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December 24, 2020

A challenge for those troubled by Trump's final month clemencies: identify dozens, hundreds of comparable cases for Biden's first month

It is hardly surprising that Prez Trump has kicked off his final weeks in office with sets of clemency grants that include all sorts of friends and family and politically-charged defendants (basics here and here).  It is perhaps even less surprising that Trump's latest flourish of clemency grants is garnering lots and lots of criticisms from lots and lots of quarters (just a few examples are here and here and here and here and here). 

But particularly notable in the first wave of reaction was US Senator Chris Murphy tweeting here that "It’s time to remove the pardon power from the Constitution."  Many tweeters have pushed back, and Rachel Barkow's tweet thread here is especially effective and I wanted to highlight some of what she says.  I recommend the whole thread, but these portions (with my bolding) partially motivated the title of this post:

[T]he Congress of which he is a part has established no functioning second-look mechanisms for shortening sentences or expunging convictions, commutations and pardons are the only mechanisms for correcting injustices in the federal system.  And it's not as if those injustices are rare.

Go to any federal correctional facility, and take time to learn who is there and about their cases, and you find literally thousands of people whose sentences were grossly excessive given their offenses.  Those people need commutations as a corrective because there is no parole or other second look in place to address that....

Pardons are essential as well because the collateral consequences of convictions can be devastating for people trying to get housing, employment, and education after being convicted. There is no other way to clear a federal conviction than a pardon....

The solution to what's happening now is to get a better leader, which we've done.  And my hope is that leader will see that the pardon power's utility is critical, and he'll show everyone what a real leader does when wielding it.

While I fully understand frustrations with how Prez Trump has been using his pardon power, I think much energy now should go to urging Prez-elect to do better and to do better right away! Among the many problems with the modern exercise of the federal clemency power is the modern tendency for Presidents to entirely ignore this power until late in their terms.  Notably, as detailed in this DOJ data, Prez Trump at least thought to use his clemency power, and did so nearly a dozen times, during his first couple years in office.  Neither Barack Obama nor George W. Bush nor Bill Clinton bothered to pick up their clemency pen for a single individual during their first two calendar years in office. 

As regular readers likely know, I think disuse of clemency powers is always a much bigger problem than the misuse of this power.  And disuse, not misuse, has defined the start of modern presidencies.  So this post presents my suggestion for what those troubled by Trump's final month clemencies ought to do — namely help identify for the incoming Biden Administration persons currently in federal prison and/or burdened by a federal conviction who should get a clemency grant during Biden's first month in office because they are at least as worthy as some of Trump's final-month clemency recipients.  Helpfully, Jack Goldsmith and Matthew Gluck have this current list of all Trump clemency recipients, and I would urge advocates to demand that Prez Biden grant many "good" clemencies as he gets situated in the Oval Office to balance Trump's "bad" use of this power on his way out the door.

I will start this process by flagging a group of federal prisoners that should be easy first cases for a Biden Administration, namely the "Life for Pot" crowd.  I do not think it is entirely misguided to describe persons still serving extreme federal terms for marijuana offenses as political prisoners, especially now that so many states have fully legalized marijuana and the US House has likewise voted to do so.  The Life for Pot website spotlights those Serving Sentences of Life without Parole in Federal Prison for Marijuana and those Serving De Facto Life.  I hope Senator Murphy will become an advocate for some of these kinds of prisoners and the thousands more who need the historic clemency power used more and better rather than needing it removed from the Constitution.

December 24, 2020 at 02:12 PM | Permalink


I'm hardly an expert, but it seems like many of the issues raised in the quoted portions could be addressed more directly via reinstating federal parole and some kind of sealing/expungement regime at the federal level--this was even alluded to right in the quotation.

I'm not sure we need to go whole hog and eradicate the pardon power entirely, but it does seem like some kind of serious reform is needed. Various folks on the intertubes have suggested a citizens panel or something of that ilk, which (1) could be helpful and (2) seems to be used by certain other jurisdictions. Realistically though, any calls for abolishment or fundamental reform are just talking points, because those would require a constitutional amendment and we all know that's a dead letter. (Of course, talking points can be useful to build a record and get a conversation going, which may end up spurring different reforms down the road.)

