Sentencing Law and Policy

A comment on comments seeking again to encourage on-topic, productive and polite comments

About a week ago, a commentor started a comment this way: "Wow. Every single time I look at comments in hopes of more insight into the main subject, all I get is a handful of cheap shots at the political parties."  Another comment today notes: "Again, this conversation devolved into politics-related mud-slinging."  Meanwhile, someone has impolitely started using the same moniker as a frequent commentor, while another person reasonably complains about the "tag graffiti" taking up comment space.  

For a host of reasons, I am exteremely disinclined to moderate the comment space.  Consequently, I am inclined to close the comment space altogether if there is not a greater effort by folks to only post comments that are on-topic, productive and polite.  Especially in these divisive times, I know some folks are very eager to vent their partisan spleens.  But there are so many other spaces for off-topic, partisan sniping.  Consequently, I hope all folks commenting here will make a sincere effort to only post comments that are on-topic, productive and polite.  

Especially since I blog about politics as well as policy, I do not expect or want all comments to be free of all political matters or even that all comments are without some partisan views.  But I do want everyone to make a sustained effort to only post comments that are on-topic, productive and polite.  I believe everyone can and should do better (myself included), and I sincerely hope that you all will try.

"Algorithms in Judges’ Hands: Incarceration and Inequity in Broward County, Florida"

The title of this post is the title of this article recently posted to SSRN authored by Utsav Bahl, Chad M. Topaz and others. Here is its abstract:

Judicial and carceral systems increasingly use criminal risk assessment algorithms to make decisions that affect individual freedoms.  While the accuracy, fairness, and legality of these algorithms have come under scrutiny, their tangible impact on the American justice system remains almost completely unexplored.  To fill this gap, we investigate the effect of the Correctional Offender Management Profiling for Alternative Sanctions (COMPAS) algorithm on judges’ decisions to mandate confinement as part of criminal sentences in Broward County, Florida.

Our study compiles a novel dataset of over ten thousand court records from periods before and after the implementation of COMPAS in Broward County and uses it to build a Directed Acyclic Graph (DAG) model of the confinement decision-making process.  Our approach aims to reveal potential associations between the use of COMPAS and incarceration.  We find that the many individuals deemed low risk by COMPAS are much less likely to be confined than were comparable individuals before COMPAS was in use, and similarly, individuals deemed high risk are much more likely to be confined than before.  Overall, the impact of COMPAS scores on sentencing decisions is a reduced rate of confinement for both Black and white individuals.  However, a racial bias exists within the COMPAS scores, as they are based on historical data that mirrors pre-existing racial inequities.  While the overall rate of incarceration decreases, the difference in scores exacerbates the difference in confinement between racial groups, thereby deepening racial disparity.  Insofar as criminal risk algorithms can aid decarceration, policymakers and judges alike should be mindful of the potential for increased racial inequity.

US Sentencing Commission schedules big meeting for August 8, 2024 to vote on retroactivity and priorities

As detailed in this official announcement, two weeks from today is the scheduled date for a big official public meeting for the US Sentencing Commission to take big votes on two sets of important issues. Here is the full announcement:

Pursuant to Rule 3.2 of the Rules of Practice and Procedure of the United States Sentencing Commission, a public meeting of the Commission is scheduled for Thursday, August 8, 2024 at 3:00 p.m. (EDT) (tentative). The meeting will be held in the Commissioner’s Conference Room of Suite 2-500 in the Thurgood Marshall Federal Judiciary Building, One Columbus Circle, N.E. (South Lobby), Washington, D.C. The meeting will be streamed live. 

Agenda:

• Report of the Chair
• Possible Vote to Adopt April 2024 Meeting Minutes
• Possible Vote on Final 2024–2025 Policy Priorities
• Possible Vote on Retroactivity of Certain 2024 Amendments
• Adjourn

Notable Third Circuit panel ruling finds ineffectiveness in erroneous sentencing plea advice

A helpful reader alerted me to a new panel ruling from the Third Circuit in Baker v. US, No. 23-2059 (3d Cir. July 25, 2024) (available here). The start of the extended opinion highlights why it seems to me notable:

Following a robbery of the First Atlantic Federal Credit Union in Neptune, New Jersey on January 13, 2010, federal prosecutors charged Steven Baker with bank robbery and using a firearm during the robbery, the latter in violation of 18 U.S.C. § 924(c).  They offered Baker a plea agreement, under which he would plead guilty to those two charges and also admit to, but not be charged with, the commission of two other bank robberies while using a firearm.

