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Clemency: No One Here But Us Turkeys – Update for December 13, 2021

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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 CRITICISM RISES AS CHRISTMAS APPROACHES

Business Insider noted last week that “at this point in his presidency, Joe Biden has pardoned just two sentient beings: Peanut Butter and Jelly, 40-pound turkeys from Jasper, Indiana.”

turkey211122Not that prior presidents have done much better. Trump, by contrast, had pardoned three at this point in his presidency: two turkeys and one former sheriff. Clinton, Obama, and George W. Bush all waited until at least their second year in office before granting clemency to a human being.

That’s not because Biden can’t find candidates. About 17,000 petitions are pending, 2,000 of which have been filed in the past year.

Last week, Kevin Ring of FAMM, Sakira Cook of the Leadership Conference on Civil and Human Rights, and others met with White House staff to turn up the pressure. The meeting appears to have been frustrating for Ring. During an NPR roundtable last week on criminal justice reform, he noted that Biden has thus far even resisted clemency for CARES Act detainees. “To me, it’s a bellwether,” Ring said. “Because if the administration won’t address this and address it immediately, I don’t know what hope we can have that other things are going to get done.”

NPR noted that the BOP population has increased by about 5,000 since Biden took office.

Progressives in the House of Representatives, unhappy with a clemency system they say is too slow and deferential to prosecutors, last week proposed the creation of an independent panel they hope would depoliticize and expedite pardons.

clemency170206The “FIX Clemency Act,” HR 6234, was introduced last Friday by Rep. Cori Bush (D-Missouri), Vice Chair of the House Judiciary Subcommittee on Crime, Rep. Ayanna Pressley (D-Mass), and Rep. Hakeem Jeffries (D-NY). The bill calls for a nine-person board that would be responsible for reviewing petitions for clemency and issuing recommendations directly to the president. The recommendations would also be made public in an annual report to Congress. At least one member of the panel would be someone who was previously incarcerated.

That might work… if you could convince the President to appoint anyone to it. Last week, Law360 went after Biden for having yet to nominate anyone to the U.S. Sentencing Commission, which is “keeping a potentially key player in justice reform on the sidelines, according to legal experts.”

The article points out that the USSC “hasn’t had a full roster of seven commissioners for nearly half a decade and has lacked the minimum four commissioners needed to pass amendments to its advisory federal sentencing guidelines since the beginning of 2019.” As a result, an agency whose job is to evaluate the criminal justice system’s operations and potentially drive reform has been taken off the field, Law 360 quoted Ohio State University law professor and sentencing expert Doug Berman as saying.

noquorum191016The USSC currently has only one voting member, Senior U.S. District Judge Charles Breyer, who will have to leave next October, regardless of whether anyone has been named to the Commission or not.

During another NPR roundtable last week, NPR reporter Asma Khalid said of criminal justice reform, “You know, I cover the White House. And I will say, I don’t see this as really being an issue at the forefront, at least not from what I’ve heard publicly from them.”

The leadership vacuum is perhaps best reflected in rudderless Congressional action. Last September, the House of Representatives attached the Secure and Fair Enforcement (SAFE) Banking Act to its version of the National Defense Authorization Act. The SAFE Act would shield national banks from federal criminal prosecution when working with state-licensed marijuana businesses, and was widely seen as opening the door to marijuana reform. Last Tuesday, the final NDAA bill text was released without SAFE Banking Act language.

Many would say Biden has not enjoyed a legislative honeymoon, even while owning both houses of Congress. Maybe it’s only a legislative cease-fire, but whatever it is, the 11-month armistice is unlikely to hold for more than another year until Republicans retake at least one chamber. And with Americans’ perception that crime in their local area is getting worse surging over the past year, there will be less interest in criminal justice reform as the mid-terms approach.

Business Insider, Despite promises, Biden has yet to issue a single pardon, leaving reformers depressed and thousands incarcerated (December 8, 2021)

NPR, Criminal justice advocates are pressing the Biden administration for more action (December 9, 2021)

HR 6234, FIX Clemency Act (December 9, 2021)

Press Release, Bush, Pressley, Jeffries Unveil FIX Clemency Act (December 10, 2021)

Law360.com, Biden’s Inaction Keeps Justice Reform Group Sidelined (December 5, 2021)

NPR, No One Has Been Granted Clemency During Biden Administration (December 9, 2021)

Cannabis Wire, SAFE Banking Scrapped from NDAA Despite Major Push (December 8, 2021)

Gallup poll, Local Crime Deemed Worse This Year by Americans (November 10, 2021)

– Thomas L. Root

Biden Pardons Turkeys But No Prisoners – Update for November 22, 2021

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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 ISSUES FIRST PARDONS… NO HUMANS MAKE THE LIST

turkey211122There was no shortage of complaints from criminal justice reform advocates last Friday as President Biden “pardoned” two turkeys with the rather vegan names of “Peanut Butter” and “Jelly” in a White House ceremony.

