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April 1, 2022
A second chance for Prez Biden to follow his proclamation about Second Chance Month with some clemency grants
In this post last year, I highlighted some language from the White House's "Proclamation on Second Chance Month, 2021" while stressing that Prez Biden has one particularly important second chance power, namely his historic constitutional clemency authority. But, a year later, we are sadly still without a single clemency grant from Prez Biden — we had three from Prez Trump by this point in his term — and yet we do now have another White House second chance proclamation. Here are some passages (and my added emphasis):
April marks Second Chance Month, when we reaffirm the importance of helping people who were formerly incarcerated reenter society. America is a Nation of second chances, and it is critical that our criminal and juvenile justice systems provide meaningful opportunities for rehabilitation and redemption. It is also vital that we address both the root causes of crime and the underlying needs of returning citizens using resources devoted to prevention, diversion, reentry, trauma-informed care, culturally-specific services, and social support. By supporting people who are committed to rectifying their mistakes, redefining themselves, and making meaningful contributions to society, we help reduce recidivism and build safer communities.
Every year, over 640,000 people are released from State and Federal prisons. More than 70 million Americans have a criminal record that creates significant barriers to employment, economic stability, and successful reentry into society. Thousands of legal and regulatory restrictions prevent these individuals from accessing employment, housing, voting, education, business licensing, and other basic opportunities. Because of these barriers, nearly 75 percent of people who were formerly incarcerated are still unemployed a year after being released.
We must rethink the existing criminal justice system and whom we send to prison and for how long; how unaddressed trauma and abuse create pipelines to incarceration; how people are treated while incarcerated; how prepared they are to reenter society once they have served their time; and how the racial inequities that lead to disproportionate numbers of incarcerated people of color and other underserved groups.
My Administration recognizes that making the criminal and juvenile justice systems more equitable, just, and effective requires a holistic approach. It requires eliminating exceedingly long sentences and mandatory minimums that keep people incarcerated longer than they should be. It requires quality job training and educational opportunities during incarceration. It requires providing formerly incarcerated individuals with opportunities to enter the workforce, reunite with their families, find stable and safe homes, and access health care. It requires expunging and sealing certain criminal records so that people’s futures are not defined by their past....
NOW, THEREFORE, I, JOSEPH R. BIDEN JR., President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim April 2022 as Second Chance Month. I call upon all government officials, educators, volunteers, and all the people of the United States to observe the month with appropriate programs, ceremonies, and activities.
I like the all the sentiments in this proclamation, but Prez Biden has to start "walking the walk" instead of just "talking the talk." The federal sentencing system has many individuals serving "exceedingly long sentences and mandatory minimums that keep people incarcerated longer than they should be." As one detailed example, this terrific recent research paper authored by Alex Fraga, who serves as a Senior Research Associate at Ohio State's Drug Enforcement and Policy Center, documents the thousands of persons subject to federal life sentences for drug offenses. Prez Biden can and should, today and tomorrow and every day he is in office, use his clemency pen to begin the process of "eliminating exceedingly long sentences" in the federal system. To its credit, this proclamation notes that " racial inequities that lead to disproportionate numbers of incarcerated people of color and other underserved groups." Dr. Fraga's report highlights this reality in one context, as she details at lengthy just how "racial disparity in the imposition of life or de facto life sentences in the federal system for drug offenses is glaring." Again, Prez Biden can take direct action to start to remedy these problems with some commutation grants.
Turning to the discussion of re-entry, the proclamation rightly call for more "expunging and sealing [of] certain criminal records so that people’s futures are not defined by their past." However, in the federal criminal justice system, there is currently no statutory mechanism for expunging or sealing of any federal criminal records, and thus only the pardon power can eliminate a federal criminal record creating "significant barriers to employment, economic stability, and successful reentry into society." Of course, since millions of Americans labor with federal criminal records, it would be unrealistic to expect Prez Biden or any president to conduct mass pardoning. But it would still be quite important and impactful, while preaching about second chances, to at least do some pardoning of at least a few who obviously deserve this kind of second chance. And, to be potentially more effective in this context and others, Prez Biden should be urging Congress to enact federal statutory tools for expungement and record sealing comparable to what exists (and is often getting expanded) in every single state across our great nation.
I could go on and on, but I will close simply by asserting that it feels a bit like an April Fool's joke for the President to "call upon all government officials, educators, volunteers, and all the people of the United States to observe the [Second Chance] month with appropriate programs, ceremonies, and activities" when he himself so far has done so little direct second chance work. Sigh.
