Tag Archives: clemency

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

Progressives for Pot Clemency – Update for March 22, 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.

CONTINUED CALLS FOR MARIJUANA CLEMENCY

Thirty-six liberal House members urged President Biden to grant clemency to federal inmates for nonviolent marijuana offenses.

“The continued incarceration of these individuals continues the racist legacy of the War on Drugs, contradicts the current societal and legal trends regarding marijuana, and represents an unnecessary burden on our morals and justice system,” they said in a letter to the President. “Until the day Congress sends you a marijuana reform bill to sign, you have a unique ability to lead on criminal justice reform and provide immediate relief to thousands of Americans.”

marijuana221111At a White House roundtable on marijuana last Friday, Vice President Kamala Harris called for rescheduling marijuana, which should be completed by the DEA this year. Marijuana is currently classified as a Schedule I drug, in the same category as heroin. The White House is seeking to change that to Schedule III alongside testosterone and ketamine.

“Marijuana is considered as dangerous as heroin, and more dangerous than fentanyl, which is absurd,” Harris said. “Not to mention patently unfair.”

Politico reported last Friday, “The White House event is the latest sign that the Biden administration plans to tout its efforts to overhaul federal marijuana policies ahead of the presidential election. Biden also cited his moves to pardon federal marijuana offenders and loosen federal weed restrictions during last week’s State of the Union address. A whopping 70 percent of Americans back marijuana legalization, and that position is particularly popular with young voters, a crucial demographic that Biden is struggling to maintain support from.”

Letter to President Biden (March 13, 2024)

Politico, Vice president criticizes federal cannabis restrictions during White House weed event (March 15, 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

Clemency: Out With The Old, In With the New – Update for January 2, 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.

THROWING OUT THE LEFTOVERS

Sometime this week, we’ll clean out the refrigerator. We stored our Christmas dinner leftovers eight days ago in Tupperware containers with the best of intentions: we would have several great meals where we could reprise the Christmas feast, remembering that fine meal while being frugal.

throwaway240102But somehow we never get to the leftovers. Finally, this week, we’ll just sigh and decide to throw all of the old leftovers away because they’ve just been sitting around too long. We don’t have the appetite to eat plum pudding over a week later, and we don’t know whether the Christmas goose is still safe to eat, no matter how carefully we stored it.

The Biden Administration has its own leftover problem, and like we’ll do in a couple of days, the Dept of Justice is addressing clemency by throwing everything out and starting over. Last week, DOJ – in a time-honored government agency tradition – hailed its good intentions as a cover for its historical failings. The agency announced an all-new initiative on clemency that tacitly admitted its management of the pardon/commutation program over the last 1,079 days or so has been an unmitigated FUBAR.

A DOJ “Fact Sheet” issued last Thursday announced the rollout of a new simplified clemency form that runs eight pages (not including instructions) compared to the old form’s six pages. The 33% expansion isn’t necessarily a bad thing: The new form includes for the first time questions about prison programs completed and details about release plans – logical considerations, perhaps, in a clemency determination and information an applicant previously had to know should be included in an attachment to the form.

The DOJ also promises that it “is taking steps, including providing additional staffing and technical support for the Office of the Pardon Attorney, to reduce the processing times to ensure that clemency petitioners receive answers in a timely fashion.”

So that’s good, not bad, right? Yes, except for the DOJ’s next improvement:

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.

do-over240102If a federal prisoner is one of the 18,000 applicants on file, he or she has just won the right to apply for commutation again, using a new form. All that work done on the prior form? All the BOP staff’s work in responding to Office of Pardon Attorney requests for information (and there’s been a lot of that)? Consider it practice…

To be sure, Biden’s DOJ clemency team did inherit an incredible backlog of clemency petitions from President Trump, who inherited an incredible backlog of clemency petitions from President Obama, Still, with Biden’s first (and maybe only) term 75% completed – the current President’s clemency grant rate is the worst in modern presidential history. Unlike all of his predecessors, he has not denied any petitions at all, meaning that the number of backlogged petitions has just gotten bigger.

clemency220418Still, candidate Biden once promised to assemble a “60-person agency independent of the DOJ, composed of people with diverse backgrounds” to review clemency cases. Less than a month into Biden’s term, Politico reported that the White House was seeking suggestions on how to reform the clemency system and deal with the backlog. But even then, some advocates doubted that Biden’s team had a plan for dealing with the backlog.

