Bad News, Criminal Justice Reformers: Biden Probably Wants Sally Yates for Attorney General

Granting clemency to nonviolent offenders like Alice Marie Johnson would be low on the list of priorities for Yates and Biden.

Joe Biden claims to strongly back criminal justice reform, but that's hard to square with his record. In his time in the Senate, the Democratic presidential nominee helped write bills that flooded police departments with cash and cemented the harsh mandatory minimum sentences that filled America's prisons. For decades, he tried to outflank Republicans on crime, adopting a bellicose stance rivaling Richard Nixon's. Indeed, in a 1994 speech he directly likened himself to Nixon, bragging that he didn't think, as some of his colleagues did, that the call for "law and order" should be accompanied by "justice."

"Every time Richard Nixon, when he was running in 1972, would say 'law and order,' the Democratic match or response was 'law and order with justice'—whatever that meant," Biden said. "And I would say, 'Lock the S.O.B.s up.'"

In the 2020 campaign, Biden has talked about curbing excessive sentences and promised to grant more clemencies, pointing to President Barack Obama's record on the issue. "President Obama used his clemency power more than any of the 10 prior presidents," a Biden policy paper reads. "Biden will continue this tradition and broadly use his clemency power for certain non-violent and drug crimes."

But Biden's post-election plans suggest that granting clemencies is not likely to be a priority. In addition to picking Kamala Harris, a former prosecutor with a controversial record, as his running mate, Biden is strongly considering former Deputy Attorney General Sally Yates for attorney general, people familiar with the process tell Reason.

Rachel Barkow, a professor at the New York University School of Law, thinks it's telling that Biden is considering Yates over Varnita Gupta, another qualified candidate whose history is far more appealing to civil libertarians.

"Varnita Gupta seems like an obvious candidate to me," Barkow says. "She ran the civil rights division addressing police abuses and other issues like the need for bail reform. Everything we'd want to see in a Biden-Harris administration that's actually committed to criminal justice reform."

It's obvious why Yates is on the short list. She shot to national prominence after President Donald Trump fired her, making her one of the first heroes of the #Resistance. And criminal justice reformers generally agree that she would be competent at her job—and a big improvement over William Barr, the current attorney general.

But Yates' Obama-era history at the Department of Justice (DOJ) is troubling, particularly where it comes to carrying out the former president's clemency initiative. That 2014 order directed the DOJ's Office of the Pardon Attorney to review long sentences for nonviolent drug crimes and make recommendations to the president.

In 2016—a year after Yates became deputy attorney general, two years after the launch of the clemency project—Pardon Attorney Deborah Leff sent Yates her letter of resignation. 

"I have worked tirelessly since day one to do all I can to make the initiative a success," she wrote. "But given that the Department has not fulfilled its commitment to provide the resources needed for my office to make timely and thoughtful recommendations on clemency to the President, given your statement that the needed staff will not be forthcoming, and given that I have been instructed to set aside thousands of petitions for pardons and traditional commutations, I cannot fulfill my responsibilities as Pardon Attorney."

Leff, who came from the nonprofit world, went on to criticize Yates for turning down recommendations and blocking the Pardon Office's access to White House counsel to contest her decisions. (The deputy attorney general has final say about what reaches the president's desk, regardless of the Pardon Office's recommendations.) "I believe that before making the serious and complex decisions underlying clemency, it is important for the President to have a full set of views."

"The letter made it clear that there was obvious tension between" Yates and Leff, says Mark Osler, a former prosecutor who now lobbies for criminal justice reform. "Yates was making decisions Debbie Leff didn't agree with." The tense dynamic isn't surprising. Leff was an insurgent devoted to serious reforms. Yates was a DOJ insider who had been a prosecutor for most of her professional career.

Leff ended her letter by noting that the lack of staff assigned to processing 10,000 petitions meant that "the requests of thousands of petitioners seeking justice will lie unheard."

Alice Marie Johnson, a 65-year-old grandmother, was one of the eligible prisoners whose application for clemency went nowhere. She was serving life without parole for her part in a drug conspiracy. She was a first-time, nonviolent offender. 

"I wish I could tell you why," she says. "I had 100 percent good conduct on my record, a letter from the warden, so much community support: 300 people signed the petition. I should have been a top candidate. The pardon attorney never tells you why you were denied. To this day I don't know why I was passed over."