I do think if Congresspeople are talking about pardon reform, at least they should put some energy toward pursuing the items mentioned above, like parole and expungement, that can be accomplished via simple legislation. That would also lower the temperature, so to speak, around pardons, which I think is a good thing. It seems like without these other "safety valves", there's an inordinate amount of pressure on the pardon power to act as the "be all and end all" or "one-stop shopping" etc.

Posted by: hardreaders | Dec 24, 2020 4:26:56 PM

It does seem that anyone who does receive a pardon, has been in there 3/4 of their sentence, what's the point? It's rare to get one unless you're a boy/girl scout and just BS if you ask me. Reinstate parole, in the Federal system and Stop the outlandish sentences for non-violent crimes. Drop charging people on words alone, set them free. It's disgusting how the Federal justice system is so corrupt and full of BS. get rid archaic judges who beat off behind there podium by sentencing for decades.

Posted by: Randy | Dec 24, 2020 4:35:01 PM

Rachel Barkow's thread talks about the need for federal statutory reform to serve the functions that are now in part served by pardons, and she rightly bashes Senator Murphy for not looking toward promoting such reforms before calling for ending the pardon power. I share your sense that advocate should try to redirect any concern about pardons toward creating more legally regular mechanisms to address excessive sentences and collateral consequences.

Meanwhile, the Biden-Sanders unity ask force spoke of clearing a clemency board: "Clemency Board: To avoid possible institutional bias and ensure people have a fair and independent evaluation, establish an independent clemency board, composed and staffed by people with diverse backgrounds. Expand Obama-era criteria for proactive clemency initiative to address individuals serving excess sentences." This can and should be done by legislative fiat, and I am hoping Trump's ongoing clemency flourish might increase the likelihood the Biden Administration follows up on this front.

Finally, I think a constitutional amendment for modest pardon reforms that are modest and procedural --- e.g., creating an independent board which must make a recommendation before Prez can act, giving Congress authority to "over-rule" a clemency by a super-majority vote --- might have a chance to be enacted if (when?) Trump seek to pardon his whole family and if Biden were to back a measure. Not sure if this is best use of everyone's time, but I am actually keen on the idea of having the country find a way to come together to get a new amendment to our constitution.

Posted by: Doug B. | Dec 24, 2020 4:38:50 PM

Again, I'm no expert, and I've only been following the back-and-forth casually, but I wouldn't be so quick to dismiss Sen. Murphy. From what I can tell he's a pretty good guy and it seems like his heart is generally in the right place. His reaction is fairly understandable under the circumstances given how egregious these pardons have been for the most part. And like I said, the positive energy can be harnessed and put toward more fruitful pursuits. I agree totally with Prof. Barkow that statutory reform should be sought wherever it would help address these issues.

I'm fully on board (no pun!) with that proposal from the task force, and it's likewise great if it can be accomplished just via legislation. Anything to make the process more rigorous, transparent, and methodical is an improvement in my book. I think even when a pardon recipient is highly deserving, it really disillusions people (i.e., the broader public) when the process is seen to be extremely arbitrary and opaque.

I hope you're right about the chances for constitutional-based reform, but I can't muster any optimism myself. Although, under the present circumstances, not sure if the Congressional "veto" would move the needle much. Even when the inevitable self- and/or family pardons happen, I doubt the R contingent will protest much. The most you might get is physical therapy for Susan Collins for repetitive stress injury caused by excessive brow furrowing, and laryngitis treatment for the Sasses and Romneys of the world after issuing too many strongly-worded statements.

Posted by: hardreaders | Dec 24, 2020 5:25:14 PM

Many people are calling for this kind of categorical action "right away" under Biden-- but that is just impossible unless the advising process and the clemency system are reformed first. Right now, the ONLY body within the administration that would logically handle this task is the DOJ, and they will, inevitably, kill it or diminish it beyond recognition. Think about it-- who is Biden going to refer this to for study (which is what he does) and/or implementation? The DOJ. Because there is no one else.

That's why we must first push for the creation of some kind of infrastructure-- a criminal justice advisor and clemency board-- inside the administration but outside of the DOJ, before we throw up demands for immediate grants. Sometimes to drive through a thicket, you first have to clear the brush and build a road-- barging through just destroys your car.

Posted by: Mark Osler | Dec 28, 2020 5:23:43 PM

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