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Biden Gets a Second Chance – Update for April 11, 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

BIDEN’S SECOND CHANCE TO GET SECOND CHANCE MONTH RIGHT

second170119President Biden has again designated April as Second Chance Month, the eighth annual proclamation since Charles Colsen’s Prison Fellowship convinced Congress to recognize April for that purpose in 2017.

Biden used the proclamation as a chance to burnish his Administration’s achievements in promoting second chances for prisoners, including what he called “over 100 concrete actions that my Administration is taking to boost public safety by improving rehabilitation in jails and prisons, helping people rebuild their lives, and reducing unnecessary interactions with the criminal justice system so police officers can focus on fighting crime.”

So far, those “actions” have not included much use of the presidential clemency power. In. The Hill, Rev. Terrence McKinley said that despite Biden’s annual “call to prioritize criminal justice reform and the clemency process in the United States,” he has only exercised his pardon power to grant 13 pardons and 124 commutations, less than one percent of the thousands of pending applications.”

Rev. McKinley, pastor of the Campbell AME Church in Washington, DC, wrote that

A pardon is an act of grace. But such acts of grace should not be so rare…. By exercising his pardon power more robustly, President Biden has the opportunity to paint a stark contrast with his predecessor… [T]here are thousands of people with criminal records whose applications for clemency have been languishing in the federal system—people who are currently in prison serving overly harsh sentences and people who have been released long ago but live with the looming threat of deportation, barriers to employment and housing, and other forms of civil death.

obtaining-clemencyLast April, Biden commuted the sentences of 31 prisoners already on CARES Act home confinement.

Proof of Biden’s commitment to clemency may be reflected in White House response to the DOJ Office of the Pardon Attorney. The OPA recently published its FY 2025 President’s Budget Submission, requesting $12.5 million (a 16% increase) to add to petition processing staff. OPA has 40 employees (including 26 attorneys) now. Its not-especially-ambitious goal is to increase the number of cases on which it makes a recommendation in a year from 30 to 35% and to increase the amount of correspondence answered in one month from 90 to 92%.

There is an undercurrent of unhappiness, even among Biden supporters, over his lukewarm embrace of federal criminal justice reform. Eric Alexander, a formerly incarcerated Black man, who now works for the Campaign for the Fair Sentencing of Youth, was recently asked by a member of the legislature about Biden’s record on criminal justice compared to his predecessor, Donald Trump, who signed the First Step Act into law. Alexander said, “It is my belief that if the last administration was allowed to be in office again, that we wouldn’t be here having this conversation. That administration would have dealt with this…”

promise210805St John University law prof Mark Osler, a clemency expert, said on CNN, “Alexander wasn’t deluded, tricked or unknowledgeable. While Trump promised nothing on criminal justice reform but still did something significant, Biden promised a lot but so far has done nothing of real substance. For those of us who don’t want Trump to be re-elected, this is an uncomfortable truth, but to Biden and his campaign, it should be a call to action.”

White House, A Proclamation on Second Chance Month, 2024 (March 29, 2024)

The Hill, This Easter, I pray for pardons (March 31, 2024)

CNN, Biden’s failures in criminal justice could cost him an election (March 26, 2024)

– Thomas L. Root

Prisoners Joining The 16,000-Member Club – Update for January 11, 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

BIG BOX, SMALL BAUBLE

My email inbox started smoking yesterday with reports from federal prisoners that they were receiving the promised Dept of Justice Office of Pardon Attorney letters informing them that their clemency petitions – many of which had been languishing for years – had been denied. Never year, the letters advised them, because they are welcome to apply again on the new and improved form.

The letter is at once brazen in its misrepresentations and utterly incompetent in its execution. What do I mean?

clemencyltr240111How about this? “Your commutation application was carefully considered, and the determination was made that favorable action is not warranted at this time.” Suddenly, after letting 16,000 or so clemency petitions pile up – although to be fair, most petitions were already piled high on the tables and chairs and floor when she took office – Pardon Attorney Elizabeth G. Oyer had in a few short weeks “carefully considered” all of the thousands of clemency petitions clogging the offices and corridors and made the “determination… that favorable action is not warranted at this time.”

That’s not what DOJ said.

