in an interview. “Not to overturn the conviction, because that has been resolved, but to look back at the sentence and to say, ‘Look, that was unduly harsh when it happened and it is certainly unduly harsh now.’”

Subjack said he could see himself helping with clemency petitions for some offenders, but clearly not for drug “kingpins.”

The state bar gathering continues today with a meeting of the group’s policy-setting House of Delegates and a luncheon by the Judicial Section featuring an address by James Yates, a former Supreme Court justice from Manhattan who is chief counsel to Assembly Speaker Sheldon Silver.