Prior related post from last year:
April 1, 2022 at 10:07 AM | Permalink
Comments
What's shocking isn't just that Biden hasn't granted clemency-- it is that he hasn't even bothered to DENY any. They have just ignored the whole thing. As for the statement-- Someone who knows federal criminal law needs to start editing these things for Biden. He calls for expungement but not clemency-- and the federal system does not have expungement, but does have clemency. Here is my fear/prediction: Biden will grant a handful of clemency petitions, and name a pardon attorney. People will go bonkers thinking it is a whole new era! But... it won't be. The problem is not the Pardon Attorney-- it is with the entities upstream (DAG & WHC) who have thousands of files sitting around. Trump's DAGs and WHCs probably did nothing on them, and the piles grew. With >18k petitions pending, a systems change is needed, not a new person in an old position and granting a few petitions.
Posted by: Mark Osler | Apr 1, 2022 12:36:07 PM
As long as the "reform" side remains hypnotized by the notion -- which the public rightly rejects -- that it's only the rest of us (racist, fascist, Puritan, etc., etc.) folks who need to change, and that it's NEVER the criminal who needs to change, then we're going to stay about where we are.
As normal people understand starting about in high school, the prisons would empty in a very few years if criminals would take a few simple steps to live as the rest of us do as a matter of course: Don't steal stuff, abjure violence when you have a gripe, be honest in your dealings, and stay away from hard drugs (which will improve your health along with everyone else's).
Follow these four simple rules and the supposed "over-incarceration" problem will shrink dramatically before Biden's term is up.
Just insisting that it's the public's fault, or elected officials' fault, is ideological hokum, false, and -- more to the point for practical purposes -- transparently false. People full well understand that human beings make choices, and it's mainly the kind of choices you make, not the Big Bad System, that determines your fate.
Posted by: Bill Otis | Apr 1, 2022 3:57:31 PM
Bill, I know you like your talking points here, but this proclamation is about "supporting people who are committed to rectifying their mistakes, redefining themselves, and making meaningful contributions to society." In other words, it is focused on helping those who are eager to change for the better. If you agree with supporting those folks, you should agree with what Prez Biden is saying here (though not yet doing with his clemency authority).
Posted by: Doug B. | Apr 1, 2022 4:40:26 PM
Doug --
"Bill, I know you like your talking points here..."
But you don't like yours??? Biden doesn't like his? (not that they're actually his -- they came off some staffer's word processor).
"...but this proclamation is about 'supporting people who are committed to rectifying their mistakes...'"
They weren't mistakes. They were intentional acts. And if they hadn't been caught, they would have kept right on. Indeed, a huge chunk of them keep right on even AFTER they've been caught.
"... redefining themselves, and making meaningful contributions to society."
I'm not nearly that ambitious (nor are they if we're to be honest rather than romantic about it). Maybe they could quit talking about themselves in glorified terms, get a job and leave people alone. I'd happily settle for that.
Posted by: Bill Otis | Apr 1, 2022 5:51:17 PM
Bill -
There you go again, scolding criminals to "get a normal job" and not recognizing the fact that past trauma and inherited tendencies may inhibit criminals ability to change their behavior. I believe you should be more empathetic and responsive to criminals as their behavior may not be all of their fault. Brett Miler
Posted by: Brett Miler | Apr 1, 2022 5:57:07 PM
I have followed this site for years. With each new President, Doug hopes that it will open the door to a great new world of pardons, and it never does.
The fact is, hardly any voters want more pardons. It's definitely not a winning issue, and could very well be a losing issue if the "wrong pardons" are given out.
Posted by: Marc Shepherd | Apr 1, 2022 6:00:35 PM
Marc Shepherd --
There's a good reason that hardly any voters want more pardons. They understand that, overwhelmingly, the criminal justice system gets it right, and there is no cause for (often abused) executive branch interference with its outcomes. Yes, some innocents are convicted and some of the guilty go free, but perfection is unattainable no matter what we do, and there's no great evidence that the executive branch, which inevitably acts with political motives, will get things better calibrated than the judicial branch did.
Posted by: Bill Otis | Apr 1, 2022 6:10:47 PM
Brett Miller --
Some questions. Do you think adults who intentionally commit crime should be punished? Do you think childhood trauma is at the root of crime, or is it more often greed (hardly unknown in human beings) combined with the idea that you can get away with it? If in fact criminals cannot change their behavior, what alternative do we have than segregating them from civil society? Do you believe people are convicted and imprisoned when the evidence shows they were truly unable to control their behavior (e.g., were psychotic or sleepwalking)? Do you think the criminal owes a debt to society, or is it society that owes a debt to him by providing him with housing, food stamps, subsidized transportation?
Posted by: Bill Otis | Apr 1, 2022 7:28:11 PM
Bill -
I believe that your assumption that "greed" is the root cause of crime may be simplistic and overlooks the fact that long lasting trauma may cause individuals to act out in negative ways later on. Punishment for crime must be tempered with compassion and prison should only be used for the individuals who present the most risk to public safety - and prison sentences should be limited to 20-30 years (except for the most extreme cases - serial killers, terrorists). If society can prevent lower level crimes by providing housing, food, and transportation, I believe that would be money well spent. Brett Miler
Posted by: Brett Miler | Apr 1, 2022 8:14:23 PM
The word "mistake" includes "intentional acts." A mistake is an act that was wrong or misguided, regardless of whether it was intentional or unintentional. For example, "It was a mistake for President Trump to nominate Bill Otis to the Sentencing Commission, because he was unconfirmable."
