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December 9, 2021

Another reminder that Prez Biden has so far decided to forget using his clemency powers

The headline of this new Insider article, "Despite promises, Biden has yet to issue a single pardon, leaving reformers depressed and thousands incarcerated," captures the themes of the full piece effectively.  Regular readers will not find anything too new in this article, but it still serves as a useful review of where federal clemency matters stand as we approach the close of 2021.  I recommend this lengthy piece in full, and here are a few excerpts:

Nkechi Taifa, an attorney, activist, and leader of the progressive Justice Roundtable, ... [had an] early December meeting with Susan Rice, director of the Domestic Policy Council, and staff from the Office of the White House Counsel, [where] she implored the administration to act now [on clemency].

More than 7,700 federal inmates are currently on home confinement, granted release from prison on the grounds that they pose no security threat and are at a heightened risk of suffering severe complications from COVID-19. When the public health emergency is declared over, they could be forced to return. Leading Democrats, including Senate Whip Dick Durbin of Illinois, have argued it would be an injustice to send them back, urging the White House to consider granting clemency en masse.

In the meeting, White House staff appeared to agree, Taifa said. That's not the problem. "Their rhetoric says that they understand what we're saying, and that they're working on it," she said. The issue is the conversation is taking place in December. "If it's going to take this long for a first step, how long is it going to take for the rest?"...

"What we've got is this bureaucratic morass," Mark Osler, a former federal prosecutor, said in an interview. "There's seven levels of review, one after the other, and the first four levels are all in the Department of Justice, which of course is conflicted because they're the ones who sought the sentence in the first place."

The first step is the Office of the Pardon Attorney, which is currently led, on an acting basis, by Rosalind Sargent-Burns, a career department lawyer former Attorney General William Barr appointed. They then present their recommendations on who should get clemency to the deputy attorney general's office, where another staffer reviews it and passes it on — maybe — to their boss. Then it goes to the staff for the White House counsel, then the actual counsel, then an aide to the president and then, if all goes well, to Biden himself.

The president could, at any time, bypass this process. Trump did when he pardoned Arpaio and his other allies, such as Roger Stone and Steve Bannon. If anything, Osler, now a professor at the University of Saint Thomas, told Insider he thinks Biden is too committed to the way things were. It's one thing to respect the Justice Department's career bureaucracy when it comes to deciding who deserves prosecution but, he said, "it doesn't make sense in terms of clemency."

A White House official told Insider the president is "exploring the use of his clemency power" for non-violent drug offenders who were moved to home confinement at the start of the pandemic, a transfer authorized by the March 2020 CARES Act — specifically, those with fewer than four years left on their sentences (one activist who has engaged the White House expects those with less than two years remaining will also be excluded).  "At the same time," the official said, Biden "continues to consider requests for pardon and commutation that are submitted in the ordinary course."...

The Department of Justice declined to comment on how many petitions for clemency have received favorable recommendations within the department or have been referred to the White House. It is impossible to say for sure, then, how much the delay in granting pardons is due to bureaucracy or stalling by political actors.

But sticking with the opaque status quo is itself a political decision — the president could unilaterally discard it — and it's a disappointment, if not a surprise, to people like Osler. He's not expecting big things.  "I haven't heard anything from the administration that gives me hope," he said.

Some of many prior related posts:

December 9, 2021 at 11:55 AM | Permalink


That is a shame that Biden hasn’t commuted anyone’s sentence or pardoned anyone for a long-forgotten crime. Certainly there is one federal prisoner whose sentence should be recast.

But buck up Doug—Biden’s appointment of that woke twit as USA for District of Massachusetts is effectively a proactive pardon of lots of criminals. And the deciding vote was cast by a person who has been adjudicated as having violated First Amendment rights and who got her start in political office by a boudoir interview.

Posted by: Federalist | Dec 9, 2021 1:16:20 PM

"Over the past three decades, that's pretty much been the norm, regardless of which political party claims the White House. Presidents Bill Clinton, Barack Obama, and George W. Bush all waited until at least their second year in office before granting clemency to a human being."

So, troll title aside, he might just be following long term practice.

(This doesn't mean it is good practice, necessarily, but it does suggest he is not "forgetting" anything.)

The start with the turkeys reminds once more that he didn't actually "pardon" the turkeys in any formal sense.

We have to go pretty far into the article before moving past "Pez" Biden & into the weeds of the actual process. Again, I welcome criticism and reform there, especially if done with some nuance.

Posted by: Joe | Dec 9, 2021 2:55:32 PM

"The president could, at any time, bypass this process. Trump did when he pardoned Arpaio and his other allies, such as Roger Stone and Steve Bannon."

This is not a particularly compelling argument for bypassing the process. In fact, it's sort of like the exact opposite of a compelling argument.

Also, if anyone "forgot," it's the ones who claim Biden made "promises" when he actually did no such thing. I believe they're keying in on this campaign quote: "'I think we should decriminalize marijuana, period,' Biden said during a 2019 debate. 'And I think everyone – anyone who has a record – should be let out of jail, their records expunged, be completely zeroed out.'"

