Presidential Clemency May Be Only Personal for Trump – Update for January 8, 2021 | Legal Information Services Associates LLC

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

CLEMENCY – WWJD (WHAT WILL JOE DO?)

The silliness has already started about incoming President Joe Biden. Example: I received one report last week that the new President intended to pardon one inmate a day for his first 100 days in office.

Any truth to this? Not a bit.

We had expected an avalanche of clemencies from the Trump Administration in its remaining 12 days, although with the Oval Office sounding more like the Fuhrerbunker. What will happen over the final 300 hours or so of the Trump Administration is anyone’s guess. Late reports say that the President is much more focused on pardoning himself than he is on anyone else. Bloomberg reported yesterday that Trump has a very short list of preemptive pardons, including his family, closer staff, two rappers, Kodak Black and Lil’ Wayne, and the ex-husband of a Fox News host.

No one should be encouraged by President Trump’s track record so far. Harvard professor Jack Goldsmith said Trump “is stingy” with his pardon power. A Pew Research Center study showed that through November 23, Trump had granted clemency to less than 0.5% of the 14,000 people who petitioned him for it through the end of the 2020 fiscal year, according to the study. As The New York Times observed, “Many who have applied have little chance of clemency under any circumstances. But those with sentences they contend are excessive and people who have shown remorse and turned their lives around in prison are hoping for mercy.”

Almost all of the people to whom Trump has granted clemency have had a personal or political connection to the White House, and it appears that only seven were recommended by the Dept of Justice Pardon Attorney, Goldsmith said. DOJ rules normally requires a person applying for clemency to wait at least five years after conviction or release from confinement, a rule that was not applied many of Trump’s grants.

Not that skipping the Pardon Attorney’s office is necessarily a bad thing. Criminal justice reform advocates believe Trump is right to sideline the DOJ from clemency decisions. But rather than control the process for political ends, advocates say, Biden should use it to help non-violent drug offenders with questionable convictions or harsh sentences. Relying on the DOJ’s Pardon Attorney to review and make recommendations on clemency requests, they say, is bureaucratic and puts those decisions in the hands of the department that put the offenders behind bars.

Biden’s criminal justice plan says he will “broadly use his clemency power for certain non-violent and drug crimes.” In addition to removing the sole oversight of the Office of the Pardon Attorney, Biden could improve the process by creating a permanent independent advisory panel that includes criminal justice reform activists, defense attorneys and pardoned convicted offenders, alongside federal prosecutors, supporters say.

“It can be improved by not depending on the same office that fought for an individual’s conviction and draconian sentence to look back and say we need to provide relief,” one advocate said. “There is a conflict right there.”

Former Pardon Attorney Margaret Love says that the biggest problem with clemency is that too much is asked of it. There should be more statutory relief valves, like sentence reduction, to reduce sentences, as well as a means of regaining full citizenship rights for people who have been released. She argued last week, “President Trump’s abuse of his pardon power could be seen as a blessing in disguise if it provides the opportunity to wean the federal criminal justice system from its dependence upon presidential action for routine relief. Only if freed from its more workaday responsibilities can presidential pardon play the constructive role that the Framers intended.”