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November 18, 2021
Lamenting "Biden's do-nothing approach to clemency" as we approach holiday season
Rachel Barkow and Mark Osler have this new Hill commentary, headlined "Biden can't let Trump's DOJ legacy stifle reform," that focuses on Prez Biden's current disappointing clemency record. I recommend the full piece, and here is a snippet:
We are almost 10 months into his administration, and all signals point to Biden giving the department free rein to set criminal justice policies that should rest with him instead.
It is no small wonder that this approach has so far resulted in the first increase in the federal prison population in years. The DOJ is poorly situated to take the lead on whether to support legislation to reform sentencing and federal charges because its prosecutors inevitably want laws that make their jobs easier — even when the public interest and Biden’s commitment to reform criminal justice points in a different direction. Nothing Trump did challenges the urgent need to take DOJ out of its lead policymaking role on criminal law reform — in fact, criminal law reform in the form of the First Step Act was one of his very few bipartisan accomplishments and was accomplished without the imprimatur of the DOJ.
And then there is Biden’s do-nothing approach to clemency, which he seems to have delegated entirely to the DOJ. Biden inherited 14,000 pending clemency cases when he took office, and there was widespread agreement among those who studied the issue that the solution to the logjam requires moving clemency out of DOJ. Most of the Democratic candidates for president endorsed this change because the DOJ had proven itself incapable of handling clemency impartially and efficiently for decades. That backlog is now 17,844.
So why doesn’t Biden take clemency away from DOJ and create the kind of advisory commission that President Ford used to aid him in processing a similar backlog of petitions from people with convictions for draft evasion during the Vietnam War? The only apparent answer is that Biden does not want to look like he is interfering with DOJ. But clemency should never have been in DOJ in the first place. It is there by historical accident — no state gives clemency decision-making power to the same prosecutors who bring cases in the first place because of the obvious conflict of interest problem it poses.
Prior recent related post:
November 18, 2021 at 10:21 AM | Permalink
Comments
"We are almost 10 months into his administration, and all signals point to Biden giving the department free rein to set criminal justice policies that should rest with him instead."
The general principle of giving the Justice Department largely free rein (already I have seen reported some broad brush policy guidelines from above) is benign given the Trump Administration approach.
The specific concern that in this area there is a pro-prosecutor bias. That sounds valid though since there are left leaning members (particularly regarding voting rights and certain equality matters), I am somewhat curious how complete this is.
This portion also is phrased curiously:
But clemency should never have been in DOJ in the first place. It is there by historical accident — no state gives clemency decision-making power to the same prosecutors who bring cases in the first place because of the obvious conflict of interest problem it poses.
Is the problem that it is "in DOJ" (which is not really illogical given the subject matter though problematic in that an independent voice is helpful) or "the same prosecutors who bring cases"?
There aren't the same thing. The "DOJ" is a whole department.
Anyway, I have repeatedly noted I respect Rachel Barkow. Mark Osler also is someone I have read (I own his "Jesus on Death Row" book), so take their pressure to heart here.
OTOH, "ten months" on some level appears to be supposedly ten years given how long it is supposed to be. He has not "done nothing" though more pressure to act is appropriate.
Last year, millions of people took to the streets and it was not about the pandemic, or the environment, or taxes. It was about criminal justice
And, the Administration has done various things regarding "criminal justice." The protests were primarily about police shootings and injustices in court. So, efforts to investigate police departments, put criminal warriors on the bench and the like -- which is being done -- seems to be rather notable.
In a wider sense, yes, clemency is involved. Also, the "Biden should get involved bit" is a bit coy, since I'm pretty sure the authors (like DB) probably are suspicious about what he would do if he did.
Posted by: Joe | Nov 18, 2021 11:40:49 AM