It was here the problems at the heart of this appeal began.  Baker’s counsel advised him that he faced a total of 1517 years’ imprisonment if he accepted the plea and that, if he did not accept it, the Government would also charge him in connection with the two other armed bank robberies.  As to the three potential Section 924(c) counts, his counsel told him that he faced a consecutive term of 21 years’ imprisonment.  In fact, he faced a consecutive 57-year mandatory minimum sentence under the statute’s “stacking” provision then in effect.  After receiving this highly inaccurate advice, Baker turned down the plea, was charged in connection with the other robberies, and proceeded to trial, where he was convicted on all counts.  His sentence was 57 years on the Section 924(c) counts plus 87 months on the bank robbery charges.

Baker filed a direct appeal, and we affirmed the judgment and sentence.  United States v. Baker, 496 F. App’x 201, 206 (3d Cir. 2012), cert. denied, 568 U.S. 1148 (2013).  He then filed a Section 2255 federal habeas motion, arguing that his counsel was constitutionally ineffective for severely miscalculating his sentence exposure as he weighed the plea offer. 28 U.S.C. § 2255.  The District Court denied relief, determining Baker could not show prejudice.

Considering the significant disparity in Baker’s comparative sentence exposure between accepting the plea offer and going to trial and crediting his testimony that he would have accepted the plea agreement but for his counsel’s error, we conclude that Baker has demonstrated prejudice.  Thus, we reverse and remand.

"Incarceration Reimagined: A Diversionary Option for Serious Felony Offenders"

The title of this post is the title of this new article authored by Jane Mitchell now available via SSRN. Here is its abstract:

In today's polarized political climate, criminal justice reform remains one of the few issues that spans partisan divides. Voices from across the political spectrum agree: the United States needs a new approach to incarceration.  Our current system of mass incarceration is costly, ineffective, and inequitable.  It perpetuates intergenerational cycles of crime and poverty and pushes communities deeper into destitution.

This Article proposes a radically new approach. It presents a diversionary alternative-to-prison model for people facing serious felony charges — the majority of the prison population today.  The approach calls on courts to divert felony offenders away from prison toward 501c3-run campuses.  Instead of going to prison, offenders live and learn at a residential campus for one to three years.  While there, they engage in a holistic, evidence-based program targeting their individual needs.  In exchange for completing the program, participants have their prison sentences suspended and records expunged.  Participants return home with the skills, mindsets, and support networks needed to succeed in modern society.  Critically, government agencies hold campuses accountable for outcomes using an administrative structure similar to that used by high-performing urban charter schools — incentivizing stakeholders to reduce recidivism and alleviate poverty.

After laying out the model on paper, this Article presents a case study of The Reset Foundation ("Reset"), a non-profit organization I launched to pilot the model in the San Francisco Bay Area from 2013 to 2018.  Reset's experience suggests the model is a potentially powerful one for diverting felony offenders away from prison toward better life outcomes: with its first cohort of ten students, Reset eliminated ninety years of prison time.  The case study simultaneously shows the complexities and challenges of implementing a model as comprehensive and systemic as this.  To increase the chances of successful adoption, the public sector should instigate this work, not the non-profit sector, with significant support from local communities.

Latest CCJ accounting covers "Crime Trends in U.S. Cities: Mid-Year 2024 Update"

The Council on Criminal Justice (CCJ) today released its latest accoutning of recent crime trends through this new report titled "Crime Trends in U.S. Cities: Mid-Year 2024 Update." Here are the encouraging essentials from the the report's "Overview":

This study updates and supplements previous U.S. crime trends reports by the Council on Criminal Justice (CCJ) with additional data through June 2024.  It examines monthly crime rates for 12 violent, property, and drug offenses in 39 American cities that have consistently reported monthly data over the past six years.  The 39 cities are not necessarily representative of all jurisdictions in the United States.  Not all cities reported data for each offense...; trends in offenses with fewer reporting cities should be viewed with caution. In addition, the data collected for this report are subject to revision by local jurisdictions.

