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September 12, 2021

Reminders from many Govs to Prez Biden: it is always a good time for good clemency

I noted in this recent post that Prez Biden is now behind Prez Trump's clemency pace as we approach the end of the eighth month of Prez Biden's time in the Oval Office without him having yet used his clemency pen one single time.  As discussed in this post from late last month, there is talk that Prez Biden might use his clemency powers to help ensure that at least some member of the CARES home confinement cohort does not have to return to prison after the pandemic.   With summer now winding down, I thought it might be useful to highlight that at least some state governors understand that any time and every season can be a good time and season for clemency.  So here is a round-up of just some stories and commentaries about state clemency efforts from just this summer: 

From Arkansas: "Governor Asa Hutchinson Announces Intent to Grant Executive Clemency"

From Kansas: "Kelly Commutes 5 Prisoners' Sentences, Pardons 3 Others"

From Missouri: "Governor Parson Grants 12 Pardons, Commutes One Sentence"

From New Mexico: "Pardons for 19 New Mexico criminals, some who were violent"

From Oregon: "Pardons and commutations rising in Oregon"

From Virginia: "Northam was right to grant clemency to the Martinsville Seven. He should extend it to the living, too."

From Washington: "Inslee commutes more convictions to clear backlog left after Washington state’s drug-possession law struck down"

From Wisconsin: "Gov. Evers grants 71 pardons since May"

September 12, 2021 at 07:40 AM | Permalink


"I noted in this recent post that Prez Biden is now behind Prez Trump's clemency pace"

Yes, a little troll that is in a way counterproductive since what Trump actually did was bad, so it adds support to a "go it slow and steady" approach. Not using your clemency power in the first eight months is not exactly somehow out of the realm of normal.

The special needs of COVID and the overall value of reform makes pushing Biden (once upon a time, he was a public defender) a good move.

Posted by: Joe | Sep 12, 2021 12:25:40 PM

Actually, Joe, for the first 3/4 of the 20th century, the norm was dozens (if not hundreds) of clemency grants in the first year of a presidency: https://www.justice.gov/pardon/clemency-statistics

Posted by: Doug Berman | Sep 12, 2021 11:19:49 PM

Prof. B., I don't think your statistic does much to help your case. It just proves that Biden's in line with all his recent predecessors.

Also, you already admitted you were trolling in the previous post on this topic, so why getting so uptight now?

Let's face it, when it comes to clemency, quality is more important than quantity. You seem to think otherwise, but I suspect you're in quite the minority on that score. And not even quantity, but making up new arbitrary statistics like clemency "pace" and then harping about that comes across as just goofy. I guess you're not very comfortable dwelling on the actual details of TP's pardons? That would certainly be understandable. Tell you what. After Biden's presidency is done in 2024, or, with luck, 2028, let's sit down and compare how the two of them did. I'm just not that worried about Biden's chances if actual quality is the metric.

The headlines about the governors don't really do much for me either. For one, it's just numbers, so it's hard to make sense of without any details on the substance. I do note that, for example, MO Gov. Parsons pardoned the repulsive McCloskeys—that's not exactly something to emulate.

Obviously, the mechanics around clemency may also be very different in states compared to the federal gov't. And state gov.s don't have nearly the same level of media scrutiny on them that the Prez does. Nor do they have to contend with the same pressing issues on a national level that may be higher priorities.

Finally, I agree with all that Joe said.


Posted by: kotodama | Sep 13, 2021 12:28:36 AM

Appreciate the comments, kotomada, and I am obviously interested in the details of Prez Trump pardons since my Center is helping to put together a panel discussion on this very topic on 9/14 based on the June 2021 issue of the Federal Sentencing Reporter that I helped curate:

I hope you will attend the panel and review of the FSR issue.

Meanwhile, I think the quantity AND the quality AND the pace AND the process of clemency are all quite important. And because we generally over-criminalize and over-punish at the federal and state and local level --- and often do so in disparate and discriminatory and socially harmful ways --- only a few "great" clemency grants in my view are not nearly as valuable as many "good" clemency grants. The failure of many recent Presidents to start looking for "good" clemency cases the first day they take office contributes to the harmful social construction that no person churned up in our massive federal criminal justice system merits having her sentence and/or conviction reconsidered.

Prez Trump certainly could have done much better with his pardon power (as most prior Prez), and I share your expectation that Prez Biden will end up with a better clemency record. But that prediction is largely because lots of advocates have been extensively advocating for broad use of this historic power (e.g., the ACLU is urging 25,000 prison commutations, marijuana reform advocates want even more federal marijuana convictions pardoned). But I fear that supporters and/or apologists for the federal criminal justice status quo make it that much easier for the Biden team to follow the uninspired first-term clemency script authored by other recent Dems like Bill Clinton and Barack Obama.

