(CNSNews.com) – In the waning days of the Bush administration, the Department of Justice (DOJ) is mulling whether to recommend a commutation for the two former Border Patrol agents jailed for more than a decade each for shooting a Mexican drug smuggler in the buttocks.
The case is now before the DOJ’s Pardon Attorney Donald Rodgers. The Office of Pardon Attorney works in consultation with the attorney general’s office to assist the president, who has sole power of clemency in federal cases under the Constitution.
Ultimately, it is the president’s call regardless of what the Office of Pardon Attorney recommends.
Last week, a federal judge in Texas left intact the 11-year sentence for Ignacio Ramos and 12-year sentence for Jose Compean in the shooting case of Mexican drug smuggler Osvaldo Aldrete-Davila, who was later convicted on a separate drug smuggling crime.
The two former Border Patrol agents were convicted in early March 2006 for the discharge of a firearm in the commission of a violent crime, violation of civil rights, assault charges, and on charges of tampering with evidence.
The 5th Circuit Court of Appeals last summer reversed the convictions for evidence tampering, but that did not affect the sentence, because the offense of discharging a weapon during a crime carries a mandatory minimum sentence of 10 years. The two agents began serving their sentences in January 2007.
Both the House and Senate have held hearings investigating the prosecution of the agents, and numerous members of Congress have called on President George W. Bush to either pardon the two men or commute their sentences. Given the time served, attorneys are requesting commutation.
“I’m asking for a commutation, because he has already served the sentence on all counts of conviction except for the gun count,” Ramos’s attorney David Botsford told CNSNews.com.
Botsford refuted media reports that the commutation requests were denied.
“They suspended the processing of the commutation petition because of the re-sentencing,” he said. “I don’t think that was necessarily appropriate, but I notified them (the Office of Pardon Attorney) as soon as the re-sentencing was over, asking them to reinstate the commutation process. It’s my understanding they’re going to do that.”
Tara Setmayer, spokesman for Rep. Dana Rohrabacher (R-Calif.), one of the most outspoken advocates for freeing the agents, also confirmed Tuesday that the Office of Pardon Attorney was reviewing the case.
Botsford said he does not know how long the process will take, or even if it will be decided while Bush is still president.
“It should be pretty simple,” Botsford said. “I don’t have the faintest idea how long it’s going to take for them to process.”
A Justice Department spokesperson did not respond to an inquiry from CNSNews.com as this story went to press Tuesday evening.
Meanwhile, the White House declined to comment on the matter.
“We never comment on pardons or people who are eligible to apply for a pardon,” White House Press Secretary Dana Perino told CNSNews.com during the White House press briefing. “That goes to the Office of Pardon Attorney at the Department of Justice, and we don’t comment on those deliberations.”