Eleven of the 12 offenses covered in this report were lower in the first half of 2024 than in the first half of 2023.

Looking at violent offenses, the number of homicides in the 29 study cities providing data for that crime was 13% lower — 319 fewer homicides — during the first half of 2024 than in the first half of 2023.  There were 7% fewer reported aggravated assaults and 18% fewer gun assaults in the first half of 2024 than during the same period in 2023. Reported carjacking incidents fell by 26% while robberies and domestic violence incidents declined by 6% and 2%, respectively.

Motor vehicle theft, a crime that has been on the rise since the summer of 2020, continued its upward trajectory through 2023.  That trend reversed in the first half of 2024, however, as there were 18% fewer motor vehicle thefts compared to the first half of 2023.

Reports of residential burglaries (-14%), nonresidential burglaries (-10%), larcenies (-6%), and drug offenses (-2%) all decreased in the first half of 2024 compared to the first half of 2023. But rates of reported shoplifting, a crime that has received extensive attention from the media and policymakers, increased by 24% over the same period.

Overall, most violent crimes are at or below levels seen in 2019, the year prior to the onset of the COVID pandemic and racial justice protests of 2020.  There were 2% fewer homicides during the first half of 2024 than during the first half of 2019 and 15% fewer robberies.  Aggravated assaults and domestic violence incidents also are below levels seen five years ago.  Gun assaults were 1% higher during the first half of 2024 than during the first half of 2019, and carjacking, a crime that is relatively uncommon but began to spike shortly after the onset of the pandemic, was 68% higher.

Property crime trends have been mixed over the last five years.  There were fewer residential burglaries and larcenies but more nonresidential burglaries in the first half of 2024 than during the same period five years earlier.  Motor vehicle thefts more than doubled during the timeframe, while shoplifting is 10% higher.  Drug offenses remain below 2019 levels.

It is encouraging that rates of violent and property crime are trending in the right direction and are generally below historic peaks seen in the early 1990s, but many cities are still experiencing disturbingly high levels of homicide and motor vehicle theft.  To achieve long-term reductions, local, state, and federal governments, along with communities and industries, must adopt evidence-based crime prevention efforts.  Additionally, improvements to the nation’s crime data infrastructure are essential to better equip policymakers with timely, accurate, and usable data needed to effectively address community violence and other crime.

Reviewing recent developments as more states consider second-look sentencing reviews

Stateline has this new piece on the growing interest at the state level of second-look sentencing reviews.  The piece is worth a full read, though its themes are summarized in the full headline: "Efforts to release prisoners from long sentences draw new interest: But many of the proposed policies have failed this year."  Here are a few excerpts (with links from the original):

As America’s prison population both ages and increases, the “second look” movement has gained interest as a way to reduce overcrowding and potentially save money. Both Republicans and Democrats have sponsored the bills, but some advocates and prosecutors say the laws could retraumatize crime victims and further burden a strained court system.

Still, at least one second look bill, in Oklahoma, was signed into law this year. The new law, which is set to go into effect soon, requires judges to consider whether domestic violence was a mitigating factor in a crime. If so, a defendant would be eligible for a lighter sentence compared with the usual mandatory ranges....

Some sentencing experts and criminal justice advocates think second look legislation could draw bipartisan support because the measures aim to address prison overcrowding and overspending by releasing people who are least likely to reoffend.

“It can be a way to address excess spending,” said Liz Komar, sentencing reform counsel with The Sentencing Project, a nonprofit criminal justice research and advocacy group. “We can reinvest scarce public safety dollars from being uselessly employed to keep people who are zero risk in prison to instead prevent crime in the community.”