Johnson's sentence was commuted by President Donald Trump after reality star Kim Kardashian West personally lobbied the president to free her. The story went viral, and the news cycle nearly exploded with mean-spirited glee. ("Trump Meets Rump!" the New York Post snarled.) Critics noted that Trump had undermined standard protocol. Criminal justice advocates countered that Johnson shouldn't have to die in prison because it bruised Democrats' egos for Trump to gloat about freeing Johnson when Obama hadn't.

Johnson, whose story has garnered international attention, is now devoted to helping others get out of prison.

 "I'm fighting hard for more clemencies to be granted," she says. She's got a list of names, all nonviolent drug prisoners like herself. Curtis McDonald, still serving life for the same drug trafficking conspiracy as Johnson. Lavonne Roach, a 55-year-old Sioux woman serving 30 years for a conspiracy to sell meth. William Underwood, 30 years into a life-without-parole sentence for a drug crime. Ferrell Scott, who started serving life without parole for a marijuana crime in 2008, the same year the U.S. elected a president who was frank about the fact that he used to smoke weed. "There are so many others," Johnson says.

Deborah Leff doesn't discuss her time in the Pardon Office with the press. But Larry Kupers, who served as deputy attorney in that office until he resigned in protest after Trump's election, is willing to reflect publicly on the hopes and disappointments of the clemency project.

"In 2014, the Clemency Initiative was announced with a great deal of fanfare by James Cole, the deputy attorney general under Eric Holder," Kupers says. A career defense attorney, Kupers was not a natural fit for the Justice Department. But he wanted to help free prisoners serving decades for nonviolent crimes due to mandatory minimums.

"I came to the DOJ only because there was a chance of getting fairer sentences for a whole class of federal defendants who to my mind were unfairly punished," Kupers says. "I wanted to see these sentences reduced."

Kupers acknowledges that large-scale clemency is politically risky and commends the Obama administration for introducing a policy that could have backfired easily. "Clemency is a dangerous political endeavor. For years, starting with Reagan, commutations have been very few and far between. Pardons are less risky because you've got somebody who's been out for 5 years and has demonstrated they can live without committing new crimes so it doesn't take a whole lot of courage. A commutation could lead to a Willie Horton scenario." Obama commuted the sentences of more than 1,700 federal inmates, a record number, though he waited until the final years of his second term to do so.

Kupers can't speculate about why any one petition was turned down. But he does acknowledge that the initiative got off to an extremely slow start. "The clemency initiative was announced with a great deal of fanfare by James Cole under Eric Holder and it got started but very slowly." That made it inevitable that in a time crunch, the small staff that Leff complained about in her letter would not be able to review even a fraction of petitioners including many, like Johnson, who fit the criteria.

"There were 180,000 people in federal prison during Obama's second term," David Menschell, a Portland-based defense lawyer and criminal justice reform advocate, says. "He granted clemency to like 1,700. That's less than 1 percent. Also, initially based on the criteria that Holder announced, people estimated that about 20,000 people would be eligible. 1,700 is a lot less than 20,000."

Given the lack of transparency, we don't know why a particular petition was denied. But Johnson has learned that her final bid for clemency under Obama was denied in January 2017, while Sally Yates was serving as interim attorney general.

"There are many different hands in the chain. Anyone could have thwarted the petitions. It's hard to say because the whole thing was shrouded in mystery and Yates didn't report who she spiked," Ostler says. "But there's no doubt she did give a negative view on a lot of petitions."

Ostler and Barkow both acknowledge that Yates began prioritizing clemency by the end of Obama's second term, but by then it was too late to process the record number of petitions.

Beyond any individual cases, Ostler points out that Yates shares one troubling characteristic with William Barr at a time that the criminal justice system needs a serious overhaul: "They didn't do what they needed to do to change the process at the DOJ."

"I think that Yates, by the end, got the message that it was a top priority for the president and did turn things up a bit at the end," Barkow says. "But we would have seen a far better clemency process if someone in that office were more open to clemency."

Barkow thinks Yates is qualified to serve as attorney general. But nominating her, Barkow fears, would be a signal that the incoming president is not fully committed to the drastic reforms the criminal justice system needs.

"It's important to have someone in that position who doesn't represent the interests of prosecutors," Barkow says. "Yates is a DOJ lifer—a prosecutor through and through."