“Peanut Butter and Jelly were selected based on their temperament, appearance, and, I suspect, vaccination status,” Biden said. “Yes, instead of getting basted, these two turkeys are getting boosted.”

But when a reporter asked whether he would be pardoning “any people in addition to turkeys,” Biden treated the question as a joke. “You need a pardon?” the president quipped. He didn’t reply to a follow-up question about marijuana prisoners as he walked away from assembled journalists.

turkeyb161123The turkeys may not get roasted, but the President isn’t so lucky. Law professor and clemency expert Mark Osler wrote in the Minneapolis Star-Tribune that “those of us who work in the field of clemency are left with a bitter taste in our mouths. Biden’s pardon of those turkeys represents the first time he has shown any interest at all in clemency. The problem isn’t just that Biden isn’t granting any clemency, it’s that he isn’t denying any, either. Following the lead of his predecessor, former President Donald Trump, Biden is just letting requests sit.”

Osler cited the 18,000 pending clemency petitions – 16,000 more than when Obama took office – and the danger CARES Act people may be sent back to prison when the pandemic ends, as “two genuine crises unfolding in federal clemency.”

A few days earlier, Interrogating Justice complained that

President Joe Biden campaigned heavily on justice reform, including with the federal Bureau of Prisons. He acted swiftly after his inauguration by terminating private prisons that housed federal inmates. However, since then, there has been virtually nothing. Various justice-reform groups have called out the president for his apparent lack of action. Points of frustration start with the increased population of federal prisons, the BOP’s inept handling of the pandemic, the failure to apply First Step Act time credits and most recently the question of granting clemency to all prisoners who are at home confinement under the CARES Act. And these are just a few of the many issues that plague the BOP.

turkeyprison161114The Minneapolis Post argued that “

While campaigning for president last year, however, Biden promised sweeping changes to the criminal justice system. And Biden could not have been more clear that he was committed to reform — promising, “as president” to “strengthen America’s commitment to justice and reform our criminal justice system. Then Biden got elected. And he’s been busy with other things…”

The Hill called it Biden’s “do-nothing” approach to clemency, which

he seems to have delegated entirely to the DOJ… Most of the Democratic candidates for president endorsed this change because the DOJ had proven itself incapable of handling clemency impartially and efficiently for decades… So why doesn’t Biden take clemency away from DOJ and create the kind of advisory commission that President Ford used to aid him in processing a similar backlog of petitions from people with convictions for draft evasion during the Vietnam War? The only apparent answer is that Biden does not want to look like he is interfering with DOJ. But clemency should never have been in DOJ in the first place. It is there by historical accident — no state gives clemency decision-making power to the same prosecutors who bring cases in the first place because of the obvious conflict of interest problem it poses.

New York Times, Boosted, Not Basted: Biden Pardons 2 Turkeys in Thanksgiving Tradition (November 19, 2021)

New York Post, Biden laughs off question about clemency for humans before pardoning turkeys (November 19, 2021)

Minneapolis Star-Tribune, When it Comes to Human Pardons, Thanks for Nothing (November 19, 2021)

Interrogating Justice, The Biden Administration Has Gone Quiet on Justice Reform at the BOP (November 15, 2021)

Minneapolis Post, When will Biden make good on his promise to reform criminal justice? (November 15, 2021)

The Hill, Biden can’t let Trump’s DOJ legacy stifle reform (November 17, 2021)

 Thomas L. Root

A (Sentencing) Army of One – Update for November 16, 2021

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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.

JUDGE BREYER TELLS BIDEN HE’S LONELY ON THE SENTENCING COMMISSION

Senior District Judge Charles Breyer, who sits on the U.S. District Court for the Northern District of California, is the last man standing.

lastman211116The U.S. Sentencing Commission’s lone remaining member last Thursday called upon President Biden to act now to nominate enough new commissioners to put the Commission back in business so it can help implement the 2018 First Step Act.

“I would be surprised and dismayed if nominees are not sent to the Senate by the early part of next year,” Judge Breyer said in an interview with Reuters.

