We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
THE SHORT ROCKET
A couple of short takes from last week’s news (and one update to yesterday:
Pardon Me: The June 2021 Federal Sentencing Reporter was devoted entirely to the presidential pardon power. In one essay, the authors found that of President Trump’s 238 clemency grants, only 25 (11%) were recommended by the DOJ Pardon Attorney.
New York magazine reported last week that Trump’s 238 clemency grants was a 50-year low. While Biden has hinted he’ll started granting clemency next year (before the midterm elections), the magazine was skeptical:
“The appearance of being “soft on crime,” and the possibility that someone you free re-offends in some politically inopportune way, makes it hard for presidents to rationalize pardoning people or commuting sentences with any regularity… The effect is that clemency has become really unusual. And when something is unusual, each decision becomes freighted with dramatic significance and scrutinized to the nth degree.”
Meanwhile, law professors Rachel Barkow (New York University) and Mark Osler (University of St. Thomas School of Law) sounded the alarm this week that contrary to its campaign pledges, the Biden Administration is poised to resume the errors of the past.
Inexplicably, however, the Biden administration… wants to leave clemency under the control of the Justice Department. Doing so will undermine the administration’s stated hope of achieving criminal justice reform and reducing racial bias in the federal system….
In conversations with activists, the administration has, at most, expressed some desire to use the pardon power before the 2022 midterm elections. That tells us two things, both dispiriting: that this is a low priority for the president, and that the administration does not yet have a handle on how this all could work. That’s far too long for reforms that don’t need congressional approval and when there is a backlog of petitioners who have waited too long for justice.
Federal Sentencing Reporter, Vol 33, Issue 5, After Trump: The Future of the President’s Pardon Power
Lawfare, Trump and the Pardon Power (July 6, 2021)
New York Magazine, When Will Joe Biden Start Using His Clemency Powers? (July 5, 2021)
The New York Times, We Know How to Fix the Clemency Process. So Why Don’t We? (July 13, 2021)
DOJ Inspector General Calls Out BOP on Faith-Based Support: A report issued last week by the DOJ Office of Inspector General found that a 30% shortage in BOP chaplains as well as “a lack of faith diversity” among the chaplaincy staff “leaves some inmate faith groups significantly underrepresented,” causing “many institutions to rely on alternative religious services options, such as inmate-led services.”
The IG said “One particular concern was the potential for an inmate to use a religious leadership role to engage in prohibited activities or as a method to obtain power and influence among the inmate population.” The report concluded that “in the absence of a fully staffed and diverse chaplaincy, BOP institutions are unable to adequately administer their religious programs, prompting many BOP institutions to turn to alternatives that pose enhanced risks, such as inmate-led services and reliance on minimally vetted volunteers.”
DOJ, Audit of the Federal Bureau of Prisons’ Management and Oversight of its Chaplaincy Services Program (July 7, 2021)
Read Up on EBRRs: The BOP has issued a Program Statement on how staff is to determine inmate programming needs. This is important, because – contrary to the rumor mill, so-called inmate.com – earned time credits (ETCs) are only awarded for completion of approved programs that address needs previously identified by BOP staff. The new program statement guides you on how to get needs identified that will lead to ETCs.
PS 5400.01, First Step Act Needs Assessment (June 25, 2021)
– Thomas L. Root