He certainly expressed a view and a goal—which are admirable and I certainly agree with of course—but I don't see anything resembling a promise there. I also don't see any mention of specific means, like the pardon power, to carry out that view and goal.

The OP also displays the usual "forgetting" about the 50 R Senators and multitudes of R House members—especially the former—who, last I checked, are hardly being prevented from taking the initiative and showing leadership on this kind of issue. Well, maybe they're "prevented" by their own lack of interest in doing anything to improve the situation. But again, in the OP's muddled conception of how the federal gov't is structured, anyone with "R-" after their names isn't an independently-elected, autonomous, grown-up actor capable of thinking for themselves. Nope, instead, Biden's apparently the CEO of "USA Corp." who all elected officials answer to on pain of being sacked. So if they don't act, it's actually somehow Biden's fault for not bossing them around.

Finally, as Federalist also points out in his typical clumsy, offensive, and borderline-incoherent way, Biden is, in fact, taking concrete positive steps on criminal justice. We have the obvious example of nominating and obtaining confirmation DA Rollins to D. Mass. USA. (As if that weren't enough already, it also furthers representation for black women.) But you'd never know that from reading this blog, even though it supposedly covers sentencing topics. So I guess the blog "forgot" huh? And whenever it finally remembers, will it also recount that not. a. single. Republican. Senator—including wannabe so-called "moderates" Collins and Murkowski—voted in favor of this eminently qualified nominee? Maybe not because anything bad Rs do is apparently invisible around here.

Posted by: kotodama | Dec 9, 2021 3:01:36 PM

I was about to comment on the "Pez" typo too, but Joe beat me to it. That certainly brings back fond childhood memories.

Apparently, presidential-themed dispensers are in fact a thing.


Maybe the Biden one could dispense COVID pills.

Posted by: kotodama | Dec 9, 2021 3:05:44 PM

I welcome kotodama's comments.

For me personally, I truly support the pressure (and some of the criticism) to pardon/commute more, including changing the process. Trump's troll pardons, as I noted in the past, didn't help pushes for reform. It encourages a more conservative approach.

I think big picture here, as I voiced in the past, but that's part of the battle too. I would welcome, e.g., some Christmas or New Years Eve pardons and commutations. The idea of Veteran's Day pardons (actual) over the asinine turkey tradition was a good one.

As someone (overriding the recommendation of the pardon & parole board) was executed in Oklahoma this morning, I again recommend Mark Osler's book, Jesus on Death Row. As well as Rachel Barkow's book.

(Both individuals are cited in the article.)

Posted by: Joe | Dec 9, 2021 3:43:07 PM

Always happy for the engagement, and thanks for catching the title typo now fixed. As for what Biden promised, here is part of this campaign platform on criminal justice issues (https://joebiden.com/justice/):


"We need to confront racial and income-based disparities in our justice system and eliminate overly harsh sentencing for non-violent crimes. As president, Biden will:....

"Use the president’s clemency power to secure the release of individuals facing unduly long sentences for certain non-violent and drug crimes. President Obama used his clemency power more than any of the 10 prior presidents. Biden will continue this tradition and broadly use his clemency power for certain non-violent and drug crimes."

He still has at least three more years to make good on this promise (along with other sentencing related promised made there such as "Eliminate mandatory minimums" and "Eliminate the death penalty" and "Decriminalize the use of cannabis and automatically expunge all prior cannabis use convictions").

Meanwhile, kotodama, I will start blogging about the new D. Mass US Attorney Rollins if and when she starts doing some interesting sentencing work. I have heard a lot of different versions of her work as a prosecutor to date, but it is hard for me to judge that work when I am not in Boston and do not know the Mass system will. Do you expect her to make a big difference? One high-profile case she inherits involved all the Varsity Blues defendants. Do you think sentencing recommendations in these cases might change with USA Rollins now in charge: https://www.justice.gov/usao-ma/investigations-college-admissions-and-testing-bribery-scheme

Finally, kotodama, I hope someone is rewarding you for your effort to redirected criticisms of how Prez Biden uses (or does not use) his clemency power to bemoan the work of members of Congress from the minority party. What a hallmark of accountability to finding someone with little or no constitutional power to blame for how a Prez uses (or does not use) a particular constitutional power.

Posted by: Doug B. | Dec 9, 2021 4:26:42 PM

Offensive? How so? It is true that Harris cast the deciding vote; it is true that Harris’ boyfriend appointed her to two taxpayer funded positions, and it is true that her practices as AG violated the First Amendment. And as for Rollins, there is video of her acting like a banshee. Funny that she worries about her kids, but not other people’s kids when she lets criminals go.

People who are offended by the truth are just close-minded ideologues.

Posted by: Federalist | Dec 10, 2021 10:14:09 AM


She should be nowhere near the levers of power and probably should be disbarred for this.

Posted by: Federalist | Dec 10, 2021 10:28:51 AM

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