The current Administration inherited an unprecedented backlog of clemency petitions. Soon, the Justice Department will begin issuing letters to petitioners that have not been granted clemency in order to deliver closure to those waiting for answers they deserve. Those receiving letters are welcome to submit new petitions.

No careful consideration. No “determination” that favorable action was not warranted. just delivery of closure and an invitation to start over.

Honesty, which appears to be in short supply at the OPA, would have said, “We’re so overwhelmed with petitions, many of them years old, that we’re just throwing everything out and starting over. If you’re still interested, you’re welcome to file again.”

OPApardonoyer240111And how about “[T]he list of names is published on the Department’s website at www.justice.gov/pardon?” As of January 10, 2024, no such list can be found. So an office so dysfunctional that it can’t even rustle up a list of all of the prisoners and former prisoners whose petitions were bounced – after telling unhappy applicants that the list was online – wants prisoners to believe that their “commutation application[s were] carefully considered.”

Or maybe the OPA doesn’t even care whether petitioners believe the assurance or not.

Sadly, this latest affront is about par for the Biden clemency approach. Sure, clemency seemed to be for sale in the Trump White House, but at least it was available, even if you had to navigate The Donald’s kleptocracy to get one. With President Biden, virtually the only people able to get clemency are the ones no longer in prison.

Which leads me to clemency experts and law profs Rachel Barkow and Mark Osler, who last week accurately described most of President Biden’s December 2023 clemency grants as just a “small gift in a big box,” according to .

Writing in The Hill, Osler and Barkow complained that Biden’s “claim to ‘have exercised my clemency power more than any recent predecessor has at this point in their presidency’ is pure hyperbole, but underneath might be the seed of a truly significant movement towards more meaningful uses of federal clemency.”

First, the hollow gesture: Biden’s pardon of people convicted of simple marijuana possession underwhelms. The Sentencing Commission estimates that more than 6,500 people are covered by the pardon but only 110 people have applied for the pardon so far.

The commutation of sentences of 11 people who were serving extraordinarily long sentences for nonviolent drug distribution offenses is more significant, Barkow and Osler say, but “eleven grants from a backlog of more than 16,000 clemency petitions waiting for action is hardly grounds for applause.”

paperpile240111

A few weeks before, Osler wrote in The Atlantic that federal clemency “has become a certifiable disaster, [having] withered to the point of uselessness and disrepute after decades of neglect, abuse, and administrative bloat. Petitions go through seven consecutive levels of review, wandering through the deeply conflicted Department of Justice — which sought the sentence in the first place — and the office of the White House Counsel. Not surprisingly, given this sticky muck of bureaucracy, a backlog of more than 16,000 pending petitions has built up—a striking number compared with the fewer than 2,000 pending petitions at the start of Barack Obama’s first term as president or the 452 petitions that President Bill Clinton inherited.”

The DOJ has promised a new, more streamlined process, but recalling that Biden – the “most lackluster user of the pardon power in memory [who] has done little beyond granting commutations to people who are already out of prison and pardons to minor marijuana offenders” – is the one making the promise, skepticism is the order of the day.

This week’s form-letter offal only underscores the reason such dubiousness is justified.

The Hill, Biden’s marijuana clemency grants are a small present in a big box (January 1, 2024)

The Atlantic, The Forgotten Tradition of Clemency (December 16, 2023)

– Thomas L. Root

Uncle Joe Goes Light on Clemency Gifts This Christmas – Update for December 22, 2023

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

CLEMENCY FOR CHRISTMAS

clemencyjack161229I had a post prepared wondering whether we would see any clemency from President Biden this year. As I was putting it up this morning, the President announced one mass pardon and commutations of sentences for “11 fellow Americans who are serving unduly long sentences for non-violent drug offenses.”

First, the mass marijuana pardon. The President granted a pardon 

to all current United States citizens and lawful permanent residents who, on or before the date of this proclamation, committed or were convicted of the offense of simple possession of marijuana, attempted simple possession of marijuana, or use of marijuana, regardless of whether they have been charged with or prosecuted for these offenses on or before the date of this proclamation.” The pardon covers people violating 21 USC § 844 (simple possession on federal property), 21 USC § 846 (attempts to possess pot), DC Code sections prohibiting simple possession of marijuana, and any of a thundering herd of Federal regulations that prohibit “only the simple possession or use of marijuana on Federal properties or installations, or in other locales, as currently or previously codified.

