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July 13, 2021

"We Know How to Fix the Clemency Process. So Why Don’t We?"

The title of this post is the headline of this new New York Times essay authored by Rachel Barkow and Mark Osler.  As with everything authored by these two professors, this piece should be read in full.  Here are excerpts:

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 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.

July 13, 2021 at 09:16 PM | Permalink


Amen. Very well put.

Posted by: Zachary Newland | Jul 14, 2021 10:19:22 AM

I think it is appropriate to give the opinions of the prosecutors some weight as they will know more details surrounding the charges than other actors and the notoriety of the crime in their community, but I am not sure about considerable weight.

A lot depends on how much of an open mind the local US Attorney's Office has. In my state, the probation office (which prepares reports for the governor) checks in with the local office for input on pardons. The office where I work at does take a look at the criminal history of the offender since the conviction to see if there are any red flags and does not automatically say no to everything, but I know that other offices may not be as diligent or open.

Of course, the big issue is the lack of criteria for who gets a pardon/commutation. There are three basic groups that involve different issues: 1) those with questionable convictions; 2) those with sentences that seem unjust due to case-specific factors or changes in how we approach the underlying offenses; and 3) those with demonstrated rehabilitation who "deserve" to be relieved from their original sentence/conviction. In each of these groups, somebody needs to define what those running the pardon process are looking for and how to separate the wheat from the chaff.

Posted by: tmm | Jul 14, 2021 10:52:21 AM

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