Last week, Deputy Attorney General James Cole announced that President Obama is likely to ramp up the number of commutations he issues for drug offenses. While commendable, presidential commutations are unlikely to help immigrants avoid removal.
In a speech to the New York State Bar Association, Deputy AG Cole noted the futility of relying on incarceration to punish low-level drug offenders. “Over half of the federal prison population is there for drug offenses,” he said. “Some are truly dangerous people, who threaten the safety of our communities and need to be taken off the streets for a long time. But others are lower level drug offenders, many with their own drug abuse issues, who fall into the all too common vicious cycle of drug abuse, crime, incarceration, release – and then the cycle repeats.” The United States simply can’t afford to keep doing this, he added. DOJ alone spends $6.5 billion annually on prisons.
One way of reducing the prison population is by wielding the president’s pardon authority more powerfully. In particular, Cole suggested that President Obama and the Justice Department are interested in commuting more sentences for low-level drug offenders. As Cole put it, “Commutation of sentence is an extraordinary remedy that is rarely used. But it may be available in certain circumstances, including when an individual has a clean record in prison, does not present a threat to public safety, and has been sentenced under out-of-date laws that have since been changed, and are no longer seen as appropriate.” This is one way, he added, that the president can use his executive power to inject some fairness into the criminal justice system.
While this is a noteworthy statement and I hope Cole’s words turn into meaningful action, it is unlikely to be of much help to immigrants with low-level drug offenses who wish to remain in the United States. Commutation does not eliminate a conviction. Rather, it merely replaces the original sentence with a new sentence. As the BIA explained years ago, “commutation by the President of the United States or the Governors of States ha[s] exactly the same legal effect as though the commuted sentence had been imposed by the court in the first instance and that, after commutation, the commuted sentence is the only one in existence.” Matter of J, 6 I&N Dec. 562, 569 (BIA 1955).
Without question, a commuted sentence benefits individuals who are still serving their criminal punishment. It means, after all, the ability to leave prison. In the immigration context, a commuted sentence would likewise benefit anyone who is subject to removal as a result of a provision of the INA that is triggered by a specified sentence. If, for example, the immigrant is removable for having been convicted of “a theft offense…for which the term of imprisonment [is] at least one year,” then substituting a sentence of less than one year for an original sentence that was greater than a year would be of great benefit.
Neither of the two principal drug-related removal provisions, however, includes a minimum sentence requirement. The drug-related aggravated felony category simply turns on whether the immigrant was convicted of “illicit trafficking in a controlled substance…including a drug trafficking crime.” INA § 101(a)(43)(B). Similarly, the controlled substances offense provision asks whether the immigrant was convicted “of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance…other than a single offense involving possession for one’s own use of 30 grams or less of marijuana.” INA § 237(a)(2)(B)(i). A sentence reduced through the president’s commutation power wouldn’t affect whether the offense meets these requirements.
Though an immigrant is unlikely to be able to avoid a finding of removability even with a commutation for a drug offense, in some instances commuting the sentence may help maintain eligibility for withholding of removal under INA § 241(b)(3). A person who has been convicted of an aggravated felony or aggravated felonies “for which the alien has been sentenced to an aggregate term of imprisonment of at least 5 years shall be considered to have committed a particularly serious crime” and a PSC conviction precludes eligibility for withholding. INA § 241(b)(3)(B). This would help someone who, for example, was convicted of a drug offense that constitutes an illicit trafficking type of aggravated felony (regardless of the sentence imposed), initially sentenced to more than five years imprisonment, and, thanks to a commutation, had that sentence reduced to less than five years. [Thanks to Ben Winograd for pointing this out.]
To its credit, the Justice Department says as much on its web site. “[C]ommutation of sentence, if granted, will not prevent your deportation or removal from the United States,” it informs prospective applicants. Indeed, it adds, it “may actually hasten the process.”
The messy intertwinement of criminal law and immigration law, therefore, means that any attempt by the president to use his commutation power to relieve low-level drug offenders of the severe consequences of decades of harsh drug sentencing laws is unlikely to help noncitizens who fall into this category. Without more, they will continue to face removal.
[Update (April 23, 2014): Today, the Justice Department announced its criteria for considering clemency of low-level drug offenders. These guidelines are not likely to alter the analysis I provided above. Moreover, one of the requirements that the department will look for in deciding whether a low-level offender should be recommended for presidential clemency is that the applicant “have served at least 10 years of their prison sentence.” This requirement makes me think that the administration is unlikely to recommend commuting a sentence to less than 10 years. This is mere speculation from a bare-bones explanation so only time will tell.]