numbersBeyond that, the President commuted the sentences of 11 people convicted of drug offenses. His clemency picks by the numbers:

• Two of the recipients had trafficked in methamphetamines and nine in cocaine or crack;

• Four of the recipients were serving life terms, five were serving 20-year sentences, one a 22-year sentence, and one a 15-1/2 year sentence;

• For the non-life sentence people, the average sentence was 235 months. The commutations cut those sentences by an average of 19%;

• One life sentence recipient had served 15 years, the other three had served from 25-27 years;

• Two of the life-sentence inmates still have substantial time left to serve, one 8 years and the other 12 years; and

• Nine of the recipients were in prison, two were already on home confinement or in halfway house;

Any clemency is good clemency, but President Biden’s production is a little paltry. Last year, Biden issued pardons to six people on December 28, four for various low-level drug offenses, one for the illegal sale of whiskey, and one to an 80-year-old woman who killed her husband 47 years ago. All of the people were convicted for crimes that occurred at least 20 years before. No one had served more than two years.

At the time, the White House said the pardoned people had served sentences and “demonstrated a commitment to improving their communities and the lives of those around them.” This time around, the President said that the commutation serves “to uphold the values of redemption and rehabilitation.”

President Biden’s clemency performance to date is tepid. Law professor Mark Osler, one of a handful of clemency scholars in the US, wrote in The Atlantic:

Obama granted more than 1,700 commutations, which, unlike a pardon, shorten a sentence while leaving the conviction standing. But he accomplished this by cranking the broken system hard; he never changed the process. The news since then has been depressing. Donald Trump used clemency largely to reward tough guys, fraudsters, and others he knew or admired, and only a couple hundred of them at that. Joe Biden is the most lackluster user of the pardon power in memory. He has done little beyond granting commutations to people who are already out of prison and pardons to minor marijuana offenders. He has yet to even deny any petitioners by presidential action. An enormous backlog of petitions languishes, ignored.

clemency231222The politically safe but meaningless blanket pardon for simple marijuana possession will likely garner the headlines. Remember, when the President announced a mass pardon in October 2021, none of the eligible recipients was even in prison. President Biden’s action today has cut the number of pending petitions for clemency by an estimated six-one hundredths of a percent. There’s a reason I tell people wanting a federal clemency to use the $1.00 it will cost to mail it for a lottery ticket instead: the odds of winning big in Powerball are so much better.

White House, A Proclamation on Granting Pardon for the Offense of Simple Possession of Marijuana, Attempted Simple Possession of Marijuana, or Use of Marijuana (December 22, 2023)

White House, Clemency Recipient List (December 22, 2023)

Reuters, Biden reduces sentences of 11 facing non-violent drug charges (December 22, 2023)

The Atlantic, The Forgotten Tradition of Clemency (December 16, 2023)

AP, Biden pardons 6 convicted of murder, drug, alcohol crimes (December 30, 2022)

– Thomas L. Root

Turkeys Pardoned While 18,000 Wait – Update for November 21, 2023

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

BIDEN GRANTS PARDONS  – BUT JUST FOR SOME TURKEYS

President Biden bettered his dismal record on granting pardons and commutations yesterday. Unfortunately, the gobbling recipients are not in BOP custody.

pardonturkey231121Two Minnesota turkeys, Liberty and Bell, arrived at the White House in a stretch Cadillac Escalade to receive a pardon from the President in the annual darkly humorous (except to the incarcerated and their families) White House Thanksgiving ceremony. The Washington Post calls a “hollow tradition.”

Although Biden branded it “the biggest edition of this wonderful White House Thanksgiving tradition,” the Post said the “event felt exceedingly breezy and unmemorable — even by turkey-pardon standards.”

The birds hatched in July on a farm near Willmar. Within 150 miles of the farm are nearly 1,500 men and women in BOP facilities, none of whom received pardons or commutations yesterday. Over 18,000 clemency applications are on file at the DOJ (not including the two for the turkeys).

clemency220418Last week, Pardon Attorney Elizabeth Oyer visited FCI Petersburg to provide a series of educational sessions about the federal clemency process. Given the 18,000-application backlog and low number of Biden pardons and commutations granted almost three years into his term, the purpose of the Pardon Attorney’s “initiatives” is unclear. The Pardon Attorney said the visit and prior sessions at Ft Dix, Lewisburg and Aliceville are part of a year-round initiative by her Office “to increase the accessibility and transparency of the clemency process through education and community engagement.”

