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January 20, 2021

Timely reminder that Congress has a critical role to play in reforming clemency conditions

Former US pardon attorney Margaret Colgate Love has this great new Washington Post piece highlighting that Congress can and should create statutory record relief mechanisms (as nearly all states have) in order to prevent clemency from serving as the only means for persons with federal criminal records to find relief.  I recommend the piece in full, and here are excerpts:

The core problem that has led to pardon’s abuse is that the justice system has relied too heavily on an authority that is inherently arbitrary and unfair.

Thus, the law makes the president exclusively responsible — through his pardon power — for shortening most federal prison sentences and relieving the collateral consequences of conviction — functions that in most states are now routinely performed by judges and agencies under statutory schemes.  For example, a presidential pardon is the only way a person convicted of a federal felony can qualify for many business and professional licenses, or regain the right to possess firearms.  Indeed, I have been told — and my own practice would confirm — that a desire to regain firearms rights accounts for nearly half of the pardon applications filed.  It is beyond absurd to make the president a one-person gun-licensing bureau for people convicted of nonviolent federal crimes who want to go hunting again....

I do not advocate curtailing the president’s pardon power, and the Biden administration can decide how it wishes to administer that power.  I hope it will restore at least the appearance of fairness and regularity to the way applications from ordinary people are considered (even if the process will continue to function, as it always has, more or less like a lottery)....

The alternative to systematic reliance on pardoning is what Daniel J. Freed described 20 years ago as “the more demanding road toward democratic reform.”  The incoming administration should urge Congress to offload many of pardon’s exclusive functions onto the legal system by enacting robust statutory relief mechanisms, for those in prison and for those who have fully served their sentences, as a majority of states have done in recent years....

In other words, Congress should enact laws to provide alternative ways of handling much of the routine business that is currently overwhelming the pardon process, ideally using the federal courts. It has already begun this work in the 2018 First Step Act, which gives federal prisoners the ability to go back to court to seek reduction of their sentences.

If the pardon process were not bogged down by thousands of petitions from people who simply want to restore lost rights or improve their employment prospects, the president would be free to use the constitutional power in a far more expansive and policy-oriented manner to encourage reform of the justice system, to counter its overreaches and to tell good news about its operation through stories of successful rehabilitation.

In the end, Trump’s abuse of his pardon power could be seen as a blessing in disguise if it provides the opportunity to wean the federal criminal justice system from its dependence upon presidential action for routine relief. Only if freed from its more workaday responsibilities can pardon play the constructive role the Framers intended.

I sense that record relief reform has been a truly bipartisan endeavor in states from coast to coast in reent years. The Biden Administration and members of Congress on both sides of the aisle might be wise to start its criminal justice reform efforts here.

January 20, 2021 at 06:46 PM | Permalink


There is a provision in the law whereby a person who has completed their federal sentence (or state sentence, when the state has no analogous provision) can apply to have their firearms rights restored. It's been there for years. IIRC it may have been a part of the 1968 Gun Control Act, or perhaps the 1986 Firearms Owners Protection Act or possibly the 1994 Clinton Gun Control Act.

Just the same, appropriations bills have always contained a provision forbidding DoJ from spending any money on performing any acts related to actually implementing that provision. The usual justification, if any is given, is "because something bad might happen".

Posted by: scribe | Jan 21, 2021 12:00:18 PM

Yeah. Here it is: 18 USC 925(c).
Discussion: https://www.zuanichlaw.com/how-do-i-restore-my-federal-firearm-rights#:~:text=Under%2018%20U.S.C.,judicial%20review%20in%20federal%20court.

Can I restore my federal gun rights in federal court?

You can restore your state gun rights in state court, so you might naturally assume that you can restore your federal gun rights in federal court. But the answer is no. Why?

Under 18 U.S.C. 925(c), you can apply to the Bureau of Alcohol, Tobacco & Firearms to restore your gun rights. And if your application is denied, then you can seek judicial review in federal court.

But since 1992, Congress barred ATF from spending money to review and investigate a felon's application to restore gun rights. Then, later, the U.S. Supreme Court ruled that “no action” does not equal a “denial.” In other words, no denial equals no right to go to federal court.

How do I restore my federal gun rights if I have a federal conviction?
Because you can't go to federal court (see above), a presidential pardon is essentially the only way to restore your federal firearm rights if you've been convicted of a federal felony.

In practice, therefore, you have very little chance of ever fully restoring your gun rights with a federal felony.

Posted by: scribe | Jan 21, 2021 12:19:05 PM

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