The U.S.S.C. lost its quorum after the December 2018 meeting, which ironically enough occurred just about a week before First Step was signed into law. Judge Breyer said the lack of quorum meant the Commission could not provide guidance on how to implement the law, creating a “vacuum” in which judges inconsistently decide whether inmates under the measure can secure compassionate release amid the COVID-19 pandemic.

noquorum191016“Some people were granted compassionate release for reasons that other judges found insufficient,” he said. “There was no standard. That’s a problem when you try to implement a policy on a nationwide basis.” The Commission’s outdated Guideline 1B1.13, ignored by most circuits but used as a bludgeon by others, was perhaps the primary mischief-maker, but with no quorum, the U.S.S.C. was powerless to fix things.

Judge Breyer said that was aware that nominees are currently being vetted. The White House had no immediate comment.

Ohio State University law professor Doug Berman has been beating the drums in his Sentencing Law and Policy blog to revitalize the USSC for several years. So far, no one – including the “criminal justice reform” President Biden – has listened.

Reuters, U.S. sentencing panel’s last member Breyer urges Biden to revive commission (November 11, 2021)

Sentencing Law and Policy, Should I give up hoping Prez Biden will soon make long-needed nominations to US Sentencing Commission? (October 24, 2021)

– Thomas L. Root

POTUS Pot Pardons Possible, CRS Says – Update for November 9, 2021

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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.

COULD BIDEN USE BLANKET CLEMENCY ON POT OFFENDERS?

A Congressional Research Service report issued last week concluded that if President Joe Biden’s easiest path to fulfilling his goal of getting the federal government out of marijuana regulation business is to use his clemency power.

marijuana160818While the study concluded that Biden could not lawfully deschedule marijuana as a controlled substance, it nevertheless said the President has substantial control over how the law is enforced and may use his clemency authority at any time “after an offense is committed: before the pardon recipient is charged with a crime, after a charge but prior to conviction, or following conviction. The power is not limited to pardons for individual offenders: the President may also issue a general amnesty to a class of people.”

In addition, the Report notes, “the President could direct the Department of Justice to exercise its discretion not to prosecute some or all marijuana-related offenses. Although DOJ generally enjoys significant independence, particularly with respect to its handling of specific cases, the President has the authority to direct DOJ as part of his constitutional duty to ‘take Care that the Laws be faithfully executed’.”

The CRS is Congress’s public policy research institute, working primarily for members of Congress and their committees and staff on a nonpartisan basis.

Meanwhile, an article in Inquest last week observed that “there is deeply rooted legal precedent for presidents to use their authority to grant clemency to large classes of people. Presidents have deployed this authority to advance the public welfare, whether following a war or in response to unjust punishments, or simply to help heal a nation torn by crisis… Broad clemency has been issued by presidents George Washington, John Adams, James Madison, Abraham Lincoln, Theodore and Franklin Delano Roosevelt, Harry Truman, Lyndon B. Johnson, Gerald Ford, and Jimmy Carter.”

A lot of people are hoping to see this on the news...
A lot of people are hoping to see this on the news…

Noting that “the federal system… is the single largest incarcerator in the nation,” the article argued “ President Biden can lead by example, embracing categorical clemency as a tool to mitigate the system’s structural injustices… The president can act by issuing categorical clemency through a proclamation to a class of people based on two categories of eligibility: Personal characteristics or membership in a certain group, or shared circumstances. Such a proclamation should contain a presumption that all people who fit the criteria announced by the president will have their sentences commuted unless the DOJ can prove an articulable and current threat of violent harm.”

Of course, all of the foregoing supposes the President will use his clemency power at all. The Administration has thus far said not to expect pardons or commutations prior to late next year.

Congressional Research Service, Does the President Have the Power to Legalize Marijuana? (November 4, 2021)

Inquest, Mass Clemency (November 2, 2021)

– Thomas L. Root

You Know, Joe, You Could Be Doing A Lot More… – Update for October 28, 2021

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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.

WHO YOU GONNA BELIEVE, JOE BIDEN OR YOUR OWN EYES?

whoyabelieve201214President Joe Biden’s Administration has said all the right things about criminal justice reform, making its inaction or, worse, contrary actions on significant initiatives in Congress (or even in the President’s own Dept. of Justice) frustrating and baffling. So do we believe what we hear or what we see?

But then, the guy so far can’t get his signature infrastructure bill through his own party’s caucus. Maybe I am expecting too much from the septuagenarian chief executive.

Still, what Biden himself could be doing without Congress is addressing the 4,000 inmates on CARES Act home confinement. Those people, according to both Trump’s and Biden’s Dept of Justice, will have to return to prison when the national pandemic emergency ends, which could be as soon as early next year. Recently, 28 House Democrats became the latest to urge Biden to “immediately commute the sentences” of the CARES Act home confinees. The lawmakers also urged the creation of an independent board to review a massive backlog of more than 15,000 petitions seeking clemency.

