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October 30, 2020

How might the Prez clemency power be wielded next month and next year?

Mark Osler usefully ruminates on the question that serves at the title of this post in this extended new CNN opinion piece headlined "Get ready for a flood of Trump pardons."  I recommend the piece in full (which is much better than the headline likely picked by CNN just to be click bait).  Here is an extended excerpt:

Trump and Biden present very different issues relating to clemency (which includes the power to shorten sentences through a commutation or forgive convictions through pardons).  Trump already has shown his cards: Even taking into consideration the commutations granted last Wednesday to five worthy petitioners, his use of the pardon power has mostly favored friends and Fox News celebrities.  Even his much-celebrated commutation and pardon of Alice Marie Johnson came about only after another reality television star, Kim Kardashian West, intervened.  Biden, meanwhile, is a blank slate.  The concern some may have with him is that he will do too little, at a time when over-incarceration is being critiqued by experts and a broad array of citizens on both the left and right.

While interviewers continually (and appropriately) pepper Trump with questions about whether he will relinquish power if he loses, it is rare that anyone asks him who he might pardon after the election, despite the long and positively bizarre track record he has established.

Similarly, Joe Biden hasn't been pressed on the issue, and he certainly doesn't seem to have thought much about it: In response to a general question about criminal justice by NBC's Lester Holt at a town hall, Biden claimed that the Obama administration granted clemency to "18,000 people."  He was off by about 16,000 (he did better in the last debate, citing the number as "over 1,000").  It could be that Biden overestimates the effectiveness of the Obama clemency initiative, which offered too little, too late.  That well-intentioned project began only after years of inaction, as Obama granted just one commutation of sentence in his first five years.  It also failed to reach so many good cases that when Trump's First Step Act enabled 2,387 crack offenders to be released early, it amounted to far more than the Obama clemency program did, even though both projects targeted the same group.  Clearly, Obama left too many people behind.

Failing to focus on clemency when it matters also lets candidates off the hook for any specific plan for reform. And reform of every part of a system that has enabled systemic racism and unduly long sentences is important.  Right now, the clemency review process has seven steps, is controlled by the Department of Justice (conflicted because it sought the over-long sentences in the first place), and simply doesn't work.  There is broad support for the formation of a clemency review board to advise the president, and that idea even made it into the Biden-Sanders unity plan and the Democratic platform.  Biden, though, hasn't mentioned it (at least in the forums I have reviewed)— in large part because no one has asked.

Even if other criminal justice reforms are enacted, clemency must be reformed as well.  For one thing, other reforms don't do what one form of clemency, pardons, can do: free people from the restrictions of a conviction after they have completed a sentence.  For another, reforms that send cases back to the sentencing judges for review too often exacerbate disparities.  After all, judges who are tough at sentencing are less likely to give a break later, meaning that those who come before them could be disadvantaged. Clemency can be a way to reach those twice-victimized.

October 30, 2020 at 11:31 AM | Permalink

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