Tag Archives: clemency

Biden Commutes Sentences of 31 People Who Are Already At Home – Update for May 1, 2023

Leave a comment

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

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

Leave a comment

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

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

Leave a comment

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

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

Leave a comment

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

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

No Clemency from Santa Biden This Year – Update for December 29, 2022

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
LISAStatHeader2small-newyear

CHRISTMAS CLEMENCIES ARE A BUST

Congress is not the only underperforming branch of government this year. So far this month, President Biden granted traditional year-end clemencies to the following:

_________________
_________________
_________________
_________________

clemency170206That’s right… to no one.

Last week, sentencing law experts (and law professors) Mark Osler and Rachel Barkow took Biden to task for using the tool of clemency for symbolism rather than substance, while ignoring clemency’s official process.” Saying that he has acted like former President Trump, Osler and Barkow – writing in the New York Daily News – complained that while 17,000 petitions (it’s closer to 18,000) have piled up — a “historic backlog — and many petitioners have been waiting for answers for five years or more.”

Osler and Barkow wrote that “like Trump, Biden has simply ignored those thousands of people waiting for consideration of their heartfelt pleas for clemency; in fact, he has failed to deny a single petition by presidential action even as the pile has grown into a tower. While many clemency petitions are worthy, many others are obviously not, and it shouldn’t be hard to say “no” to the weakest petitions. Like Trump before him, Biden seems either frozen in inaction or just doesn’t care.”

Biden’s commutation so far of 82 people for nonviolent offenses (and the vague pardons to unnamed marijuana possessors) “are more about signaling and politics than helping real people,” Barkow and Osler said.

clemency220418For all of the Biden Administration’s hand-wringing over retroactively remedying the crack-powder sentencing disparity that was embraced by the failed EQUAL Act (S.79), MSNBC reported last week, “Biden, who supported the proposed legislation, could remedy these past injustices with clemency, but he hasn’t done so, despite issuing pardons ahead of the midterm elections for cannabis possession.”

NY Daily News, Biden’s cowardice on clemency (December 20, 2022)

MSNBC, Racist war on drugs is the real winner of Congress’s massive spending bill (December 23, 2022)

– Thomas L. Root

LISAStatHeader2small-newyear

Pardoning Turkeys, Not People – Update for December 1, 2022

Leave a comment

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

BIDEN TURKEY PARDONS DRAW CRITICISM

President Joe Biden continued a 75-year tradition last week, pardoning a pair of North Carolina turkeys named Chocolate and Chip after his favorite flavor of ice cream.

turkeypardon221201“The votes are in, they’ve been counted and verified,” Biden said, granting the pardons. “There’s no ballot stuffing. There’s no fowl play.”

Vote counting apparently did not include the over 18,000 people whose applications for pardons or commutations are piled up at the Dept. of Justice Pardon Attorney’s office.

Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog, referred to the ceremony as “the annual turkey pardon silliness at the White House.”

clemencybacklog190904Reason magazine was not much kinder to Biden’s clemency for those convicted of simple marijuana possession announced in October. The mass pardon was “an example of all hat and no cattle,” Reason said. “‘I’m keeping my promise that no one should be in jail for merely using or possessing marijuana,’ [Biden] said in October. ‘None…’ But not a single person was released from custody by the Bureau of Prisons due to Biden’s proclamation… The presidential pardon power can and should be used more often. Not just for turkeys, but for the thousands of people serving decades due to draconian drug laws that Biden supported for most of his political career.”

Associated Press, Biden opens holidays, pardons turkeys Chocolate and Chip (November 21, 2022)

Sentencing Law and Policy, Does Prez Biden’s clemency record in 2022 deserve some praise on the day of turkey pardons? (November 21, 2022)

Reason, Pardon People, Not Turkeys (November 23, 2022)

– Thomas L. Root

Biden Marijuana Clemency Brings Forth a Mouse – Update for October 11, 2022

Leave a comment

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 PENURIOUS POT PARDONS

mountainmouse221011President Biden last Thursday pardoned thousands of people convicted of simple possession of marijuana (a 21 USC § 844 offense) and said his administration would review whether marijuana should still be a Schedule I drug like heroin and LSD.

The pardons will clear everyone convicted on federal charges of simple possession in the last thirty years. They will help remove obstacles for people trying to get a job, find housing, apply to college or get federal benefits. Announced a month before the midterm elections, the pardons could help fire up the Democratic supporters.