At least 12 states already have second look measures in place, according to the group’s legislative tracker. The existing second look laws vary, with some allowing courts to reconsider sentences based on conditions such as an offender’s age at the time of the offense and amount of time served, and others allowing prosecutors to request the court reconsider a sentence....

Debate over second look policies has been intense. Some prosecutors, victim rights groups and family members of crime victims have voiced concerns that victims and their families could be retraumatized by the resentencing process.

Some fear that these policies could be abused. Others worry about overburdened prosecutors having to handle an influx of resentencing cases.

"COVID-19 and the New Pains of Imprisonment"

The title of this post is the title of this new article recently published in The British Journal of Criminology authored by Veronica Horowitz, Synøve Andersen and Jordan Hyatt.  Here is its abstract:

As the COVID-19 pandemic upended life worldwide, prisons gained attention as epicentres for the virus. The focus was primarily on infections and death rates, often omitting the impact on incarcerated people.  This study draws on semi-structured interviews (n = 58) with men imprisoned throughout the pandemic.  Using and extending classic and contemporary theorizations of ‘the pains of imprisonment’, we find that official pandemic responses meant that (1) new, pandemic-related pains developed, (2) established pains changed in severity and took new manifestations, and (3) pains were experienced simultaneously and interactively.  Thus, the pandemic amplified, diversified and compounded the pains of imprisonment.  While most visible in the context of a large-scale crisis, these concepts provide an expanded, broadly applicable framing for future carceral scholarship.

The Sentencing Project releases updated fact sheet on "Incarcerated Women and Girls"

The Sentencing Project today released this updated six-page fact sheet titled "Incarcerated Women and Girls." The document has lots of data and graphics providing details of how and why "female incarcerated population stands almost seven times higher than in 1980." I recommend the full document, and here is some of its text:

Between 1980 and 2022, the number of incarcerated women increased by more than 585%, rising from a total of 26,326 in 1980 to 180,684 in 2022. While 2020 saw a substantial downsizing due to the COVID-19 pandemic, this trend reversed with an 18% increase in 2022....

The rate at which women are incarcerated varies greatly from state to state. At the national level, including both state and federal imprisonment, 49 out of every 100,000 women were in prison in 2022. The state with the highest rate of female imprisonment is Idaho (132) and the state with the lowest incarceration rate of women is Massachusetts (7).

Women in state prisons are more likely than men to be incarcerated for a drug or property offense. Twenty-five percent of women in prison have been convicted of a drug offense, compared to 12% of men in prison; 19% of incarcerated women have been convicted of a property crime, compared to 13% among incarcerated men.

The proportion of imprisoned women convicted of a drug offense has increased from 12% in 1986 to 25% in 2021.

US Sentencing Commission releases over 1200 pages of public comment on proposed priorities

As noted in this post last month, the US Sentencing Commission recently released a "Federal Register Notice of Proposed 2024-2025 Priorities" which suggested that the USSC was eager in this coming guideline-amendment year to take a "big-picture" look at the full fedeal sentencing system and the Commission's own work therein.  Lots of folks rightly understood that the Commission was seeking lots of input, and many responded to its request for comment.  And now the USSC has published those public comments, which in full pdf compilation runs over 1200 pages, in an accessible manner at this webpage and explained this way:

The July 2024 Compilation of Public Comment uses bookmarks as its table of contents.  A bookmark is a navigation link that displays in the side panel within Adobe Acrobat (example).  Some browsers open the bookmarks panel by default within the browser window.  If you cannot access the bookmarks panel within the browser window, it is recommended that you save the PDF and reopen it in Adobe Acrobat for easier navigation.

The Commission reviews and catalogs all public comment submissions for future reference and official recordkeeping purposes. A representative sample of public comment is carefully selected, redacted, and posted online to provide the public with the kind of information considered by the Commissioners during their deliberations. 

User Tips for Mobile Devices: The Compilation of Public Comment is over 1,200 pages and more easily navigated on a desktop.  Hyperlinks below may not take mobile users to a specific letter and the bookmarks panel may not be accessible on mobile devices. 