Better gobbledygook couldn’t have emanated from the happy birds, Liberty & Bell. And they should be happy. Today, without even asking for it, they got something over 18,000 federal prisoners have asked for but not gotten: clemency.

MPR News, Minnesota turkeys headed to White House for presidential pardon (November 17, 2023)

Washington Post, Biden turns 81, pardons turkeys, confuses Britney for Taylor (November 20, 2023)

Prison Policy Initiative, Executive inaction: States and the federal government fail to use commutations as a release mechanism (April 2022)

Dept of Justice Press Release, Readout of Pardon Attorney Elizabeth Oyer’s Visit to Federal Correctional Institution Petersburg (November 15, 2023)

– Thomas L. Root

Biden Commutes Sentences of 31 People Who Are Already At Home – Update for May 1, 2023

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

BIDEN COMMUTATIONS UNDERWHELM OVER 17,400 PEOPLE

obtaining-clemencyPresident Biden commuted the sentences of 31 federal prisoners last Friday, all of whom are currently on CARES Act home confinement. In each of the cases – involving sentences from 84 to 360 months – the commutation cut their imprisonment-at-home terms to end on June 30, 2023.

The 31 people whose sentences were commuted were doing time for nonviolent drug offenses, but none was in a secure facility. Instead, they were already living at home, working or going to school, attending religious services, shopping, but being confined to their homes otherwise, a White House official said. Nevertheless, the people whose sentences were committed, according to the Biden Administration, “have demonstrated rehabilitation and have made contributions to their community.”

Many of those receiving commutations would have received a lower sentence if they had been convicted of the same offense after passage of the First Step Act.

I don’t doubt that the 31 deserved commutations. My complaint is that addressing overly-long sentences that could no longer be imposed and mass incarceration by commuting 31 sentences is like bailing the ocean with a spoon.oceanclemency230501

The 31 commutations appeared to be window dressing to last Friday’s announcement of the White House’s broader initiative that aims to bolster the “redemption and rehabilitation” of people previously incarcerated through greater access to housing, jobs, food and other assistance. The announcement came at the end of Biden’s proclaimed “Second Chance Month,” which the White House says is an attempt to put a greater focus on helping those with criminal records rebuild their lives.

The “second chance” effort, described in a Dept of Justice 66-page Strategic Plan Pursuant to Section 15(f) of Executive Order 14074 issued last Friday, is an ambitious plan to provide rehabilitation services to federal and state prisoners, including programs for education, addiction treatment, services to female inmates, reduction of the use of SHUs and the now-obligatory plans to address LGBTQI+ prisoners, especially transgender ones. It promises changes to provide immediate Medicaid healthcare coverage to people being released, access to housing, enhance educational opportunities; expand access to food and subsistence benefits, and provide access to job opportunities and access to business capital.

As part of the push, the Dept of Education will make 760,000 federal and state prisoners eligible for Pell Grants through prison education programs and the Centers for Medicare & Medicaid Services will make some prisoners eligible for limited Medicaid coverage shortly before their expected release.

bureaucracybopspeed230501The plan begs the question of why, with First Step now over five years old, DOJ is only now providing its hagiographic description of what it intends to do. For example, the Dept of Education announced that it would renew the availability of Pell grants for prisoners – once common in the BOP but discontinued as part of the Violent Crime Control and Law Enforcement Act of 1994 – 20 months ago. But so far the BOP has only made access to Pell Grants “currently available through a pilot program to seven sites within BOP, where 300 incarcerated students are enrolled in college courses with two additional sites beginning implementation.”

Thus, with a head start beginning in August 2021, the BOP has signed up only 0.2% of its population for college course (which, incidentally, count for FSA credits).

clemency170206As for the clemency, the President’s commutation action brings the total number of federal prisoners whose sentences he has reduced over more than two years to 111, according to DOJ data. With 17,145 clemency petitions on file, this means that in Biden’s presidency thus far, he has acted on about 0.6% of petitions on file.

Biden’s promise early in his presidency to set up a White House commission to efficiently and fairly assess clemency petitions has never come to pass, just as his two large commutation announcements – 75 commuted in April 2022 and 31 now – appear to have just been a gimmick: heavy with women last year and all on home confinement with nonviolent drug convictions this year. One can only hope the DOJ’s ambitious “strategic plan” is more substantive than the President’s other criminal justice reform initiatives.

