« "An Algorithmic Assessment of Parole Decisions" | Main | Split Iowa Supreme Court finds Sixth Amendment jury trial rights apply to (unique?) state law restitution provision »
April 15, 2022
Justice Department has new Pardon Attorney who is a former public defender ... which means ...?
I was pleased last night to see this great Twitter thread from Mark Osler spotlighting that the US Department of Justice this week officially has a new Pardon Attorney. As this new DOJ bio details, she is Elizabeth (Liz) G. Oyer who before her Justice Department appointment served as "Senior Litigation Counsel to the Office of the Federal Public Defender for Maryland, where she represented indigent defendants at all stages of proceedings in federal district court [and] handled a wide variety of criminal cases, ranging from complex fraud to drug and gun offenses, as well as violent crimes." Professor Osler, who is a leading national expert on federal clemency, has lots of good background in his thread about the appointment, and I am hopeful he does not mind my highlighting some of his key points here:
We've had "Acting" pardon attorneys for the past five or six years, so it means something that Pres. Biden has actually filled this slot. It's also significant -- and positive -- that he has given a career defender an important job in the Department of Justice.
However, this doesn't "fix" the backlog of petitions -- or promise a future fix of the backlog -- because it appears the problem there may not have been the Pardon Attorney, but the bureaucracy that takes up the petitions after they are evaluated by the pardon attorney (DAG & WHC)....
There are over 18,000 pending petitions, many of them now years old (including unresolved petitions from the Obama administration). It's a mess. We just know what kind of mess, or where the mess is located. The whole thing needs reform.
For a host of reasons, I am eager to see the federal clemency process completely removed from the Department of Justice, and so I support the FIX Clemency Act, discussed here, and other proposals to have an independent body assist the President in his exercise of his constitutional clemency authority. But as long as the current messy structure remains in place, it is encouraging to see that an experiences defense attorney has been placed into this important role. As ProPublica highlighted a decade ago, a DOJ Pardon Attorney eager to find reasons not to recommend clemency grants can really muck up the process in ugly ways. I am inclined to believe a former public defender is going to be more eager to find reasons to recommend grants.
in the end, none of this means much if Prez Biden (and anyone advising him on these matters) is disinclined to make use of the constitutional clemency authority. Of course, candidate Joe Biden promised to "broadly use his clemency power for certain non-violent and drug crimes." But, a full 15 months into his administration, Prez Biden has not granted a single pardon and has not granted a single commutation. With more than 18,000 applications pending, not to mention many low-risk, COVID-vulnerable persons released to home confinement by the Trump Administration, it ought not be that hard to find at least a handful of "non-violent and drug" offenders who deserving of clemency during Second Chance Month. Whomever is in charge of the matters at DOJ, where these is a clemency will there is surely a clemency way. As of now, though, it does not appear that Prez. Biden really has much of a clemency will.
A few on many prior recent related posts:
- FIX Clemency Act introduced in US House seeking to fix broken federal clemency process
- "Would an independent commission solve the clemency backlog?"
- How about Prez Biden and lots of Governors starting a tradition of granting lots of clemencies around Mother's Day?
- "When Will Joe Biden Start Using His Clemency Powers?"
- Lamenting "Biden's do-nothing approach to clemency" as we approach holiday season
- Clemency criticisms as Prez Biden's record is now turkeys 2, humans 0
- Another reminder that Prez Biden has so far decided to forget using his clemency powers
- A second chance for Prez Biden to follow his proclamation about Second Chance Month with some clemency grants
- New Federal Sentencing Reporter issue considers "After Trump: The Future of the President’s Pardon Power"
April 15, 2022 at 11:13 AM | Permalink
Comments
I don’t think the pardon mess can be solved without bringing back parole at the federal level. Doug is of course correct that the body that recommends pardons & commutations to the president should not be part of the DOJ. But I cannot imagine presidents being eager to exercise this power generously, no matter who the suggestions come from. It is just too politically risky.
With a parole system, there would be a body that had the power to release over-sentenced prisoners with no action by the president being required. The president's commutation power would then be a last resort, rather than the only resort.
Posted by: Marc Shepherd | Apr 15, 2022 2:14:42 PM
The infrastructure of the U.S. Parole Commission has essentially been retained by the D.C. Parole Board, which still operates. While Federal prisoners lost the right to be considered for parole after 1988, D.C. defendants (who were sent into the Bureau of Prisons after Lorton Reformatory (located in Virginia) was closed down in 2000. In the years since 2000, the number of "Old Law Inmates" (sentenced before 1988) who were still entitled to be considered for parole has dwindled to fewer than 100. If Congress were to reauthorize parole for Federal criminal defendants, then the infrastructure of the D.C. Parole Board could be used to quickly implement the new law. It's a viable idea, and that infrastructure has been carefully preserved for years.
Posted by: Jim Gormley | Apr 15, 2022 8:43:53 PM
