We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
GOOD AND BAD NEWS ON CLEMENCY
The New York Times reported last week that Biden Administration officials have begun evaluating clemency requests and have let activists know that President Biden may start issuing pardons or commutations.
That’s the good news. The bad news is that White House officials have indicated privately that it is working with the Department of Justice’s Office of the Pardon Attorney to process clemency requests with the intent of issuing some clemencies the president sign some before the 2022 midterm elections in. The White House has indicated that it will rely on the rigorous application vetting process overseen by the OPA, an office that most clemency advocates see as an impediment to clemency, not a facilitator.
Several pretty influential commentators, including NYU law prof and former Sentencing Commission member Rachel Barkow, have urged White House officials to consider moving the clemency process out of DOJ, “noting the paradox of entrusting an agency that led prosecutions with determining whether the targets of those prosecutions deserve mercy,” as The Times put it. But the Biden administration is not inclined to circumvent the OPA, according to the paper, instead following the approach adopted by President Barack Obama, who issued more than 1,900 clemency grants, mostly to people recommended by the DOJ and who had been serving drug trafficking sentences.
Biden’s team has hinted it is establishing a deliberate, systemic process geared toward identifying entire classes of people who deserve mercy. The approach could allow the president to make good on his campaign promise to use his authority to address racial equity. Given that 70% of federal prisoners are nonwhite, and 48% of all inmates are convicted of drug offenses, a focus on racial equity could have substantial impact.
An April push by the National Council for Incarcerated and Formerly Incarcerated Women and Girls, called on Biden to grant pardons or to commute the sentences for 100 women during his first 100 days of office. Nothing came of it.
As of May 10, there were 3,211 pardon and 11,804 clemency petitions pending, according to DOJ statistics. Of those, 14 pardons and 461 clemency petitions were “closed without presidential action.”
New York Times, Biden Is Developing a Pardon Process With a Focus on Racial Justice (May 17)
US Sentencing Commission, Quick Facts – Offenders in Federal Prison (March 2021)
CNN, Advocates push for Biden to use his executive powers to grant clemency for hundreds of women in federal prisons (May 19)
DOJ, Clemency Statistics (May 23)
– Thomas L. Root