I believe I am partially responsible for a few dozen of these many pages of comments, and I am hopeful in the coming weeks and months to flag a wide range of comments that seems especially interesting or perhaps surprising.  In the meantime, I will just say again that the Commission merits great credit for thinking big about federal sentencing and for encouraging the public to help in that endeavor.

Prior recent related post:

• US Sentencing Commission sets out broad, general request concerning proposed priorities for 2024 to 2025 amendment cycle

"Loper Bright and the Great Writ: Will the New Constitutionalists End 'Treason to the Constitution,' Restore the Judicial Power, and Make the Law of the Land Supreme Again?"

The title of this post is the title of this notable new paper authored by James Liebman and Anthony Amsterdam. Here is its abstract:

Chevron deference is dead.  The Court's forty-year, seventy-decision experiment with Article-III-court deference to "reasonable" agency interpretations of ambiguous federal statutes failed, killed in part by concern that it unduly curbed "the judicial Power" to enforce the rule of law in the face of politics, partisanship, and mission-driven agency decisionmaking. "AEDPA deference" lives.  The Court's twenty-five-year, seventy-two decision experiment with Article-III-court deference to "reasonable" state-court interpretations of the Constitution under the 1996 Antiterrorism and Effective Death Penalty Act continues to relegate criminal defendants to prison or death, notwithstanding federal habeas judges' independent judgment that the state courts have misread or misapplied the federal Constitution in adjudicating these defendants' claims.

How can this be?  Only if state judges have more authority to make constitutional law by which federal judges may be bound than federal agencies have to make sub-constitutional law by which federal judges may be bound.  This is obviously wrong.  Federal agencies are creatures of Congress to which it may appropriately delegate some of its power to make the law that federal courts then are duty-bound to apply.  Neither Congress nor any other authority save the American people by amendment may delegate the making of constitutional law.  Constitutional text and history make the wrongness even clearer.  The Framers wrote the Constitution precisely to quell the "violence of faction" that the States exhibited under the Articles of Confederation.  They understood faction to produce "improper Verdicts in State tribunals obtained under the biassed directions of a dependent Judge, or the local prejudices of an undirected jury." So the Framers resolved to bind "the judges in every State" to treat the Constitution as the supreme Law of the Land; and the Framers gave federal judges-protected by life tenure and irreducible salaries-"the judicial Power" to neutralize factious state-court decisions by exercising independent judgment whenever Congress gave them jurisdiction to review those decisions.

Congress, for its part, has always mandated federal-court as-of-right review of state custody on either writ of error (1789-1914) and/or habeas corpus (1867-today). And throughout more than two-and-a-third centuries, the Supreme Court has issued one federal-courts classic opinion after another, characterizing deference to Congress' or state courts' reasonable-but-wrong constitutional judgments as "treason to the Constitution."  The New Constitutionalists successfully challenged Chevron under the banner of reasserting the rule of law to protect "small" businesses and "the citizenry" against politics and special interests.  The test of their bona fides is whether they will take the same course in cases of individuals criminally sentenced to imprisonment or execution through "improper Verdicts in State tribunals obtained under the biassed directions of a dependent Judge, or the local prejudices of an undirected jury."

Detailing backstories around effort to roll back key criminal justice reform aspects of California's Prop 47

The New York Times has this new extended article providing a lot of context (but not a lot of legal details) for the ballot measure coming before California voters to revise significantly a criminal justice reform proposition from a decade ago.  The full headline of the article details its themes: "Frustrated Californians May Be Ready for a Tougher Approach to Crime: Shoplifting and fentanyl use have tested the patience of California voters, who will decide in November whether to impose stricter laws that would lead to more incarceration."  I recommend the piece in full, and here are snippets:

Californians of all political stripes have become fed up with the problems plaguing supermarkets and retail stores, not to mention car break-ins and open-air drug use.  Some top Democrats, including Mayor London Breed of San Francisco, have joined conservatives in denouncing a cascade of smaller crimes that have contributed to a sense of lawlessness in major cities. Now the state’s lawmakers and voters are weighing what to do.