The White House, Clemency Recipient List (April 28, 2023)

DOJ, Rehabilitation, Reentry, and Reaffirming Trust: The Department of Justice Strategic Plan Pursuant to Section 15(f) of Executive Order 14074 (April 28, 2023)

Washington Post, Biden grants clemency to 31 drug offenders, rolls out rehabilitation plan (April 28, 2023)

Washington Times, Biden reduces sentences for 31 drug offenders (April 28, 2023)

The Hill, Biden to commute sentences of 31 nonviolent drug offenders, releases new rehabilitation plan (April 28, 2023)

– Thomas L. Root

‘Nothing’ Really IS Sacred – Update for April 25, 2023

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DEPT. OF MEANINGLESS CELEBRATIONS

partytime230425In honor of President Biden’s March 31 proclamation marking April as Second Chance Month, the Dept. of Justice’s Office of Pardon Attorney hosted “A Celebration of Second Chances” last Friday.

The event featured opening remarks by Deputy Attorneys General Lisa Monaco and Kristen Clarke and a panel of DOJ speakers and prior clemency or compassionate release recipients. who will discuss the impact of second chances through clemency. OPA said in a press release that it “is dedicated to supporting the President’s work to provide second chances to individuals who are currently or previously were incarcerated by the federal justice system.”

The event featured a panel of DOJ speakers and prior clemency or compassionate release recipients, who discussed “the impact of second chances through clemency.” OPA said in a press release that it “is dedicated to supporting the President’s work to provide second chances to individuals who are currently… incarcerated by the federal justice system.”

nothing230425Horror-and-fantasy cartoonist Gahan Wilson, whose work fueled my adolescent sense of irony way too many years ago, once drew a cartoon of strangely-clad cultists worshiping an altar festooned with the word “NOTHING” and a large “N.” One skeptic at the side of the crowd is asking another, “Is ‘nothing’ sacred?” Second Chance Month has succeeded in making life intimate art: Biden’s clemency initiative (as was Trump’s) is a ‘nothing,’ and Second Chance Month is worshiping it.

clemency220418Rarely has dedication been accompanied by such institutional failure. About 18,000 clemency petitions languish on file at DOJ, many dating from the Obama era. When elected, Biden promised a restructuring of the clemency process to expand its use and remove what he saw as excesses of the Trump era. That never happened. Biden granted clemency to 81 people last year (as well as people with federal marijuana possession, none of whom was in prison for the offense, had filed for clemency, or – for that matter – has even been publicly identified).

On an ACLU podcast last week, Cynthia Roseberry, Acting Director of the ACLU’s Justice Division, called on Biden “to retrospectively give clemency to people who have been charged previously and are sentenced disparately because they were charged with crack cocaine” during Second Chance Month.

DOJ Office of Pardon Attorney, Second Chance Month 2023 (April 12, 2023)

ACLU, Clemency Is One Answer to the War On Drugs (April 20, 2023)

– Thomas L. Root

They Begged His Pardon: Biden Finally Grants Short List at Year’s End – Update for January 5, 2023

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BIDEN GRANTS HANDFUL OF PARDONS

Maybe I was too hasty in criticizing President Biden last week for granting no Christmas clemency petitions, with about 18,000 petitions for commutation or pardon pending (many for years).

pardon160321Biden finally issued pardons to six people last Friday, four for various low-level drug offenses, one for the illegal sale of whiskey, and one to an 80-year-old woman who killed her husband 47 years ago. Three of the crimes had occurred at least a quarter century ago, and the fourth – an Air Force enlisted man convicted of taking (but not distributing) Ecstasy – happened about 20 years ago.

The White House statement said the pardoned people had served sentences and “demonstrated a commitment to improving their communities and the lives of those around them.”

The pardons came on the last business day of the year. In October, Biden pardoned thousands of unnamed people convicted of simple marijuana possession under federal law. In April, Biden granted three pardons and granted 75 commutations.

Two of the five pardoned last week served about two years in prison. Three of the other four served under a year, and the last one got probation.

