An Analysis of the Implementation of the 

2014 Clemency Initiative

UNITED STATES SENTENCING COMMISSION
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

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

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.
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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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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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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 
An Analysis of the Implementation of the 2014 Clemency Initiative

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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
United States Sentencing Commission

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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 

Figure 1. Grants of Clemency by President Barack Obama

2009-2017

Pardons

11.0%

(n=212)

Clemency Initiative 

Commutations of 

Sentence

88.0%

(n=1,696)

Commutations of 

Sentence, Not Part of 

Clemency Initiative

1.0%

(n=20)
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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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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 
An Analysis of the Implementation of the 2014 Clemency Initiative

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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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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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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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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

1 8 1 3 8 22

46

95

3

61 58

42

214

111102 98

72 79

153

209

330

0

50

100

150

200

250

300

350
An Analysis of the Implementation of the 2014 Clemency Initiative

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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

White

19.1%

(n=321)

Black

70.9%

(n=1,195)

Hispanic

8.7%

(n=147)

Other

1.3%

(n=22)
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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)

Crack Cocaine

61.0%

(n=1,007)

Heroin

1.4%

(n=23)

Marijuana

4.2%

(n=69)

Methamphetamine

17.4%

(n=288)

Other Drug 

Types

0.6%

(n=10)
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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 

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. 

Figure 5. Weapon Involvement of Offenders Receiving Clemency

No Weapon

68.3%

(n=1,150) Weapon SOC

55.7%

(n=298)

18 U.S.C. § 924(c)

43.6%

(n=233)

Both

0.7%

(n=4)

Weapon

31.8%

(n=535)
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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.

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 

Figure 6. Clemency Offenders Convicted of an Offense Carrying a 

Mandatory Minimum Penalty

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)

240 Months

29.0%

(n=448)

Life

19.8%

(n=306)
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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). 
United States Sentencing Commission

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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*

None

0.1%

(n=2)

One

3.4%

(n=57)

Two

18.5%

(n=314)

Three

37.8%

(n=641)

Four

35.1%

(n=596)

Five

5.1%

(n=86)

*See Footnote 69.
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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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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

Pre-Booker

49.2%

(n=835)

Post-Booker

50.8%

(n=861)
An Analysis of the Implementation of the 2014 Clemency Initiative

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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 
United States Sentencing Commission

22

FSA could not be a change in law that would lead a court to 

impose a lower sentence.

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 

Figure 9. Offenders Receiving Clemency Sentenced 

Before the Fair Sentencing Act of 2010 (FSA)

Figure 10. Drug Type for Offenders Receiving 

Clemency

Crack Cocaine 

Offenders

61.0%

(n=1,007)

Other Drug 

Offenders

39.0%

(n=644)

Pre-FSA

97.9%

(n=1,661)

Post-FSA

2.1%

(n=35)
An Analysis of the Implementation of the 2014 Clemency Initiative

23

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. 
United States Sentencing Commission

24

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)
An Analysis of the Implementation of the 2014 Clemency Initiative

25

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. 
United States Sentencing Commission

26

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

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. 

Figure 12. Offenders Receiving Clemency Meeting Low-Level Criterion

Not Low-Level

18.0%

(n=305)

Low-Level

82.0%

(n=1,391)
An Analysis of the Implementation of the 2014 Clemency Initiative

27

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. 

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 

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)
United States Sentencing Commission

28

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. 

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

Figure 14. Time Served by Offenders Receiving Clemency

(as of date of announcement)

384

763

298

217

34

0

100

200

300

400

500

600

700

800

900

Less Than 10 10 to < 15 15 to < 20 20 to < 25 25 or More

Number

Years
An Analysis of the Implementation of the 2014 Clemency Initiative

29

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. 

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 

Figure 15. Criminal History Scores of Offenders Receiving Clemency

7.3% 3.6% 3.2% 6.7% 5.7% 5.1%

10.3% 5.6% 7.3% 7.4% 5.7%

32.3%

0.0%

10.0%

20.0%

30.0%

40.0%

50.0%

60.0%

70.0%

80.0%

90.0%

100.0%

0

(n=121)

1

(n=60)

2

(n=53)

3

(n=111)

4

(n=95)

5

(n=85)

6

(n=171)

7

(n=93)

8

(n=122)

9

(n=123)

10

(n=95)

More

Than 10

(n=539)

Criminal History Points
United States Sentencing Commission

30

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

Serious 

Misconduct 

in Prison

40.3%

(n=684)

No Serious 

Misconduct 

in Prison

59.7%

(n=1,012)

Figure 16. Criminal History Category of Offenders Receiving Clemency

CHC I

10.7%

(n=179)

CHC II

9.3%

(n=155)

CHC III

16.2%

(n=270)

CHC IV

9.6%

(n=160) CHC V

6.2%

(n=103)

CHC VI

48.1%

(n=804)
An Analysis of the Implementation of the 2014 Clemency Initiative

31

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)
United States Sentencing Commission

32

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. 
An Analysis of the Implementation of the 2014 Clemency Initiative

33

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 
United States Sentencing Commission

34

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.

January 19, 2017

(N=2,687)

Figure 19. Incarcerated Offenders Appearing to Meet All DOJ Factors 

April 24, 2014

(N=1,025)

Met Criteria, 

Did Not Receive Clemency

94.6%

(n=971)

Met Criteria, 

Received Clemency

5.4%

(n=54)

Met Criteria, 

Did Not Receive Clemency

96.6%

(n=2,595)

Met Criteria, 

Received Clemency

3.4%

(n=92)
An Analysis of the Implementation of the 2014 Clemency Initiative

35

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 
United States Sentencing Commission

36

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. 

 
An Analysis of the Implementation of the 2014 Clemency Initiative

37
United States Sentencing Commission

38

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.37-

42 (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.”).
An Analysis of the Implementation of the 2014 Clemency Initiative

39

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.”). 
United States Sentencing Commission

40

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].
An Analysis of the Implementation of the 2014 Clemency Initiative

41

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.
United States Sentencing Commission

42

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 
An Analysis of the Implementation of the 2014 Clemency Initiative

43

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), 
United States Sentencing Commission

44

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-ad42-

f3375f271c9c_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) 
An Analysis of the Implementation of the 2014 Clemency Initiative

45

[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 
United States Sentencing Commission

46

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 See USSG App. C, amend. 782 (effective Nov. 1, 2014).
An Analysis of the Implementation of the 2014 Clemency Initiative

47

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.
United States Sentencing Commission

48

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).

 

91 Id.

 

92 AG Smart on Crime Memo, supra note 85.

93 See generally USSG, Ch. 4.

94 CHC II contains offenders with two or three criminal history 

points.

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

49

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.
United States Sentencing Commission

50

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.
An Analysis of the Implementation of the 2014 Clemency Initiative

51

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.” 
United States Sentencing Commission

52

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, 
An Analysis of the Implementation of the 2014 Clemency Initiative

53

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 
United States Sentencing Commission

54

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. 
An Analysis of the Implementation of the 2014 Clemency Initiative

55

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. 
United States Sentencing Commission

56
An Analysis of the Implementation of the 2014 Clemency Initiative

57