But they won’t free a single federal inmate.

Officials said full data was not available but noted that about 6,500 people were convicted of simple possession between 1992 and 2021. Only 92 people were sentenced on federal marijuana possession charges in 2017, out of nearly 20,000 drug convictions, according to the U.S. Sentencing Commission. And not a one of them is currently in prison.

You may recall a Biden spokeswoman said in May 2021 that the Administration anticipated starting granting clemency under a new, improved process just before the midterm elections. There’s no sign of a better commutation process anywhere, and as for the clemency list, Aesop would have said, “The mountain has labored and brought forth a mouse.”

Administration officials said there are no people now serving time in federal prisons solely for marijuana possession. The pardon does not cover convictions for possession of other drugs, or for 21 USC § 841 or § 960 charges relating to growing or possessing marijuana with an intent to distribute. Biden also is not pardoning non-citizens who were in the U.S. without legal status at the time of their arrest.

Biden stopped short of calling for the complete decriminalization of marijuana, which is something that Congress would have to do (and could do if the Senate passes the MORE Act). In fact, he largely seems skeptical of marijuana, despite his announcement. He warned that “[e]ven as federal and local regulations of marijuana change, important limitations on trafficking, marketing, and under-age sales should stay in place.”

marijuanahell190918However, he directed his Administration to review how marijuana is legally categorized, which drives the level of sentence. “The federal government currently classifies marijuana as a Schedule 1 substance,” he said, “the same as heroin and LSD and more serious than fentanyl. It makes no sense.”

The Dept of Justice stated, “In coming days, the Office of the Pardon Attorney will begin implementing a process to provide impacted individuals with certificates of pardon. Also, in accordance with the President’s directive, Justice Department officials will work with our colleagues at the Department of Health and Human Services as they launch a scientific review of how marijuana is scheduled under federal law.”

The Washington Post said, “The Biden administration review of marijuana’s classification level, to be led by Health and Human Services Secretary Xavier Becerra and Attorney General Merrick Garland, could address long-standing questions over whether the possession of marijuana should ultimately be decriminalized at the federal level.”

Vox reported that Nishant Reddy, a former advisor to Sen. Cory Booker (D-NJ) on cannabis policy, said, “We’re just a few weeks away from midterm elections, so I do think there’s a little bit of strategic political play with this… That being said, it’s an exciting step in the right direction for those who are facing the negative consequences of unfair policing regarding cannabis.”

Attorney David Holland, executive director of Empire State NORML, sees it as Biden working toward cementing his progressive legacy rather than attempting to gain voter support.

“Biden doesn’t stand to gain anything by it, per se. This is only the midterm; he’s got another couple years to go. I think he’s trying to align himself with progressive politics that undo at least some of the harms of the drug war, and to set up a platform for two years from now that shows him to be a leader in causes relating to equity, justice, economic development, and so on.”

marijuana-dc211104Holland believes the more meaningful part of Biden’s announcement is the review and possible change in the federal status of cannabis as a controlled substance. “He’s setting the stage for future action,” says Holland. “There is definitely a paradigm shift coming over the next two years going into the 2024 election.”

Forbes last Friday quoted Andrew Freedman, executive director of the nonprofit Coalition for Cannabis Policy, Education and Regulation, as saying, “This could lead to a full descheduling, but I highly doubt that’s where it would end up. It’s more likely that the process ends up reclassifying marijuana as Schedule II, along with fentanyl, cocaine and methamphetamine, or perhaps Schedule III. If Congress decides to act, it could remove cannabis from the Controlled Substances Act and regulate it like alcohol and tobacco.”

“It’s a good sign that the Biden Administration is acknowledging that the current status quo is nonsensical,” says Freedman. “But I don’t think they’ve laid out a complete vision of where we go from here. There are current state markets that are operating; how do we catch up to that?”

While on the campaign trail, Biden said that marijuana should be decriminalized and that records should be expunged. Earlier this year, Biden granted nine people with federal marijuana offenses clemency.