“Nearly all of those released have thrived since returning home by reconnecting with their families and communities, and by engaging actively in civic life,” David Trone (D-MD) and his colleagues wrote to the president. “Mr. President, with a stroke of your pen you could remove the threat of reincarceration that looms over thousands of people who have already demonstrated their commitment to being productive members of their communities.”

Last week, Kara Gotsch, deputy director at the Sentencing Project, a Washington-based nonprofit focused on injustices in the criminal justice system, said the DOJ’s opinion is “devastating” for those who are staying at home and now face the possibility of being sent back to federal prison. “It is really a shame that the White House and DOJ appear to be standing by that memo issued by the Trump administration,” she said.

The Capital News Service reported Gotsch has been in communication with the Biden administration, asking for grants of clemency for everybody who’s been serving sentences in home confinement, but the White House is considering granting it to only some.

“I think that’s a step in the right direction, but there’s no reason why anyone who has proven themselves to be successful on the home confinement program should be sent back,” she added.

warondrugs211028If the Administration is so concerned about racial disparity, it might urge the Senate to take up the EQUAL Act (S.79). According to the Sentencing Commission, no class of drug is as racially skewed as crack: 79% of sentenced crack offenders in 2009 were black, versus 10% white and 10% Hispanic. Combined with a 115-month average imprisonment for crack offenses versus 87 months for powder offenses, this makes for more African-Americans spending more time in the prison system.

Instead, Biden is pushing a proposal that would enhance sentences for certain synthetic opioids related to fentanyl. A coalition of nearly 100 civil rights and criminal justice reform groups last week warned that the plan will exacerbate racial disparities.

“Since the inception of the war on drugs, African Americans and Latino people have borne the brunt of enforcement-first approaches,” Sakira Cook of the Leadership Conference on Civil and Human Rights, said. She argued that about 70% of defendants charged with fentanyl-related crimes have been minorities.

The Biden Administration defends the initiative as needed to stop the overdose epidemic.

Last week Kristen Clarke, the DOJ’s civil rights chief, highlighted the racial disparities in state juvenile detention systems. “Nationally, black children are over four times more likely to be incarcerated than white children,” Clarke said. “And the disparity is even greater in Texas, where Black children are over five times more likely to be incarcerated.”

Apparently, racial disparities are only important when the states cause them.

NPR, A proposed Biden drug policy could widen racial disparities, civil rights groups warn (October 20, 2021)

Drug Policy Alliance, Letter to Congress (October 22, 2021)

CNN, ‘Big, big shifts’: How Biden’s civil rights pros have reoriented the Justice Department (October 20, 2021)

Southern Maryland Chronicle, Democrats in Congress press Biden to extend COVID-related prisoner releases (October 19, 2021)

– Thomas L. Root

Criminal Justice Reform: Stalled but Not Forgotten – Update for October 22, 2021

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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.

[Note: This story was corrected on October 25, 2021, to indicate Mark Holden is no longer Koch Industries’ senior vice president and general counsel, and to note that the Koch brother active in criminal justice reform is Charles. His late brother, David, was also a supporter of the effort]

SO WHERE ARE ALL THOSE NEW LAWS?

justicereform161128With the election of President Biden and the accession of Democrats to control of Congress, some predicted the dawning of a new era of criminal justice reform. Now, with this Congress almost halfway through its two-year term and predictions of loss of Democratic control of at least one house of Congress, people what, if anything, will change.

Michael Correia, executive director of the National Cannabis Industry Association, told the Business Insurance Cannabis Conference last Wednesday that with “frenzied negotiations” now focused on the immediate crises of the debt ceiling and multi-trillion-dollar infrastructure legislation, legislators’ ability to address the SAFE Banking Act and the Marijuana Opportunity Reinvestment and Expungement (“MORE”) Act “is diminished simply due to time constraints.”

Still, he noted that the MORE Act, which removes marijuana from the list of controlled substances and eliminates criminal penalties for an individual who manufactures, distributes, or possesses marijuana, has passed the House.

Next year, panelists agreed, the 2022 mid-term elections will take center stage on the U.S. political scene, “potentially continuing some of the challenges of pushing cannabis higher on the legislative agenda.”

