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

NEW BLOOD IN THE PARDON OFFICE

It only took him 15 months, but President Joe Biden has taken baby steps on addressing clemency by appointing a new Dept of Justice Pardon Attorney. Elizabeth G. Oyer, the first permanent Pardon Attorney in six years (everyone else was “acting” without official appointment), formerly served as Senior Litigation Counsel to the Office of the Federal Public Defender for Maryland.

Oyer, a Harvard law graduate, has “represented indigent defendants at all stages of proceedings in federal district court [and] handled a wide variety of criminal cases, ranging from complex fraud to drug and gun offenses, as well as violent crimes,” law prof Mark Osler, a national expert in clemency law, said last week on Twitter.

“It means something that Prez Biden has actually filled this slot,” Ohio State University law prof Doug Berman said last week in his Sentencing Law and Policy blog. “It’s also significant – and positive – that he has given a career defender an important job in the Department of Justice.”

Don’t expect miracles, however. Osler warns that the problem of the 18,000-petition backlog “may not have been the Pardon Attorney, but the bureaucracy that takes up the petitions after they are evaluated by the pardon attorney,” referring to review by the Attorney General and White House. There are over 18,000 pending petitions, many of them now years old (including unresolved petitions from the Obama administration). “It’s a mess,” Osler wrote. “We just know what kind of mess, or where the mess is located. The whole thing needs reform.

In last week’s blog, Berman argued again that the federal clemency process should be removed from DOJ, noting the FIX Clemency Act (H.R. 6234), introduced four months ago, that would set up an independent clemency authority to review applications. GovTrack, a website that tracks legislation, gives the bill a 2% chance of passing.

Berman warns that “a full 15 months into his administration, Prez Biden has not granted a single pardon and has not granted a single commutation. With more than 18,000 applications pending, not to mention many low-risk, COVID-vulnerable persons released to [CARES Act] home confinement, it ought not be that hard to find at least a handful of “non-violent and drug” offenders who deserving of clemency… Whomever is in charge of the matters at DOJ, where these is a clemency will there is surely a clemency way. As of now, though, it does not appear that Prez Biden really has much of a clemency will.”

Twitter, Biden Administration has appointed a Pardon Attorney (April 14, 2022)

Sentencing Law and Policy, Justice Department has new Pardon Attorney who is a former public defender … which means …? (April 15, 2022)

DOJ, Meet the Pardon Attorney (April 12, 2022)

H.R. 6234, FIX Clemency Act

– Thomas L. Root