With public sentiment in the state shifting toward stiffer punishment, California finds itself debating whether to roll back decade-old changes that sharply reduced the state’s inmate count and made it a leader in reducing mass incarceration.

A coalition of law enforcement figures, business owners and relatives of fentanyl addicts want to reverse the 2014 ballot measure known as Proposition 47, which reduced penalties for shoplifting and drug possession.  That measure has been blamed so often for the state’s crime woes that it is among the few past initiatives that residents can identify by number.... With financial help from the giant retailers Target, Home Depot and Walmart, the coalition has gotten a ballot measure qualified for the November election that would impose harsher punishments for crimes that result in lighter charges or no prosecution today.

Proposition 47 reduced most drug-possession crimes to misdemeanors, and raised the threshold for thefts to be charged as felonies, to $950 in property or more.  The measure allowed people to get out of prison early if they were incarcerated under the old laws, and it reduced the number of people sent to prison.  It also funneled hundreds of millions of dollars to services for people returning home from prison, helping to reduce the rate of recidivism, according to a study by a state regulator....

The fate of Proposition 47 will be decided by California’s nearly 27 million eligible voters in November. Nearly a million people signed a petition to amend Proposition 47 by imposing tougher sentences for shoplifting and drug possession.

"U.S. Sentencing Commission Launches Interactive Resources to Illustrate Federal Prison Program Implementation"

The title of this post was the heading of an email I received this morning from the US Sentencing Commission, which came with this text and links:

The U.S. Sentencing Commission has released its second of two interactive resources providing an overview of certain Federal Bureau of Prisons (BOP) programs. These resources are aimed at policymakers, stakeholders, and the public who are interested in learning how the BOP administers the Residential Drug Abuse Treatment Program and implements the First Step Act of 2018’s earned time credits system.

Today's new resource illustrates the Residential Drug Abuse Treatment Program (RDAP), an intensive cognitive behavioral therapy program offered in some BOP facilities. It describes how RDAP participants may be eligible for and earn up to one year off their terms of imprisonment. Additionally, the resource features an interactive map of RDAP locations and program types.

Launched in January, the Commission’s first interactive BOP resource describes the implementation of the earned time credits system under the First Step Act. It outlines how incarcerated individuals may earn and apply time credits for engaging in recidivism reduction programming or productive activities. The resource also includes a glossary of terms and searchable table of offenses that prevent individuals from earning time credits under the First Step Act.

Last amendment cycle, the Commission prioritized assessing the degree to which certain practices of the BOP are effective in meeting the purposes of sentencing as set forth in 18 U.S.C. § 3553(a)(2). Both resources were published as part of this policy work. They are based on primary source documents from other government agencies, including the BOP, and are intended for informational purposes only (not as legal analysis).

Kudos to the USSC for continuing to provide ("for informational purposes only") these terrific and valuable resources.

UPDATE:  I just saw this new Forbes piece discussing the new USSC resources, headlined "US Sentencing Comm Launches Overview Of Bureau Of Prisons Programs"

Some recommended crime and punishment Substack (beach?) reading

Because I am going to be on the road for much of the next few weeks, I am not sure about how much blogging time I will have.  But I am sure I am hoping to catch up on some beach reading during this time; for a nerd like me, that means catching up on some long SCOTUS rulings and some law review articles.  It might also mean, in this digital day and age, some commentary on Substack.  As noted here a few weeks ago, I recently helped create a Substance place and space for sentencing discussions titled Sentencing Matters Substack, and I did so in part because I had seen a few other folks use the venue for some longer form crime and punishment commentaries.  To that end, I thought I'd round up a few recent posts of notes from these substack spaces:

From Sentencing Matters, "Envisioning a second-look sentencing agenda for the US Sentencing Commission"

Also from From Sentencing Matters, "Is it Time for the U.S. Sentencing Commission to Issue a Detailed, Written, and Reasoned Opinion on When it Applies Guideline Amendments Retroactively?"