Meanwhile, while the EQUAL Act, which equalizes penalties for powder and crack cocaine, passed the House on September 28, by a vote of 361-66. But will it make it through the Senate, where negotiations on the recent George Floyd Justice reform bill – which was to make police more accountable – collapsed? Some Washington lobbyists concede it “faces an uphill battle.”

crackpowder160606Former Koch Industries Senior Vice President Mark Holden, who  spearheaded the efforts of Charles and the late David Koch  efforts on criminal justice reform, wrote last week that the EQUAL Act, by Senators Thom Tillis (R-NC) and Rob Portman (R-OH) in the Senate, and Reps. Kelly Armstrong (R-ND) and Don Bacon (R-NE) in the House, and has more than 50 bipartisan co-sponsors. He argued that supporting EQUAL Act and the First Step Implementation Act is a conservative imperative: “We must continue to establish ourselves as leaders in criminal justice reform. It is a proven political winner, judging from President Trump`s expanded GOP coalition, especially black voters, who cited his support for criminal justice reform as a reason for their vote. It is a proper platform to assert conservative principles.”

At the same time, some liberals are declaring criminal justice reform dead, and blaming feckless Democrats in Congress. “Bipartisan discussions around criminal justice reform, which were already dying of neglect after months of inaction, finally collapsed last week after Republicans refused to support Democrat-proposed measures to increase police accountability,” the Daily Beast reported. “Equally to blame is the amateurish way Democrats have allowed the GOP to drive messaging around criminal justice reform in what amounts to Democratic lawmakers scaring themselves with their own shadows…Leadership, including Biden, began to visibly back away from the criminal justice reformers who make up a big chunk of the party’s activist base. That was cowardly at the time. Now that the GOP’s arguments have been shown to be nonsense, continued Democratic silence is indefensible.”

mandatory170612Earlier this week, the Brennen Center for Justice provided a stark illustration of the disconnect between what the Biden Administration says and what it does:

President Biden and his attorney general have denounced mandatory minimums, as did former Attorney General Eric Holder. Even though federal prosecutors — all of whom are subject to supervision by the Department of Justice — have long been the primary proponents of mandatory minimums, Attorney General Merrick Garland affirmed this position during his confirmation hearings… However, despite Garland’s testimony, his Department of Justice has given no sign that it will stop pursuing mandatory minimums. In fact, earlier this year, Garland reinstated a 2010 Holder policy that incorporated a long-standing directive to federal prosecutors: “Where two crimes have the same statutory maximum and the same guideline range, but only one contains a mandatory minimum penalty, the one with the mandatory minimum” should be charged. To make matters worse, Garland chose not to reinstate a 2013 Holder policy that both directed prosecutors to decline to charge a mandatory minimum in “low-level, non-violent drug offenses” and explicitly acknowledged that such sentences “do not promote public safety, deterrence, and rehabilitation.”

And these are the people spearheading change? Good luck with that…

Business Insurance, Cannabis legislation progress slows (October 13, 2021)

Miami Times, Fairness in cocaine sentencing up to US Senate (October 12, 2021)

Newnan Times-Herald, Cracking the Code on Justice Reform (October 11, 2021)

Fox News, Trump made conservatives criminal justice reform leaders. Here’s how to keep it that way (October 10, 2021)

Daily Beast, Why Dems Clammed Up About Reforming a Racist Justice System (October 13, 2021)

Brennen Center, End Mandatory Minimums (October 18, 2021)

– Thomas L. Root

Clemency Should Be ‘Easy Lift’ For Biden, Some Say – Update for October 1, 2021

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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 CARES ACT CLEMENCY CALLED INADEQUATE

We know a little more about the Biden Administration’s plan to solicit commutation applications from some CARES Act prisoners on home confinement, and as more is known, the criticism is mounting.

clemencypitch180716A few weeks ago, the Department of Justice started sending out commutation applications to about 1,000 people (about one out of four those on CARES Act home confinement). Biden is targeting people who have been convicted of a drug offense and have four years or less remaining on their sentences, directing them to apply to DOJ’s Office of the Pardon Attorney.

Last week, The New Republic observed that “Biden is wedded to an inefficient process that’s created a backlog of close to 16,000 petitions. The administration is going out of its way to frame its approach as the opposite of Trump’s chaotic one, which bypassed the Justice Department and freed people seemingly based on the president’s whims.” The New York Times reported last spring that Biden intends to “rely on the rigorous application vetting process,” as opposed to Trump’s approach, “empowering friends, associates and lobbyists to use their connections to the president, his family and his team to push favored requests to the front of the line…”

clemencybacklog190904

But the need to rely on the DOJ pardon system doesn’t sit well with some. Last week, Amy Povah, founder of the Can-Do Clemency Project, told Forbes, “President Biden has been handed an easy political gift. There are 4,000 inmates functioning in society, obeying the laws, bonding with family and held accountable for their past actions. There is no better group vetted to be given clemency than this group of CARES Act inmates… If those at home under CARES Act don’t all qualify to stay there, I’m concerned that we’re dealing with an overly conservative mindset, not consistent with the will of those who voted for President Biden.”