Maritza Perez, director of the Drug Policy Alliance’s Office of Federal Affairs, said there should be fuller relief for people, including resentencing, expungement and removing immigration consequences. “It’s a step in the right direction, but definitely does not do enough to really help repair the harms of the drug war,” she said.

clemency170206Some federal inmates were harsher: “Federal marijuana inmates say they’re shocked that President Biden’s mass-pardon for pot offenders doesn’t actually help them — telling The Post that the historic clemency amounts to a “rancid” pre-midterm elections stunt and a “slap in the face” that fails to do what Biden promised as a candidate.

There are about 2,700 federal pot inmates, according to a recent congressional estimate, but none will get out because Biden’s pardon applies only to the roughly 6,500 people convicted federally of simple possession, of whom none are in prison, and to unknown thousands more convicted under local DC law.

One inmate told the Post that inmates at FMC Fort Worth “started cheering for us in here for weed” until “the initial glee turned into yet another let-down.”

“Biden fed us rancid hamburger and the media is celebrating as if he served up filet mignon,” an FCI Fort Dix inmate, whose 16-1/2 year marijuana conspiracy sentence ends in 2031, told the Post.

Amy Povah, founder of the CAN-DO Foundation, which advocates for clemency for non-violent offenders, told The Post, “I’m elated for [Biden’s] pardon recipients,” but “I can’t wait for those who are currently incarcerated and have survived a historic pandemic under tortuous conditions to get the relief they were promised, as well.”

mario170628Michael Pelletier, a 66-year-old wheelchair-bound paraplegic who got clemency from Trump, told The Post, “It breaks my heart knowing there are still people serving life without parole for cannabis. I hope Biden will free all pot prisoners because I personally know several people who voted for him based on that campaign promise alone.”

New York Times, Biden Pardons Thousands Convicted of Marijuana Possession Under Federal Law (October 6, 2022)

Associated Press, Biden pardons thousands for ‘simple possession’ of marijuana (October 7, 2022)

LISA, Biden To Ask Fox To Advise On Emptying Henhouse (May 26, 2021)

Washington Post, Your questions answered about Biden’s marijuana pardon announcement (October 7, 2022)\

Dept of Justice, Justice Department Statement on President’s Announcements Regarding Simple Possession of Marijuana (October 6, 2022)

Vox, The most important part of Biden’s surprise marijuana announcement (October 8, 2022)

USA Today, Many Americans arrested for marijuana won’t find relief under Biden’s pardon plan (October 7, 2022)

Forbes, President Biden Says It’s Time To Change America’s Cannabis Laws (October 7, 2022)

New York Post, ‘Slap in the face’: Pot inmates call Biden mass-pardon ‘rancid’ election ruse (October 7, 2022)

– Thomas L. Root

What Does Oyer Plan To Do About the Backlog? – Update for May 26, 2022

Leave a comment

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

WHAT WILL NEW PARDON ATTORNEY DO WITH CLEMENCY BACKLOG, LEGISLATORS WANT TO KNOW

A bipartisan group of representatives has demanded information from Elizabeth Oyer, the new Pardon Attorney, about her plans for processing the 17,400-strong backlog of clemency petitions pending (some for years).

paperwork171019“The growing backlog of clemency petitions undermines the promise of a fair and just criminal legal system,” Representatives Ayanna Pressley (D-MA), Mary Gay Scanlon (D-PA), David Joyce (R-OH), and Kelly Armstrong (R-ND) wrote in a letter last week to Pardon Attorney Elizabeth Oyer. “Every application represents a person, a family, and a community. And every delayed response represents a miscarriage of justice, a dysfunctional process, and a policy failure in desperate need of repair.”

The letter demanded a full report from Oyer by June 7 that includes “applicant demographic data (including age, race/ethnicity, gender, parental status, state of residence, incarceration status), month and year of application submission, representation by an attorney, type of clemency request, type of relief sought, type of offense(s), and office currently reviewing application.”

Bloomberg, Lawmakers Press DOJ on Backlog of 17,000 Clemency Petitions (May 18, 2022)

Letter to Elizabeth Oyer (May 17, 2022)

– Thomas L. Root

Legislators Tackle Clemency Reform – Update for May 24, 2022

Leave a comment

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

HOUSE SUBCOMMITTEE EXPLORES FIX FOR CLEMENCY MESS

A subcommittee of the House Judiciary Committee last Thursday grappled with the jammed-up federal clemency process, in which an estimated 17,400 petitions await Presidential consideration.

clemencypitch180716The Subcommittee on Crime, Terrorism & Homeland Security heard from a spectrum of witnesses – from a former Mississippi US Attorney who argued the Dept of Justice’s “policies with regard to review of clemency petitions are correct: clemency should only be granted in extraordinary circumstances and exercised rarely” – to clemency experts who deconstructed the convoluted process in academic detail.

