But the White House has revealed little about its own plans. And lawyers and advocates still fear that Biden’s team does not have a comprehensive plan to deal with the huge backlog. Perhaps for good reason: A former Obama aide said that while Biden’s team is familiar with the clemency problems it faces, it has been very busy with nominations, executive orders and legislative proposals, including those aimed at tackling the coronavirus pandemic and the economy of craters.
“They couldn’t have had time to formulate a plan,” said the person.
More than 100 progressive groups working on criminal justice issues are asking Biden to revamp the arduous clemency process and start resolving cases immediately. One, the ACLU, launched an advertising campaign to pressure him to grant clemency to 25,000 people and to fulfill his promise to tackle criminal justice issues amid a national trial of racial injustice. Among those who met with Biden’s team are Cynthia Roseberry, deputy policy director for the Justice Division of the American Civil Liberties Union, and Nkechi Taifa, organizer of the Justice Roundtable, an umbrella organization in criminal justice matters.
“It is a grotesque case of government incompetence in a case where the stakes could not be greater,” said New York University law professor Rachel Barkow, a clemency expert who advocates change. “These are people who are currently incarcerated during a pandemic. … It would be bad in any case, but it is particularly blatant now. “
If backlog was the only obstacle that Biden faced on this front, it would be pretty scary already. But, days before Trump stepped down, the Justice Department also issued an underreported legal opinion authorizing the Bureau of Prisons to return the more than 7,000 prisoners confined to their homes during the coronavirus outbreak to federal prison. The Biden administration is expected to review and possibly terminate that opinion, but it was delayed because of the delay in confirming Biden’s choice of attorney general, Merrick Garland.
The way Biden acts on these issues, and how quickly he does so, will go a long way in determining the type of record he leaves on criminal justice reform issues. This legacy is currently mixed. Biden was criticized for helping to pass a series of bills against crime as a senator that disproportionately harmed black communities, but he adopted a progressive agenda as a presidential candidate and the success of his campaign was thanks in large part to overwhelming support from voters. black people.
“The time to find out how to do this should have been during the transition,” said Mark Osler, a former federal prosecutor who works as a professor of law at St. Thomas University in Minneapolis and is pushing for change. “The danger is that they will repeat the mistake that several previous administrations made of never focusing on it until it is too late and it is a mess.”
The White House did not respond to questions, but issued a statement. “President Biden has set an ambitious agenda to resolve the problems in our criminal justice system that have resulted in excessive imprisonment and judicial errors, and he has a talented team of lawyers working to examine clemency appeals to ensure that sentences are consistent with the values he articulated, ”said White House spokesman Michael Gwin.
The Justice Department referred questions to the Bureau of Prisons, which said it was reviewing legal opinion on the return of prisoners to prisons after the pandemic and had no other information.
In response to a question at a news conference last month, White House press secretary Jen Psaki said Biden would not follow Trump’s example in forgiveness. “It is not a model, I must say, of how President Biden would use his own power,” she said. She did not elaborate, except to note that the Justice Department would be treated as an independent agency – although the DOJ is charged with making recommendations to the White House in cases of clemency.
The constitution gives the president the power to “grant extensions and pardons for offenses against the United States, except in cases of impeachment”. This usually comes in the form of a commutation – which reduces or eliminates the sentence, but does not erase the sentence – or a pardon, which rules out all the legal consequences of a crime. Cases usually start in the Justice Department’s Pardon Attorney’s Office – which has only 11 lawyers – before being sent to the attorney general and the White House attorney’s office.
In modern history, presidents have treated clemency as an afterthought, giving it in the last few days, usually as a gift to friends and associates. Trump was no exception and took a step forward.
In most cases, Trump has bypassed the long process of various levels of leniency that has been conducted for more than a century. Instead, he made decisions through an ad hoc system in which politically connected allies and well-paid lobbyists tried to persuade him personally and on TV to use pardons to help friends and hurt enemies.