“This should be an easy lift for the Biden administration,” law professor Mark Osler, a former Assistant U.S. Attorney, told The New Republic. “They were handed a carefully vetted group of people who even Attorney General Barr thought should be out in society.”

Osler said the system Biden wants to rely on doesn’t work. “The fact that their commitment to a broken process is going to undermine this is really disappointing,” Osler told TNR. He has long argued that clemency cases should be taken away from DOJ. Before a case makes it to the President, Osler said, “the first thing the pardon attorney’s staff do is seek out the opinion of the local prosecutor and then give that opinion substantial weight. What do you think is going to happen?”

clemency170206No one is saying whether special considerations will be applied to CARES Act home confinees, allowing them to skip DOJ Pardon Attorney review and that office’s embarrassing backlog of cases. FAMM president Kevin Ring complained last week that outside of what they’ve seen in the media, no one knows what Biden plans. “It’s a crazy lack of transparency,” Ring said. “Friday afternoon, there’s a phone call to BOP halfway houses saying, this person should fill out a clemency petition in the next couple of days. Who? Why? What [are] the criteria?”

Unsurprisingly, the pressure remain high for Biden to do more. A week ago, five members of the Maryland congressional delegation wrote to Attorney General Merrick Garland and BOP Director Michael Carvajal, asking for reconsideration of the Trump-era legal opinion (which the Biden DOJ has agreed with) that CARES Act people have to return to prison after the COVID-19 emergency passes. And last Friday, three national law enforcement organizations – the Law Enforcement Leaders to Reduce Crime & Incarceration, Law Enforcement Action Partnership, and Fair and Just Prosecution — wrote to the President to urge him “to use your clemency power to ensure that all people successfully placed on home confinement under the CARES Act do not return to full custody.”

While all of the attention seems to be on CARES Act people, any focus on a re-do of the DOJ pardon system will ultimately benefit prisoners whether still in prison or at home.

Forbes, Biden Considering Options To Avoid Returning Federal Inmates To Prison Post Covid-19 (September 19, 2021)

The New Republic, Biden’s Conservative Vision on Clemency (September  21, 2021)

Maryland Congressional Delegation, Letter to Attorney General (September 17, 2021)

Law Enforcement Action Partnership, Letter to President Biden (September 24, 2021)

– Thomas L. Root

Clemency Tips – Update for September 23, 2021

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YOU’RE STILL LOCKED UP – SHOULD YOU FILE FOR CLEMENCY?

writing160425On Monday, I wrote about the Biden clemency initiative. And I have gotten questions about it, principally this one: What should you do if you’re not in the cohort of 1,000 people on CARES Act home confinement that Joe purportedly has asked to submit a clemency request?

Write one anyway. Like the lottery people say, you can’t win if you don’t buy a ticket. The commutation forms and instructions are available online. You probably should get your application in the hopper anyway, doing your best to show that you’re non-violent, show rehabilitation during your incarceration, and explain why your situation is similar to the 1,000 prisoners invited to file or otherwise praiseworthy.

Some pointers:

A commutation petition is not the time to say this...
A commutation petition is not the time to say this…

(1) No one cares about your innocence: Explaining that you’re actually innocent or that you were convicted by bad lawyering, corrupt courts, or cheating prosecutors is a bad idea. No one in the Administration wants to hear that, even if it happens to be so. The commutation process wants to hear about your remorse and rehabilitation, not about how you may have been done wrong. Clemency is an act of executive grace, completely discretionary and utterly unreviewable. Imagine that you have a gun with only one bullet. This shot absolutely has to count. Whining about your judge or lawyer fires your one bullet right into your foot.

(2) Truth counts:  Maybe the “gun with one bullet” analogy isn’t such a good one. You want to demonstrate that Gandhi has nothing on you when it comes to non-violence, but don’t sugar-coat things. If you were a hot-blooded young gun in your past, admit that and explain how you’ve aged out of it, found a spiritual path, whatever. But be truthful about your history. Glossing over prior conduct figuring that no one in Washington will examine your past in too much detail is not a winning strategy. Betting on the other side being lazy or incompetent is no plan.

(3) Reach for the possible, not the ideal. You want a pardon. Of course you do. Everyone would love to have his or her federal crime wiped off the books. But, if history is a guide, pardons are for celebrities – political or otherwise – or, if you’re a little guy, for people with decades-old offenses and a history since conviction that should make them Time’s Person of the Year. You want a pardon, sure. But that ain’t gonna happen. File for a commutation, which does not forgive your crime, but says that you’ve been punished enough and should have the rest of your sentence commuted.