At trial, the woman who killed her husband – convicted under District of Columbia law – was denied the right to argue that he had beaten her. Her appeal, the White House said, “marked one of the first significant steps toward judicial recognition of battered woman syndrome, and her case has been the subject of numerous academic studies.”

clemencyjack161229Two years into Biden’s Administration, the theme of his clemency policy seems to be that pardons will issue, favoring very simple drug and politically-preferred offenses, when the crime happened a long time ago.  Commutations – which require actually letting people out of prison – seem to be disfavored by this White House.

A day before the pardon announcement, White House Domestic Policy Council Director Susan Rice said that Biden’s marijuana pardons and scheduling directive were among the administration’s top accomplishments in 2022. Biden issued a scheduling review order in October directing the Dept of Health and Human Services to consider rescheduling pot to a lower-level controlled substance.

Associated Press, Biden pardons 6 convicted of murder, drug, alcohol crimes (December 30, 2022)

White House, Clemency Recipient List (December 30, 2022)

Ibn-Thomas v. United States, 407 A.2d 626 (1979)

Marijuana Moment, Top White House Official Lists Biden’s Marijuana Pardons And Scheduling Review Among Top 2022 Administration Achievements (December 30, 2022)

– Thomas L. Root

No Clemency from Santa Biden This Year – Update for December 29, 2022

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LISAStatHeader2small-newyear

CHRISTMAS CLEMENCIES ARE A BUST

Congress is not the only underperforming branch of government this year. So far this month, President Biden granted traditional year-end clemencies to the following:

_________________
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clemency170206That’s right… to no one.

Last week, sentencing law experts (and law professors) Mark Osler and Rachel Barkow took Biden to task for using the tool of clemency for symbolism rather than substance, while ignoring clemency’s official process.” Saying that he has acted like former President Trump, Osler and Barkow – writing in the New York Daily News – complained that while 17,000 petitions (it’s closer to 18,000) have piled up — a “historic backlog — and many petitioners have been waiting for answers for five years or more.”

Osler and Barkow wrote that “like Trump, Biden has simply ignored those thousands of people waiting for consideration of their heartfelt pleas for clemency; in fact, he has failed to deny a single petition by presidential action even as the pile has grown into a tower. While many clemency petitions are worthy, many others are obviously not, and it shouldn’t be hard to say “no” to the weakest petitions. Like Trump before him, Biden seems either frozen in inaction or just doesn’t care.”

Biden’s commutation so far of 82 people for nonviolent offenses (and the vague pardons to unnamed marijuana possessors) “are more about signaling and politics than helping real people,” Barkow and Osler said.

clemency220418For all of the Biden Administration’s hand-wringing over retroactively remedying the crack-powder sentencing disparity that was embraced by the failed EQUAL Act (S.79), MSNBC reported last week, “Biden, who supported the proposed legislation, could remedy these past injustices with clemency, but he hasn’t done so, despite issuing pardons ahead of the midterm elections for cannabis possession.”

NY Daily News, Biden’s cowardice on clemency (December 20, 2022)

MSNBC, Racist war on drugs is the real winner of Congress’s massive spending bill (December 23, 2022)

– Thomas L. Root

LISAStatHeader2small-newyear

Pardoning Turkeys, Not People – Update for December 1, 2022

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BIDEN TURKEY PARDONS DRAW CRITICISM

President Joe Biden continued a 75-year tradition last week, pardoning a pair of North Carolina turkeys named Chocolate and Chip after his favorite flavor of ice cream.

turkeypardon221201“The votes are in, they’ve been counted and verified,” Biden said, granting the pardons. “There’s no ballot stuffing. There’s no fowl play.”

Vote counting apparently did not include the over 18,000 people whose applications for pardons or commutations are piled up at the Dept. of Justice Pardon Attorney’s office.

Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog, referred to the ceremony as “the annual turkey pardon silliness at the White House.”

clemencybacklog190904Reason magazine was not much kinder to Biden’s clemency for those convicted of simple marijuana possession announced in October. The mass pardon was “an example of all hat and no cattle,” Reason said. “‘I’m keeping my promise that no one should be in jail for merely using or possessing marijuana,’ [Biden] said in October. ‘None…’ But not a single person was released from custody by the Bureau of Prisons due to Biden’s proclamation… The presidential pardon power can and should be used more often. Not just for turkeys, but for the thousands of people serving decades due to draconian drug laws that Biden supported for most of his political career.”