In total, Trump granted 237 pardons or commutations and denied 180 cases. Many of what he acted were in the headlines: ex-members of Congress, several people convicted in Robert Mueller’s investigation of Russia’s election interference in 2016 and security contractors convicted of the 2008 Iraqi civilian massacre. He did not act in thousands of other cases, leaving 13,750 behind for Biden.
But the current accumulation – the largest ever recorded, according to the Justice Department and experts – cannot be attributed to Trump alone.
Barack Obama waited well in his second term to act. When he urged federal prisoners to apply for leniency under his leniency initiative, which allowed some prisoners to defend the commutation of their sentences, petitions soared. He received more than 36,000 requests, the highest total of any president ever recorded. And he acted on historical value – more than 22,000 cases – granting leniency 1,927 times, including 212 pardons and 1,715 commutations.
But Obama did not take care of all the pending cases, leaving 13,000 of them behind when he left office. And when her last pardon lawyer, Deborah Leff, resigned in January of Obama’s senior year in office, she regretted that the clemency initiative did not have enough resources.
“In his clemency initiative, President Obama has concentrated significant resources on identifying prisoners, most of them people of color, who have been sentenced to excessive and draconian sentences,” said Neil Eggleston, who served as a lawyer at the Obama White House. “The president would have liked to clear the backlog of pending petitions, but the resources spent to achieve that goal would have resulted in fewer prisoners who were serving excessive sentences for relatively minor drug crimes being released.”
What can help Biden advance the issue more than his predecessors is the change in policy. In July 2015, a group of Republicans in the House rejected Obama’s initiative, complaining in a letter to the attorney general that “we are deeply concerned that the president will continue to use his pardoning power to benefit specific classes of offenders or for political purposes. “.
But Trump made nominal support for reduced sentences and criminal justice reform a problem for his re-election campaign, and Republicans in Congress followed suit.
Even the old guard Republicans expressed a desire for more leniency. In his memoirs, former President George W. Bush recalled that he shared his frustration with the pardon process with Obama in the limo on the way to his 2009 inauguration. He said that if he had advice, it would be to announce a pardon policy and I followed -over there.
Bush wrote that he was inundated with last-minute apologies from politically connected people who tried to circumvent the process. “At first, I was frustrated,” he wrote. “So I was disgusted. I started to see a huge injustice in the system.”
Obama’s advisers say they started talking about the process of forgiveness during the transition, but did not follow Bush’s advice because they had other priorities, including health. Advocates and lawyers expect Biden to learn the lessons of history and make clemency a priority for the first term.
“We hope it will break with what people have done in the past and do things at the last minute or as a gift,” said Roseberry. “Our position is that it should be used now and as much as necessary to correct all the errors that we now recognize in our previous criminal justice system. … It takes courage to do this this year. We are ready for that. It’s time. It’s past time. “
Biden did not campaign aggressively on the issue of leniency. But supporters of him and Senator Bernie Sanders (I-Vt.) Addressed the issue in their 110-page list of recommendations aimed at trying to unite the two camps before the November election. One of the main proposals put forward by the task force is also one of the priorities of criminal justice reform advocates: the creation of an independent clemency council.
The Biden-Sanders task force proposed a 60-person agency composed of people with diverse backgrounds to review the cases. The Democratic Party’s 2020 platform, likewise, has called for an independent clemency commission, removing the Justice Department case, which, some activists argue, is not suitable for submitting clemency recommendations to the White House, since it also processes cases.
Congressman Steve Cohen (D-Tenn.), Who chairs the House Judiciary subcommittee with jurisdiction over pardons, pressured Obama and Trump to issue more pardons. He said he plans to do the same for Biden.
“There are … more and more people in prison, and many of these people are there forever and there are long draconian sentences,” said Cohen. “They are basically wasting their lives, wasting the federal government’s finances … and destroying lives and families. It is a total loser, but we do that. “