Posted by: Curious | Apr 2, 2022 7:43:45 AM
Brett Miller --
It sure looks like you believe the old refrain, "Nobody's bad, everybody's just sick." But that's just not true; indeed it's absurd. Greed and malice have nothing to do with crime?? Do you really believe that?
"If society can prevent lower level crimes by providing housing, food, and transportation, I believe that would be money well spent."
That does not answer the question whether society OWES it to criminals to pay their bill for them. Does it? Nor is it correct taken on its own terms. Between 1960 and 1990, spending on social programs exploded as never before, but crime, including low-level property crime, went way, way up. If your thesis that social spending reduces crime were correct, we would have seen the opposite.
Posted by: Bill Otis | Apr 2, 2022 3:16:36 PM
Bill -
Let's face it, most criminals started off life as victims of some trauma extremely early on - parental abuse, neglect, brain damage and so on - and this fact should be considered (not excused) when judging somebody. An acknowledgment of this fact and the fact would make us a more humane society and before "locking up and throwing away the key" society should make efforts to redirect people and help them recognize their potential. I wish you would stop being a "better educated Archie Bunker" and recognize this reality. Brett Miler
Posted by: Brett Miler | Apr 2, 2022 4:32:12 PM
Brett Miller --
But isn't it true that, between 1960 and 1990, spending on social programs exploded as never before, while crime, including low-level property crime, went way, way up? And doesn't that three decades of evidence disprove your idea that more social spending will reduce crime? We had much more social spending and much MORE crime.
Posted by: Bill Otis | Apr 2, 2022 4:57:41 PM
Brett Miller --
"I wish you would stop being a 'better educated Archie Bunker'"...
That I can help with -- I'll stop being better educated.
Posted by: Bill Otis | Apr 2, 2022 5:06:34 PM
Bill -
I appreciate the need to protect society - I just take issue with your camp's (tough on crime) chronic insistence that to protect society we must incarcerate more and more people for longer and longer periods of time. I believe that, as the statement says, "unaddressed trauma and abuse create pipelines to incarceration" and to prevent incarceration and crime we should try to help people who suffer from long lasting abuse and trauma find ways to maximize their potential instead of simply locking them up when they inevitably commit crime - protecting society means locking up people (only as a last resort and only so long as necessary, in my view) and finding ways to integrate the disadvantaged into society. I read your posts on Crime & Consequences and you take the view that people are just good or evil - "greedy" - never recognizing the fact that people can be bad through no fault of their own (they are on a pathway to incarceration that starts early in life) and that incarceration often promotes a self-perpetuating cycle. I just wish you would attempt to be more nuanced in your viewpoints of crime and incarceration. Thank you for reading to and responding my posts. Brett Miler
Posted by: Brett Miler | Apr 2, 2022 5:18:34 PM
The old adage of "correlation is not causation" may apply here. Mr. Otis seems to infer or at minimum hypothesize that there exists a causal connection between the onset of social spending/liberal social programs and a rise in crime (see Otis response to Brett Miller supra).
In my opinion and experience, high amongst the causal factors leading to a rise in crime rates (1960-to the present) was the sudden and dramatic onset of drug use by a large portion of the youth of America (13 to 30 yrs. +/-) starting in about 1963-64.
As we all know, in response the Republicans/Nixon Admin. instituted the infamously flawed public policy known as "The War on Drugs". The "War" included the institution of draconian sentencing policies, and myriad debilitating collateral consequences stemming from the convictions. This, along with wide-spread poverty in minority populations, limited access to education, voting disenfrachisement, and racial discrimination in employment practices, permeated this segment of society (and continues to the present although some progress has been made). These conditions, in my opinion, contribute to and even exacerbate criminal behavior in some (certainly not all).
While these social ills may exist, Mr. Otis'point of taking personal responsibility for one's behaviors is appropriate and correct.
However, incarceration for extended periods of time in over-crowded warehouses is not a very effective method of teaching "pesonal responsibility", and for a signficant portion of those sentenced to prison, fails to affect permanent behavioral change. High recidivism rates seems to prove this point.
For those wrongdoers who seek rehabilitation (pre- or post-incarceration), there is a higher rate of success in privately run programs as opposed to the government's penetentiary/punishment/deterrence model.
Isn't it more likely that crime rates would have gone far higher if not for the institution of private rehabilitation programs, liberal reforms, increased social spending and the passage of liberal public policies such as the Civil Rights Act, etc.?
Posted by: Drug Cnslr | Apr 2, 2022 8:45:43 PM
