Donald Trump's flurry of midnight pardons before leaving office gave a welcome reprieve to a dozen nonviolent cannabis offenders, but many were passed over in what advocates close to the effort described as a hectic, last-minute blitz that underscored the need for sweeping pardon reform.
The federal pardon system has long had critics, who say it is inefficient, arbitrary and skewed in prosecutors' favor. But Trump's approach — bringing the vetting process closer to the White House through a circle of informal advisers — fared far worse than his predecessors, some observers say, pointing in part to disappointing results for nonviolent drug offenders.
"Some wonderful candidates were passed over," Amy Povah, founder of clemency advocacy group CAN-DO, told Law360. "I don't know what happened ... I was hoping all of the pot prisoners we brought would get out. There were a lot of women, a lot of elderly people."
Among those chosen over people serving long marijuana sentences: former Trump strategist Steve Bannon, accused of defrauding donors in a $25 million fundraising effort; former Trump fundraiser Elliott Broidy, who admitted to running a covert lobbying campaign for a person tied to the billion-dollar 1MDB fraud; and two rappers, Lil Wayne and Kodak Black, who pled guilty to weapons charges.
Thousands of people are serving time in federal prison for a drug now at the heart of a multibillion-dollar industry spanning three-dozen states that have legalized it for medical or recreational use. The same goes for former inmates who will have blemished records for the rest of their lives absent a pardon.
Many of them are people of color, who have disproportionately borne the brunt of prohibition enforcement. The disparity is especially glaring given the lack of diversity in the legal pot industry, prompting marijuana regulators across the country to set up programs they hope will boost minority-owned businesses. Lawmakers have also pushed to wipe state-level cannabis convictions en masse. Illinois expunged half a million cases last year, and Colorado mass-pardoned more than 2,700 people in October.
Progress has been slower at the federal level. Former President Barack Obama's clemency initiative, which focused on nonviolent drug offenders, set a record for sentence commutations with 1,715, along with 212 pardons over the course of his presidency. But that program still didn't go far enough, according to some legal experts and former officials.
Trump pardoned 12 cannabis offenders in the waning hours of his presidency — along with two-dozen other drug offenders — and advocates said they were grateful for those, as well as the other nonviolent drug offenders who received clemency over his term. But those were sporadic, often came with the backing of celebrities, and were overshadowed by scandalous pardons for Trump associates and white collar criminals.
"This was not a systematic effort to identify troubling cannabis cases," Mark Osler, a legal scholar and clemency expert at the University of St. Thomas School of Law, told Law360. "That's being left to the Biden Administration — to look for people who shouldn't be in there. And there are a lot in there."
Advocates say those people include Luke Scarmazzo, who is serving 22 years for running an illegal medical marijuana dispensary in California. His offense was nonviolent, but prosecutors noted in court papers that a gun was found in his store's safe, indicating it was "not improbable" that weapons were involved in the offense.
Scarmazzo's petition was seen by some as a no-brainer, given that medical marijuana had been legal in California for a decade when he was arrested in 2006. His exclusion from the list was a blow to advocates like Weldon Angelos, who spent 13 years in prison until his 55-year sentence for selling marijuana was reduced in 2016. Trump gave him a full pardon in December.
"We heard there was pushback towards the end of the day [Monday] from the DOJ and White House Counsel's Office for anyone who had any kind of violent associations," he told Law360 the morning after Trump's final pardons.
Clemency can be a powerful tool for justice, capable of undoing the grim legacy of mandatory minimum sentences in ways that legislative changes can't. The process formally runs through the U.S. Pardon Attorney's Office, an arm of the U.S. Department of Justice, which vets cases and passes recommendations to the president. Applications must pass through layers of bureaucracy at the DOJ, giving prosecutors opportunities to tip the scales, reformers say.
Trump moved the process closer to the Oval Office with an informal group of advisers set up in early 2020, and some advocates were cautiously optimistic this would speed applications through red tape and bring fresh voices to the process. The group included former acting Attorney General Matt Whitaker and the president's son-in-law, Jared Kushner, according to Povah, who said she worked with them alongside other clemency advocates.
"People were able to impress upon President Trump that that process was broken, and he was willing to look at cases that were vetted a little bit differently," Povah said, adding that she had hoped distancing reviews from the DOJ would yield more clemencies. That's the goal of many reformers, who say clemency recommendations should come from an independent commission outside the DOJ.
Trump appeared receptive to cases involving so-called trial penalties, when defendants who declined plea deals were hit with harsh sentences after losing before juries, advocates said. They also felt going directly through White House advisers like Kushner and Ivanka Trump was more effective than submitting applications to the Pardon Attorney's Office, which they described as black box where tens of thousands of applications remain stuck.
Angelos was in close contact with advisers to Kushner, whom he gained access to after being invited to a prison reform summit at the White House in 2018 — though communication became difficult as White House staffers started leaving for new jobs at the end of the year, he said. Ivanka Trump was also sympathetic to marijuana pardons, according to advocates, which perhaps explains why a dozen made their way to the final list.
"What I found was that there was a clear desire from [the Trump] administration, including from some of the president's top advisers, to focus specifically on cases where individuals received egregious sentences for cannabis offenses," Sarah Gersten, executive director and general counsel of the Last Prisoner Project, told Law360.
Craig Cesal, who received a life sentence in 2003 for marijuana distribution but was moved to home confinement amid the coronavirus pandemic, got a call from Ivanka Trump on Tuesday night informing him that his sentence had been commuted.
"That was the official moment," he told Law360. "I'll admit, it came through my head: how do I know this is really her?"
But many candidates with alleged ties to guns, gangs and violence faced long odds, according to Povah. She and Osler, the University of St. Thomas law professor, noted this was an issue that spanned multiple administrations, reflecting the persistent influence of prosecutors in clemency recommendations.
"We've seen two different processes that don't work: the old bureaucratic one and the informal coterie of advisers one," Osler said, adding that Trump's approach was a "slapdash process" that was "inherently arbitrary, biased towards the wealthy and centered on connections."
None of the advocates who spoke to Law360, however, think President Joe Biden should double down on the existing pardon system at the DOJ, where roughly 13,750 applications remain pending. Even Obama's clemency initiative had critics, including his final pardon attorney, Deborah Leff, who resigned in protest over what she described as a woeful lack of resources.
"It's time to blow that up," Osler said, referring to the formal pardon process.
The Democratic Party platform in 2020 called for an independent clemency commission that would include voices from law enforcement, the judiciary, the defense bar, academia and social justice advocacy. Biden has yet to lay out specific plans for clemency, but his party has committed to expanding on the legacy of his former partner in the White House.
The First Step Act, a major criminal justice reform bill passed in 2018, is likely to shrink the pipeline of nonviolent drug offenders heading to prison and staying there for long periods. It shortened mandatory minimums for those offenses, removed life sentences from the "three strikes" rule and expanded the so-called drug safety-valve, which gives judges more discretion when sentencing nonviolent drug offenders.
That was a welcome change for reform advocates, but it does little to help nonviolent inmates still serving hard time with no end in sight. More than two-thirds of federal prisoners serving life sentences or effective life sentences were convicted of nonviolent crimes, according to the nonprofit Sentencing Project, and the Brennan Center for Justice says roughly 40% of prisoners are locked up to no public safety benefit.
"It's important to recognize that there's a clemency crisis, because there are about 14,000 applications pending, and that's just going to grow," Osler said. "We have to come up with a more efficient mechanism to evaluate them and deal with this."
--Editing by Emily Kokoll.