In opening remarks, Subcommittee Chair Rep. Sheila Jackson Lee (D-TX) said that Congress should encourage presidents to routinely use clemency powers, tools she called “useful… not just to correct individual injustices but to overcome “misguided policies that led to mass incarceration.”

Rep Ayanna Pressley (D-Mass) urged passage of a bill she is sponsoring – the Fair and Independent Experts in Clemency Act (or “FIX Clemency Act”), H.R. 6234. That measure would replace DOJ’s Office of Pardon Attorney with an independent clemency board, made up of nine people appointed by the President. The Board would send pardon and commutation recommendations directly to the president.

Clemency expert and law professor Mark Osler testified that what was once a relatively simple clemency system has grown “and metastasized until the process came to include seven distinct actors, each with their own interests and biases, acting sequentially. Today, a clemency petition will be considered in turn by the staff of the Pardon Attorney, the Pardon Attorney, the staff of the Deputy Attorney General, the Deputy Attorney General, the staff of the White House Counsel, the White House Counsel, and finally by the President.”

“The absurd inefficiency of seven reviewers seeing a petition only after a predecessor is done — rather than simultaneously as part of a board — is striking,” Osler said. “On top of that, baked into this system is negative decision bias; reviewers know they can get in trouble only for a bad “yes,” which incentivizes ‘no’s.’ It is seven valves, all spring-loaded shut, on the same pipe.”

clemency220418Law professor Rachel Barkow, a clemency expert and former member of the US Sentencing Commission, told the Subcommittee that “there are now more than 18,000 people waiting for a response to their petitions, many of whom have been waiting for years. It is hard to overstate the level of mismanagement responsible for this unconscionable backlog. These people deserve answers to their petitions, yet the administration has done nothing to suggest it has any grasp of the urgency of the situation.”

Barkow said, “The view inside DOJ… is that pardon attorneys should ‘defend the department’s prosecutorial prerogatives” and that “the institution of a genuinely humane clemency policy would be considered an insult to the good work of line prosecutors.” In light of this view, she said, “there is a strong presumption at DOJ that favorable recommendations should be kept to an absolute minimum.”

pardonme190123The grant rate for commutations and pardons across presidencies has been low in recent years compared to the rates for most of the nation’s history. Trump granted 2% of the petitions he received, Obama granted 5%, George W. Bush granted 2%, Clinton granted 6%, George H.W. Bush granted 5%, and Reagan granted 12%. This contrasts with Carter’s grant rate of 21%, Ford’s rate of 27%, and Nixon’s rate of 36%. “Between 1892 and 1930,” Barkow said, “27% of the applications received some grant of clemency.”

House Subcommittee on Crime, Terrorism & Homeland Security, Oversight Hearing on Clemency and the Office of the Pardon Attorney (May 19, 2022)

Statement of Professor Rachel E. Barkow, New York University School of Law, House Judiciary Comm, Subcomm on Crime, Terrorism, and Homeland Security (May 19)

Statement of Professor Mark Osler, University of St. Thomas, House Judiciary Comm, Subcomm on Crime, Terrorism & Homeland Security (May 19, 2022)

UPI, House panel weighs reforms for clemency amid backlog of 17,000 petitions (May 19, 2022)

– Thomas L. Root

EQUAL Act Runs Into Some Competition in Senate – Update for April 29, 2022

Leave a comment

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

BACK TO WORK FOR CONGRESS

Congress is back in session after Easter/Passover/Ramadan break, and the drumbeat continues for the EQUAL Act, even as insurrection against the favored bill brews.

crackpowder160606As noted earlier this week, the DOJ threw a plug in for EQUAL as part of its PATTERN report to Congress. It wasn’t alone. Last week, The Hill editorialized that “April is Second Chance Month and an opportunity to think deeply about the real purpose of incarceration — and of penal systems more broadly. Is the purpose to dehumanize those who transgress? Or is it to protect communities and preserve or restore justice within them?… The EQUAL Act… addresses the sentencing disparity in our federal justice system involving penalties for crack and powder cocaine offenses, which has resulted in unintentional racial disparities and significantly higher federal prison populations. The law was intended to reduce the harm of crack cocaine possession, distribution and consumption. The validity of its original intention may be debated, but it has been proven to have unacceptable consequences.”

