In Obama's Final Hours, Many Prisoners Left in Commutation Limbo

Outgoing president granted 330 commutations Thursday, including to two men profiled by 'Rolling Stone' in December

As of Friday morning – during President Obama's final hours in office – 8,880 clemency petitions were still awaiting a response. Credit: Brooks Kraft LLC/Corbis/Getty

Early Thursday afternoon, Bernard Smith was called to his counselor's office in West Virginia, where he's serving his 13th year in federal prison. His counselor wouldn't tell him why she called him there, but he had a feeling it might be good news. Minutes later he got a phone call from his lawyer letting him know that President Obama had commuted his 22-year sentence: He is now eligible for release in January of 2019.

"I'm a new man this morning," Smith tells Rolling Stone by phone Friday. "I'm so happy, so happy. [My wife] and I just can't wait to pick up the pieces."

Smith was among the 330 commutations Obama granted on Thursday – bringing his total to 1,715 commutations over his eight years in office. Two of those granted were profiled by Rolling Stone in December: Smith and Trenton Copeland.

On Tuesday, the administration announced a smaller round of commutations, which included the high-profile cases of whistleblower Chelsea Manning and Puerto Rican FALN activist Oscar López Rivera. Though these men and women will ultimately enjoy an early release from prison, more than 20,000 others whose petitions were either denied or not processed were not so lucky.

"It's true that for those 1,715 people, this was a remarkable act of justice and mercy," clemency expert and law professor Mark Osler tells Rolling Stone. "But in looking at the whole of it, it's hard not to see the lost opportunity and the people who were left behind."

Of those "left behind," 18,749 petitions for clemency were denied. As of Friday morning, an additional 8,880 petitions were still awaiting a response, according to the Department of Justice's clemency statistics.

"It appears the [administration's] promise to get to everything filed by the end of August just wasn't fulfilled," says Osler. Those 8,800 people, he says, are "just in limbo."

Prisoners whose petitions are still pending will likely wait even longer as the administration changes hands. On the campaign trail, Donald Trump vigorously touted a return to law and order, openly criticizing Obama's use of his clemency power at a rally in August 2016.

"Some of these people are bad dudes," Trump told a crowd in Kissimmee, Florida. "These people are out walking the streets. Sleep tight, folks."

The vast majority of those "bad dudes" are nonviolent drug offenders, which comprise more than half of the federal prison population and became the focal point of Obama's clemency initiative. This is true of Smith and Copeland, both of whom were convicted of nonviolent drug crimes and were subject to mandatory minimum sentencing laws.

As Smith took in his good news on Thursday, he watched as denials were slipped under the cell doors of many of the men around him.

"We've got a lot of disappointed people in here," Smith says. "It's bittersweet."