So how should you write your petition? Attorney Brandon Sample has posted tips on writing clemency petitions at clemency.com. (Brandon’s site contains a lot of good information, and invites you to contact him – which is not to say that hiring Brandon or another attorney who knows the process is a bad idea: it’s a very good idea, especially if you have a decent shot at getting some traction from the Biden initiative).  

Speaking of lawyers, Margaret Colgate Love – who was U.S. Pardon Attorney during the George H.W. Bush and Bill Clinton administrations – has written a lot on clemency and is available for hire as well.

There are other effective legal advocates out there, too. I have just mentioned two whose work for which I have respect.

obtaining-clemencyWhile not attorneys for hire, the people at Amy Povah’s Can-Do Foundation – focused on clemency for non-violent drug offenders –have posted some tips on applying for clemency or (and this is important) getting friends or family to write in support. Some of Can-Do’s information is a little dated, having been written during the Wild West days of Trump clemency, but there are nuggets of good advice on the website.

Finally, while its focus is slightly different (or perhaps larger than just clemency), Attorney Brittany Barnett’s Buried Alive project has worked on some high-profile commutation as part of its work on drug life-without-parole sentences. Alice Marie Johnson, one of President Trump’s most deserving commutations (and later, pardons), was represented by Barnett.

Dept. of Justice Pardon Attorney website

Brandon Sample, Clemency Resources

Margaret Colgate Love, Clemency Resources

Can-Do Foundation, Clemency Resources

Buried Alive Project

– Thomas L. Root

Biden Proposes Clemency Lite – Update for September 20, 2021

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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.

ADMINISTRATION TROTS OUT COMMUTATION PLAN THAT IS OPAQUE AND TINY

clemencypitch180716President Biden’s administration last week announced something that looks like a clemency plan, only much smaller. Last Monday, White House spokesman Andrew Bates said the Administration “will start the clemency process with a review of non-violent drug offenders on CARES Act home confinement with four years or less to serve.”

Those who have been invited to apply fall into a specific category: drug offenders released to CARES Act home confinement who have four years or less on their sentences. Neither the White House nor the Dept of Justice would say how many people have been asked to submit commutation applications or whether it would be expanding the universe of prisoners who would be considered.

However, according to news reports, about 1,000 home confinees – about 25% of the people on CARES Act home confinement – are included in the batch the White House wants to review. Weldon Angelos, who was pardoned for a marijuana conviction by President Donald Trump last year and works with the current administration on criminal justice reform, told Marijuana Moment that about 1,000 people were asked to report to their designated halfway houses to fill out the clemency form in recent days.

Udi Ofer, the ACLU’s deputy national political director, said he was troubled by the possibility that the White House was cleaving off CARES Act recipients into those deserving commutation and those who didn’t, arguing that the Bureau of Prisons, in originally releasing inmates under the CARES Act, had already made a determination between those who posed a threat of violence and those who didn’t.

clemency170206“We are worried that the White House is viewing this issue too narrowly and unnecessarily restricting the category of people being asked to apply for clemency,” Ofer told Politico.

Others disagree that then BOP’s decisions on home confinement – which have largely been delegated to 122-odd executive officers at BOP facilities – are a consistent or reliable indicator of who should get clemency. “It’s not clear how the Bureau of Prisons chose people for this home confinement program, which raises the question of whether it’s fair to give a special benefit to these folks not available to those who have filed clemency petitions sometimes years ago and have been patiently waiting,” said former DOJ Pardon Attorney Margaret Love.

Biden’s limited clemency plan appears not to be enough for some lawmakers. Last Friday, 28 House Democrats called on Biden to commute the sentences of all 4,000 CARES Act home confinees, as well to establish a review board for pending clemency petitions.

“We urge you to use your authority as President to immediately commute the sentences of the 4,000 people who, under the [CARES Act], are currently on home confinement and at risk of being sent back to federal prison, and further, to create an independent clemency board to review the more than 15,000 pending clemency petitions,” the letter, spearheaded by Reps. Cori Bush (Missouri), Bonnie Watson Coleman (New Jersey), Pramila Jayapal (Washington), and David Trone (Maryland), said.

The President had announced in May that he would tackle clemency in 2022.

noplacelikehome200518A BOP spokesperson told The Hill last week that the agency is focused on the “expanded criteria for home confinement and taking steps to ensure individualized review of more inmates who might be transferred… The BOP and the [Department of Health and Human Services] continue to explore all potential authorities that could be exercised after the end of the pandemic to help address this issue.”