Writing in the Washington Examiner, former congressman Doug Collins said, “it’s no surprise that law enforcement is spearheading” the EQUAL Act… Roughly 90% of those serving time for crack offenses at the federal level are black, which means they serve vastly longer prison sentences than those convicted of powder cocaine offenses, even though the substances are chemically similar and equally dangerous. According to the country’s most respected law enforcement leaders, eliminating this disparity would help police officers build trust with communities of color, especially in urban areas where law enforcement finds it difficult to cultivate sources to investigate murders, shootings, and other violent crimes.”

Screwup190212However, proving that nothing in this world is such a slam-dunk that Congress cannot screw it up, the Start Making Adjustments and Require Transparency in Cocaine Sentencing Act (shorthand, “SMART Cocaine Sentencing Act” – an obvious competitor to the EQUAL Act – was introduced in the Senate yesterday. SMART, sponsored by Senators Roger Wicker (Mississippi), Charles Grassley (Iowa), Mike Lee (Utah) and Lindsey Graham (South Carolina), all Republicans – reduces the current 18:1 crack-to-powder ratio to 2.5:1 instead of EQUAL’s 1:1.

The nasty part of SMART is that for people already convicted under 18:1, there would be no retroactivity unless the Attorney General “certified” to the court that the sentence should be reduced. Given the Dept. of Justice’s traditional antipathy to the many prisoners seeking First Step Act Section 404 reductions, this is yet another example of turning the keys to the henhouse over to the fox.

Sen. Grassley explained the thinking behind SMART:

Separate legislation has been introduced in the Senate to completely flatten the differences between sentences for crack cocaine and powder cocaine offenses. This approach does not account for the differences in recidivism rates associated with the two types of cocaine offenses. According to a January 2022 analysis from the U.S. Sentencing Commission (USSC), crack cocaine offenders recidivate at the highest rate of any drug type at 60.8 percent, while powder cocaine offenders recidivate at the lowest rate of any drug type at 43.8 percent. Raising additional public safety concerns, USSC data reveals that crack cocaine offenders were the most likely among all drug offenders to carry deadly weapons during offenses. These statistics show the need for a close look at all available government data before we consider an approach to flatten sentencing for crack and powder cocaine offenses.

The MORE Act, which would decriminalize marijuana, has passed the House of Representatives. Whether it will pass in the US Senate, where all 50 Democrats and at least 10 Republicans would need to support it, is unclear. Maritza Perez, Director of National Affairs at Drug Policy Alliance, told The Grio last week it will be a “hard sell.” As reported, the Senate will be considering its own bill that Perez said focuses on less on decriminalization and more on a regulatory and tax framework for the sale and use of cannabis.

White House press secretary Jen Psaki said a week ago Wednesday that President Biden “remains committed” to honoring his campaign pledge to release “everyone” in federal prison for marijuana, claiming that he believes “no one should be in jail because of drug use.”

marijuanagrow220429Psaki did not provide a timeline. “I don’t have an update here. We are continuing to work with Congress. But what I can say on marijuana is we’ve made some progress on our promises. For instance, the DEA just issued its first licenses to companies to cultivate marijuana for research purposes after years of delay during the prior administration… Additionally, the president’s continuing to review his clemency powers, which is something he also talked about on the campaign trail and he certainly remains committed to taking action on.”

Of course, shortly after this, the President did grant some clemencies, although relatively few to marijuana offenders. More clemencies have been promised, albeit vaguely.

The Hill, Justice for some is no justice at all — we must change our criminal justice system (April 22, 2022)

The Grio, Advocates say legalizing cannabis would restore justice for Blacks, but can Washington get it done? (April 20, 2022)

Washington Examiner, Take the next step on the First Step Act (April 20, 2022)

NY Post, Biden ‘committed’ to freeing inmates with marijuana convictions, Psaki says (April 20, 2022)

S.__ (no number yet), SMART Cocaine Sentencing Act

Sen. Charles Grassley, Senators Introduce Bill To Reduce Crack-Powder Sentencing Disparity, Protect Communities From Criminals Most Likely To Reoffend (April 28, 2022)

– Thomas L. Root