Many things have divided progressive and centrist Democrats, but they are united in the view that prosecutors at the Department of Justice should not be in charge of clemency.
During the Democratic primaries, Amy Klobuchar, Kamala Harris, Pete Buttigieg, Cory Booker, Elizabeth Warren and Bernie Sanders all endorsed a good and simple idea: Take the clemency process out of the Department of Justice and put it in the hands of a bipartisan board to advise the president, ending decades of dysfunction. After Joe Biden won the nomination, this reform was endorsed as part of the Biden-Sanders Unity Plan and the Democratic platform. Under this plan, clemency could be used frequently, impartially, and with principle
Inexplicably, however, the Biden administration seems poised to reject this consensus and 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.
The fundamental problem with having the Justice Department run clemency is that prosecutors aren’t good at it. Under the department’s regulations, the Office of the Pardon Attorney must give “considerable weight” to the opinions of local prosecutors — the very people who sought the sentence in the first place.
These prosecutors typically don’t keep up with the people they prosecuted to learn what they’ve been doing while incarcerated or what their post-prison re-entry plans look like. Their data point is the conviction itself, so their analysis of the case is frozen in time. No matter the intent from on high, it is hard to get around this obstacle.
Vice President Harris, a former prosecutor herself, has warned of “inherent conflicts of interest” in the current process. Justice Department lawyers, she argued during her campaign, should not determine whether people convicted by colleagues in the legal system should have their sentences shortened or commuted.
The Biden administration is ignoring this fundamental truth because it wants a reprise of President Barack Obama’s approach to clemency. It is worth remembering that model yielded only one commutation of a sentence and a handful of pardons during his first term because it relied on the lethargic, biased process embedded within the Justice Department. The Biden administration seems to be focused only on President Obama’s clemency efforts in his final two years in office, but even those efforts had limited success.
Yes, President Obama granted more than 1,900 clemency petitions; 11 percent resulted in pardons and the rest in commutations. Almost all the commutations were for drug offenses. But more telling is that his administration rejected and ignored thousands more that were meritorious. It was effectively a lottery. This was a lost opportunity that granted relief to some but ignored too many.
It is particularly odd to follow this plan considering the different circumstances faced by the new administration. While Mr. Biden faces a giant pile of over 15,000 pending clemency petitions (many from the Obama administration), Mr. Obama inherited only a little over 2,000.
The Biden team seems to think the right “criteria” might produce a different outcome. But focusing on “criteria” rather than process reflects a failure to learn from the Obama-era experience.
Mr. Obama’s clemency initiative, which started in 2014, began with a strict focus on criteria including “no history of violence” or ties to gangs. It didn’t work. A year into the initiative, President Obama had a miserly 0.3 percent grant rate for commutations. By 2016, the number of commutations had grown significantly, but because the administration ignored those criteria. A study by the United States Sentencing Commission later found that only 5.1 percent of the people who received commuted sentences actually met all of the criteria. In other words, the Obama project succeeded, even in a limited way, only once the kind of criteria Mr. Biden wants to embrace were effectively jettisoned.
Even worse is the administration’s stated timetable. 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.
The faulty architecture of clemency has been apparent for decades, with shamefully low grant rates from presidents of both parties. If the administration put in place a competent advisory board to process petitions instead of relying on the Justice Department’s flawed and biased process, it could address the backlog, just as a board addressed the huge backlog of petitions for clemency from draft evaders in the wake of the Vietnam War.
The board should include experts in rehabilitation, re-entry and prison records, including a person who has been incarcerated. It would be able to consult with the Justice Department, but the department would no longer be responsible for the decision itself. This will allow the board to make objective recommendations; then it will be up to the president whether to accept them.
The Biden administration understands the value of expertise and process. Justice is the last place where an exception should be made.
Rachel E. Barkow is a professor at the New York University School of Law and the author of “Prisoners of Politics: Breaking the Cycle of Mass Incarceration.” Mark Osler, a former federal prosecutor, is a professor at the University of St. Thomas School of Law in Minneapolis.
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