Associated Press, Biden opens holidays, pardons turkeys Chocolate and Chip (November 21, 2022)

Sentencing Law and Policy, Does Prez Biden’s clemency record in 2022 deserve some praise on the day of turkey pardons? (November 21, 2022)

Reason, Pardon People, Not Turkeys (November 23, 2022)

– Thomas L. Root

Legislators Tackle Clemency Reform – Update for May 24, 2022

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

HOUSE SUBCOMMITTEE EXPLORES FIX FOR CLEMENCY MESS

A subcommittee of the House Judiciary Committee last Thursday grappled with the jammed-up federal clemency process, in which an estimated 17,400 petitions await Presidential consideration.

clemencypitch180716The Subcommittee on Crime, Terrorism & Homeland Security heard from a spectrum of witnesses – from a former Mississippi US Attorney who argued the Dept of Justice’s “policies with regard to review of clemency petitions are correct: clemency should only be granted in extraordinary circumstances and exercised rarely” – to clemency experts who deconstructed the convoluted process in academic detail.

In opening remarks, Subcommittee Chair Rep. Sheila Jackson Lee (D-TX) said that Congress should encourage presidents to routinely use clemency powers, tools she called “useful… not just to correct individual injustices but to overcome “misguided policies that led to mass incarceration.”

Rep Ayanna Pressley (D-Mass) urged passage of a bill she is sponsoring – the Fair and Independent Experts in Clemency Act (or “FIX Clemency Act”), H.R. 6234. That measure would replace DOJ’s Office of Pardon Attorney with an independent clemency board, made up of nine people appointed by the President. The Board would send pardon and commutation recommendations directly to the president.

Clemency expert and law professor Mark Osler testified that what was once a relatively simple clemency system has grown “and metastasized until the process came to include seven distinct actors, each with their own interests and biases, acting sequentially. Today, a clemency petition will be considered in turn by the staff of the Pardon Attorney, the Pardon Attorney, the staff of the Deputy Attorney General, the Deputy Attorney General, the staff of the White House Counsel, the White House Counsel, and finally by the President.”

“The absurd inefficiency of seven reviewers seeing a petition only after a predecessor is done — rather than simultaneously as part of a board — is striking,” Osler said. “On top of that, baked into this system is negative decision bias; reviewers know they can get in trouble only for a bad “yes,” which incentivizes ‘no’s.’ It is seven valves, all spring-loaded shut, on the same pipe.”

clemency220418Law professor Rachel Barkow, a clemency expert and former member of the US Sentencing Commission, told the Subcommittee that “there are now more than 18,000 people waiting for a response to their petitions, many of whom have been waiting for years. It is hard to overstate the level of mismanagement responsible for this unconscionable backlog. These people deserve answers to their petitions, yet the administration has done nothing to suggest it has any grasp of the urgency of the situation.”

Barkow said, “The view inside DOJ… is that pardon attorneys should ‘defend the department’s prosecutorial prerogatives” and that “the institution of a genuinely humane clemency policy would be considered an insult to the good work of line prosecutors.” In light of this view, she said, “there is a strong presumption at DOJ that favorable recommendations should be kept to an absolute minimum.”

pardonme190123The grant rate for commutations and pardons across presidencies has been low in recent years compared to the rates for most of the nation’s history. Trump granted 2% of the petitions he received, Obama granted 5%, George W. Bush granted 2%, Clinton granted 6%, George H.W. Bush granted 5%, and Reagan granted 12%. This contrasts with Carter’s grant rate of 21%, Ford’s rate of 27%, and Nixon’s rate of 36%. “Between 1892 and 1930,” Barkow said, “27% of the applications received some grant of clemency.”

House Subcommittee on Crime, Terrorism & Homeland Security, Oversight Hearing on Clemency and the Office of the Pardon Attorney (May 19, 2022)

Statement of Professor Rachel E. Barkow, New York University School of Law, House Judiciary Comm, Subcomm on Crime, Terrorism, and Homeland Security (May 19)

Statement of Professor Mark Osler, University of St. Thomas, House Judiciary Comm, Subcomm on Crime, Terrorism & Homeland Security (May 19, 2022)

UPI, House panel weighs reforms for clemency amid backlog of 17,000 petitions (May 19, 2022)

– Thomas L. Root