Politico, Biden starts clemency process for inmates released due to Covid conditions (September 13, 2021)

CNN, Administration to start clemency process for some federal inmates on home confinement due to Covid conditions (September 13, 2021)

Marijuana Moment, Biden Administration Asks Prisoners with Certain Federal Drug Convictions to Apply for Clemency (September 13, 2021)

The Hill, Democrats urge Biden to commute sentences of 4K people on home confinement (September 17, 2021)

– Thomas L. Root

Criminal Justice Reform Wonders Where the President Is – Update for August 5, 2021

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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.

I PROMISE…

promise210805Every week, I get dozens of emails asking about new criminal justice laws that have passed (zero) and the status of the EQUAL Act or First Step Implementation Act or the Safer Detention Act or any of a dozen really good criminal reform bills pending before Congress.

What, you think I’m not going to cover any progress or, better yet, the passage of the bills in this blog? I promise – if there’s significant progress on any criminal justice bill (or even insignificant progress), I will cover it. Right away.

I mention this because more and more articles are being written about President Biden as a disappointment on criminal justice reform. Last week, Law 360 said, “One of President Joe Biden’s most powerful tools for advancing criminal justice reform is his voice and yet, despite his campaign promises, he has been mostly silent on the issue while in office, frustrating criminal justice reform advocates.”

The criminal justice reform people “would have liked Biden to do more than just talk about criminal justice reform in his first six months in office, but they are even more frustrated by the fact that he isn’t loudly advocating for reform and isn’t letting people know when he will act on his reform promises.”

biden210805Andrea James, a former criminal defense attorney, said she attended a White House virtual discussion in May about reducing mass incarceration, shortly after Biden’s first 100 days in office. James has been fighting for clemencies through her organization, the National Council for Incarcerated and Formerly Incarcerated Women and Girls, a group that sought clemency for 100 women within Biden’s first 100 days.

Biden promised during his presidential campaign that he would use his presidential clemency power to secure the release of individuals facing unduly long sentences for certain nonviolent and drug offenses. “The president can do this with the stroke of a pen and there is absolutely no reason to wait,” James said.

Meanwhile, AP reported last Thursday that while Biden took quick action after his inauguration to shift federal inmates out of privately run prisons, promising it was “just the beginning of my administration’s plan to address systemic problems in our criminal justice system,” the President is overlooking a prime — and, in some ways, easier — target for improving the conditions of incarcerated people: the federal Bureau of Prisons.

The administration has full power to control staffing, transparency, health care, most of all, BOP leadership, the article says. BOP Director Michael Carvajal, “a Trump holdover… who has been in charge as the coronavirus raged behind bars, infecting more than 43,000 federal inmates, still runs the agency. Administration officials have been mulling whether to replace him, but no decision has been made, according to officials who spoke to The Associated Press.

First Step Act programs to reduce recidivism are hampered because there are not enough workers to facilitate them. Nearly one-third of federal correctional officer jobs in the United States are vacant, forcing prisons to use cooks, teachers, nurses and other workers to guard inmates. “There need to be enough people working in a prison to keep people housed in a prison safe. And they must be able to get access to the programs that should allow their release,” said Maria Morris of the American Civil Liberties Union’s National Prison Project.

A key part of Biden’s agenda racial justice, and nowhere is racial equity a more pressing issue than inside prison, where the inmate population is “still disproportionately filled with Black people.”

Advocates say that while Biden “has talked a good game, his actions tell a different story, particularly because the Justice Department has refused to reverse a legal opinion requiring inmates released during the pandemic to return to prison.”

return161227“There isn’t an appetite in the administration to act,” said Inimai Chettiar of the Justice Action Network.

The Hill reported last week that the White House continues to say nothing about whether Biden will do something to permit people on CARES Act home confinement to stay on home confinement. The Administration has been under pressure for months to revoke the Trump era legal memo, which concludes that CARES Act people have to go back to prison when the COVID emergency ends.

Some have proposed Biden use clemency to immediately end the sentences for those who have been living outside prison walls or push for the expanded use of compassionate release for the inmates.

“With a new rise in COVID-19 cases across the country, it’s unlikely the pandemic will be declared over any time soon,” The Hill said. “But as it currently stands, thousands will have to return to prison when it ends, and the Biden administration has not offered any public guidance on whether that could change.”

Law 360, Advocates Frustrated By Biden’s Silence On Justice Reform (July 25, 2021) 

Associated Press, Is Biden overlooking Bureau of Prisons as reform target? (July 29, 2021)

The Hill, Inmates grapple with uncertainty over Biden prison plan (July 30, 2021)

– Thomas L. Root