From External Processing, "How I Learned to Stop Worrying and Love the Crime Decline"

Also from External Processing, "The Incredible Disparity in Firearms Homicide Victimization"

From Jeff-alytics, "Growing Evidence That Murder Fell At A Record Pace In 2023"

Also from Jeff-alytics, "Crime Data Needs a Statcast Era"

This limited list of Substacks not only highlights some of my favorite reads, but also that I could use some more recommendations in this space.  So if folks have favorite crime and punishment reads, please consider sharing in the comments.

UPDATE:  Here is one more just posted to Sentencing Matters, "Can Machine Learning Bring More Diversity – and Maybe Some New Thinking and Insights Too – to the U.S. Sentencing Commission?"

Could Prez Biden's decision "to stand down" impact his use of his clemency power?

There are, of course, so many political and policy elements to President Joe Biden's decision to end him campaign for re-election or, as he put it, "to stand down and to focus solely on fulfilling my duties as President for the remainder of my term."  But, as this is a sentencing blog, I am particularly interested in considering the possible impact on sentencing politics and policy.  And the unique and historic sentencing power that all presidents possess is the constitutional power to grant clemencies or, as Article 2 of the Constitution puts it, the "Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment."

This Axios piece from last week, headlined "Why presidents are wielding their pardon powers less and less," talked a bit about some modern clemency realities, and here are some excerpts:

A trend toward a less generous executive has emerged in U.S. clemency history.  So far, President Biden has been no exception....  But beyond sweeping proclamations, Biden has used his pardon power more sparingly than his modern predecessors on ordinary pardon cases, according to Justice Department data... Biden used them to pardon prior federal offenses of simple marijuana possession and veterans convicted and forced out of the military because of their gender identity or sexual orientation.

The big picture: Experts point to structural and political reasons for the shift toward a generally more restrained approach to clemency petitions.

Throughout U.S. history, the system has become deeply entangled in bureaucratic process, leading to a backlog of ordinary petitions, said Mark Osler, a legal scholar who advocates for sentencing and clemency reform.  What "Biden seems to be stuck with is a system of analysis that doesn't work and hasn't worked for his predecessors either," Osler said.  He pointed to a series of seven valves of review a petition must pass through — a pipeline Osler said lengthened under the Biden administration with additional input from the Domestic Policy Council.

Frank Bowman, a legal historian who has written extensively about the pardon power, cited the "nasty politics of our era" as one driving factor.  "Presidents have become hyper-cautious about making sure that they don't create the grist for the opposition mill," Bowman said.

By the numbers: President Obama granted the most acts of clemency — 1,927 pardons and commutations combined — dating back to Harry Truman, according to DOJ data.  But that's just over 5% of the petitions Obama received. As of May 2024, Biden had formally granted 153 petitions for clemency — that's 1.6% percent of all requests....

DOJ data shows that every president between Ford and Trump used his clemency power during his final days in office. Obama issued 1,185 clemency actions in just over three months in 2017 before he left office.  That's just over 61% of all of the petitions he approved.

The political concern about "creat[ing] the grist for the opposition mill" seems likely to limit Prez Biden's eagerness to grant many (or perhas any) clemencies before Election Day because his party is on the ballot, even though he is now a distinctive kind of lame duck.  But, as noted here (and likely forgotten everewhere else), in late October 2020, then-President Trump granted a few commutations a few weeks before the 2020 Election, and it is certainly possible that certain kinds of clemency grants might be seen in certain quarters as politically beneficial as the election approaches.

More obviously, after Election Day and no matter who wins, Prez Biden will be an even lamer kind of lame duck until January 20, 2025.  I presume a whole lot of advocates will be advocating for Prez Biden to make robust use of clemency at that point.  Notably, Prez Biden's son, Hunter Biden, is supposed to be go to trial on federal tax charges on September and to be sentenced on gun-related charges sometime thereafter.  When still a candidate a month ago, Prez Biden pledged not to grant a pardon or commutation to his son.  But I am inclined to guess his views may evolve on his son, especially after the election.  And more broadly, in his final months in office, I wonder if Prez Biden might be inclined to consider a broader set of potential set of clemency grants across a broad range of offenses and offenders.  I guess time will tell.