Ohio State University law professor Douglas Berman, writing in his Sentencing Policy and the Law blog, said at the time:

Regular readers will not be surprised to hear me endorse the sentiments of Cynthia Roseberry, namely that “It’s time. It’s past time.” I also share Mark Osler’s view that this could have and should have been a transition priority for the Biden team. Still, I am not inclined to aggressively criticize the Biden Administration if it currently has advisers and insiders talking to and working with advocates about how to put together a “comprehensive plan” for effective clemency reform. But, as the title of this post is meant to highlight, taking a careful and deliberative process toward grander reform of the entire clemency process should not be an excuse for Prez Biden to hold back entirely on the use of his clemency pen.

football140422Prisoners and their families can probably be forgiven for being skeptical of any Administration promise now that it is going to do anything, where its prior assurances have proven to be hollow.

Lucy. Charlie Brown. Football. C’mon, prisoners, try another kick. The DOJ promises to hold the ball for you this time.

For those more optimistic than I, the new commutation form is available at

https://www.justice.gov/media/892361/dl?inline

DOJ also promises that it “is working to educate the public about how to submit a clemency application in order to demystify the process and help ensure broader and more equitable access.” The only mystery is why we have gone three years into the presidential term of a man who in his first 100 days promised to fix clemency, only to have 18,000 people be told to start over.

DOJ Press Release, Fact Sheet: Justice Department Improvements to the Clemency Process (December 28, 2023)

DOJ, New Clemency Form (December 28, 2023)

Politico, Trump left behind a clemency mess. The clock’s ticking for Biden to solve it. (February 11, 2021)

Sentencing Law and Policy, How about some clemency grants from Prez Biden while his team works on grander clemency plans? (February 11, 2021)

– Thomas L. Root

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

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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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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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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

The Legislative Push for Drug Reform Resumes – Update for March 2, 2023

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MEANWHILE ON CAPITOL HILL…

equal220812I reported January 30th that the EQUAL Act was about to be reintroduced. A week ago, Sens Cory Booker (D-NJ), Thom Tillis (R-NC) and others, along with Reps Kelly Armstrong (R-ND), Don Bacon (R-NE) and Hakeem Jeffries (D-NY), the House Democratic Leader, got it done, simultaneously introducing “bipartisan” EQUAL Act bills in the House (H.R. 1062) and the Senate (S.524).

Meanwhile, some Republican lawmakers are excited about a survey released last week by the Coalition for Cannabis Policy, Education, and Regulation (CPEAR). The survey found that 68% of respondents back ending federal marijuana prohibition. The result was 10% higher than a year ago.

“The polling is clear: federal cannabis prohibition is in direct contradiction to the overwhelming will of the American electorate, including a notable majority of conservative voters,” Rep. Dave Joyce (R-OH), co-chair of the Congressional Cannabis Caucus, said. “I hope more of my colleagues on both sides of the aisle will heed the call of their constituents and join me in working towards a safe and effectively regulated legal marketplace.”

Rep. Nancy Mace (R-SC) was not as sanguine. Mace, who filed a comprehensive marijuana legalization bill in the last Congress, said that “it appears the only place where cannabis reform is unpopular is in Washington, DC.”

The lack of serious interest in pot reform shows at the other end of Pennsylvania Avenue, too. Last week, NORML complained that despite President Biden’s announcement last October of a blanket pardon for people convicted of simple federal marijuana possession, “none of the 6,557 Americans identified by the U.S. Sentencing Commission as being eligible for presidential pardons have received them.”

clemency170206Reason said last week that ”Biden, after reaping political benefits by announcing the pardons a month before the midterm elections, has not actually issued any. He got good press and may have helped Democrats in the midterms by motivating voters who care about drug policy reform. But his promise remains just that until he does what he said he would do.”

Candidate Biden promised a wholesale reform of the pardon system with a special White House commission deciding applications. In the first month of his presidency, hopes ran high that he would be taking decisive action to clean up a process that had left over 14,000 clemency applications languishing at the DOJ. But now, with over 18,000 applications awaiting action, we are no closer to a plan for dealing with them.

EQUAL Act (H.R. 1062)

EQUAL Act (S. 524)

Ripon Advance, Armstrong unveils bill to end federal sentencing disparity for cocaine offenses (February 22, 2023 )

Marijuana Moment, GOP Congressional Lawmakers Tout Poll Showing Republican Voters Back Federal Marijuana Legalization (February 23, 2023)

Reason, Four Months After Biden Promised Marijuana Pardons, He Has Not Issued Any (February 16, 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