I am very eager to push Biden to get started on writing a better first-term clemency script ASAP. The home confinement cohort issue may be pushing the issue forward effectively now, but it seems to me already taking for too long for the Biden folks to address these "good" clemency cases.

Posted by: Doug Berman | Sep 13, 2021 9:38:48 AM

"Joe, for the first 3/4 of the 20th century"

So, I'm right, but about 50 years ago (1976 started the last quarter of the 20th Century), there was a change?

I support change, as noted, and for those who like history (originalism is very popular, even among some liberals, who just say "hey, Madison believed in the separation of church and state" etc.), such stats can help.

But, it is not quite responsive, so it is again of limited help. It is a sort of sloganeering, tossed with a hint that the person is somehow ignorant ("actually" is a trigger word that usually has a bit of an edge), that can backfire.

The Trump business k to answer, if he wants, but it only furthers my problem (which led me to leave this blog for the rest of his term) with the framing.

Even saying Trump could have done much better tosses in a suggestion he is merely like others ("most" could have done better). His "pace" was full with troll pardons. This blog cited, promoted as a good thing, his pardon of someone who violated civil liberties.

A pardon arbitrary applied (very early, with no conditions, for something that was at most largely a symbolic penalty) with a message he was "just doing his job."

This perverts the pardon process & makes it HARDER to reform. If reform is the goal, as well as general concern for those in the criminal justice system, that should be rather troubling.

The PROCESS of Trump's use of pardon power was also problematic. But, repeatedly there is no good context on the matter. We get trolls that Trump used the power more early on than Biden. Trump is bad but so are "most" recent office holders.

This normalizes Trump. Trump and Clinton, both bad. More of the same. This sort of thing has real negative consequences, including being counterproductive to those actually supporting reforms.

I support reform. I think Rachel Barkow or someone like her should have been appointed as a sort of pardon czar. But, trolling and "actually" will again HURT the cause in various ways.

Posted by: Joe | Sep 13, 2021 10:41:55 AM

Sorry, Joe, I did not realize "actually" was a trigger word. Meanwhile, because I think even some mass murderers can merit clemency -- as do the many calling for Biden to clear federal death row --- saying Trump pardoned someone who "violated civil liberties" does not serve to undermine my eagerness to promote the broad use of the clemency power. Nor does Trump's problematic clemency record undermine my deep disappointment that Prez Biden has followed the lead of other recent presidents and ignored his historic clemency power over his first seven months in office. There is now word that some clemency efforts are afoot for some in the home confinement cohort, so it seems I have not "HURT the cause" too much by noting the fact that Prez Biden is behind Prez Trump's clemency pace as of now.

Posted by: Douglas Berman | Sep 13, 2021 3:46:14 PM

>Sorry, Joe, I did not realize "actually" was a trigger word.

Uh huh. It's a common usage as is leading with this "innocent look" sort of response that leads with a minor point that puts the other person on the defensive.

> Meanwhile, because I think even some mass murderers can merit clemency -- as do the many calling for Biden to clear federal death row --- saying Trump pardoned someone who "violated civil liberties" does not serve to undermine my eagerness to promote the broad use of the clemency power.

The "clearing" would basically amount to commuting their sentences to LWOP or something comparable. Those who support it don't say (you know this ... so this reply is more trolling) the murderers did nothing wrong. That they "were just doing their jobs."

It is not meant to "undermine" your eagerness. Does that reasonably come out of what I'm saying? I support a broad use of clemency power. I said that. The concern here, this isn't too hard I'm sorry, is there has to be some nuance when discussing how it was applied. Every case, full stop, isn't good there.

This isn't hard. I like helping children. But, if some child wants to do a bad thing, helping them is bad. Helping 10 bad children do bad "helps children" but it's not a good thing.

>Nor does Trump's problematic clemency record

He has one. And, it is not just some median (you said "most" office holders here had problems). It was particularly problematic.

>undermine my deep disappointment that Prez Biden has followed the lead of other recent presidents

Biden was in office for eight months, so like k. here, I think "deep disappointment" as a bunch of other things are happening -- including him doing things to help criminal justice in other ways -- is a bit much at this point.

But, you can be disappointed. Fine. I support change. I said this. I think (1) your comments in part can hurt change (2) you constantly lack perspective on judging Trump etc. here.

Posted by: Joe | Sep 13, 2021 6:09:59 PM

Thanks, as always, for your comments. I allow and encourage comments on this blog because I realize I have just one perspective on issues --- and sometimes mine are controversial.

Posted by: Douglas Berman | Sep 15, 2021 10:47:32 AM

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