Criminal Justice

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.

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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."

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  1. Unless the Democrats retake the Senate, that criminal bitch would never be confirmed as AG.

    1. Do you really think Basement Bunker Biden can win without taking the senate?

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  3. What did people expect? Biden is the biggest drug warrior ever. And he picked the biggest pro-incarceration person he could find for his VP.

    1. I wrote the libertarian case for Joe Biden to help you understand:

      “I don’t want my white liberal neighbors to think I’m a bad person”.

      I hope this helps

      1. Paragraph #2: I want to be invited to cocktail parties and work for a magazine funded by billionaire benefactors instead of consumers.

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  4. The real question is who does Kween Kamala want?

    1. As I’ve said repeatedly, the Klan seems to respect black folks dramatically more than woke progressives.

  5. Well, there’s only one clear choice for President and it’s not who you think!

    1. The whale-lover?

      1. John isn’t running

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      2. I’m still not gonna vote for your dad.

    2. “Well, there’s only one clear choice for President and it’s not who you think!”

      We can be certain it is no one you’d prefer.

  6. 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.

    Credit where it’s due unless it’s Trump.

  7. “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,”

    Couldn’t have been much of a priority if it took over a half decade to sort out.

    1. In Sally’s defense, she was busy spying on her boss’s political opponents.

  8. Sleepy Joe has to win the election first. That is not a sure thing (though the polling says he has a big lead). And then a POTUS Biden would need a senate willing to confirm Yates.

    If Team R retains the senate, Yates will never be confirmed.

    1. If Team R retains the senate, Yates will never be confirmed.

      I wouldn’t be so sure. You can always count on Team R to fuck things up.

      1. Agreed, if Trump loses, the GOP-e will be eager to show the Democrats how accommodating they can be.

        1. No, the rules changed since 2016. No Team R politician will be accommodating in the slightest.

      2. Yeah, congressional republicans do puss out a lot. It’s very frustrating.

  9. 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.

    I think it’s telling that anybody thinks Biden has any sort of say in who his cabinet is going to be. I’m sure that the Dems are going to pack it chock full of Obama re-treads to give their administration a veneer of “normalcy”. Meanwhile the lower-down agency heads and the real powers are all going to be full-on Marxists.

    1. If Biden is elected, it’s effectively just another Obama administration. He will have his hands rammed up his and Harris’ asses, running them like puppets.

      Metaphorically speaking.

  10. on the flipside, Biden’s never going to get to choose an Attorney General.

  11. ‘Bad News _____: Biden _____’ would probably be a handy template.

  12. Republican neocon warmongers support Biden.
    BushHitler’s cabinet supports Biden.
    Wall Street is giving to Biden 5:1 over Trump
    Corporate America is spending ad $$ on BLM and doing corporate “aniti-racism” initiatives.
    Bezos owns the Dem friendly WaPo.
    Gates, Buffet, etc are pro-left.

    At what point are the average libs in the street going to realize they’re being had? Harris may pack the courts and Senate, but won’t do it to create a paradise of equality. She’ll do it for the graft.

    1. Not to mention Biden’s track record re Sen Byrd, busing, crack vs. cocaine penalties, “racial jungle”, and Harris’ track record as a prosecutor.

    2. If most of the Bush administration supports the Democrat over the Republican nominee, maybe ask yourself what’s wrong with the Republican nominee.

      1. Name one war Biden has ever opposed in his forty something years in office. Just one

        1. And that’s why neocons, including those at this publication, support Biden.

          1. Just to clear up the confusion you seem to have, a huge number of Republicans and conservative opinion makers are emphatically rejecting Trump and supporting Biden for reasons other than Trump’s alleged pacifism.

            1. We got a live one here!
              Get that contract for the north anchorage of the bridge ready; this sucker will fall for ANYTHING!

            2. Tony, there isn’t a word or a concept you are capable of illuminating for any of us here. Don’t ever think otherwise.

              You are truly an insect among gods.

        2. You go to the election with the candidate you have, not the candidate you want.

      2. “If most of the Bush administration supports the Democrat over the Republican nominee, maybe ask yourself what’s wrong with the Republican nominee.”

        Isn’t fond enough of killing dark skinned folks?

  13. 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.

    Maybe flooding police departments with cash and cementing the harsh mandatory minimum sentences IS “Diamond” Joe Biden’s idea of criminal justice reform. Just because he’s made some vague statement claiming to back criminal just reform doesn’t mean that his idea of “reform” is the same as yours.

  14. The Biden campaign is a yes on marijuana decriminalization and expungement of records. What about the Trump administration?

    It’s undoubtedly true that parts of Biden’s long career were spent being a criminal justice warrior. Of course it was the 90s when everyone was. Anyone talking about reducing punishment and locking people up less back then wouldn’t have been frequently elected to national office. They were bad times, and Democrats were complicit by trying to look tough in the face of right-wing racist drug and crime policy. Trump, being a product of that time, is not only still in favor of maximum toughness on crime, he’ll say the racist part out loud. (Which is relevant here since Yates was fired for refusing to enforce the Muslim ban.)

    The point is Biden is a cipher and will go with the prevailing attitude on this subject. Thankfully the prevailing attitude is reform, just as long as we get the guy out who wants to fill more cages up with brown people.

    1. There is literally no case for Biden. His policies will be significantly worse on all fronts, especially foreign policy.

      1. The subject here is criminal justice reform. Trump has had 4 years. On foreign policy, Trump has given aid and comfort to our adversaries and offended every one of our allies and ramped up bombing in the endless wars. That’s a genuine horror show and I have no idea what you’re talking about.

        1. “…On foreign policy, Trump has given aid and comfort to our adversaries and offended every one of our allies and ramped up bombing in the endless wars…”

          Bull………..
          shit.

        2. If we want to stay on topic regarding criminal justice reform, what will Yates do about the criminal collusion between the CIA and the FBI and the Hilary campaign and the Russian spies and the Obama/Biden administration in order to take down the current president?

        3. And what do we make of Brain-Damaged Biden’s support of the super predator bill, back in 1994. Or his opposition to busing? Are you seriously trying to make a case that Sleepy Joe represents reform?

          Surely you meant reformatory, not reform.

        4. ‘That’s a genuine horror show and I have no idea what you’re talking about.’ Nor about what you’re talking about, for that matter.

  15. Who would have pretended like the author of the crime bill and a corrupt prosecutor from CA were ever interested in criminal justice reform? Other than Koch whores, no one is that stupid

  16. It should be noted that Sally Yates peddled the same insane Russia conspiracy as every writer at this publication (because they’re such original thinkers). With the same baseless conspiracies and fellating of the intelligence community.

    Ergo, Yates is no less “libertarian” than Reason. Which is pretty shameful, but pretty par for the course for Koch world

      1. A website that can be edited by anyone, whose owners are funding left wing parasites. Good one Tony.

          1. Not all, just the ones you pick.

          2. Tony… read the news once in a while…

            It is over. The only stone left unturned has been turned.

            They have a handwritten note from CIA Director Brennan to President Obama telling him that they learned that Clinton had approved a plan to smear Trump as working with the Russians. They knew from the very inception.

            All of it is a lie, Tony. Every single talking point you’ve trumpeted for the last 4 years on this topic was a lie. You were lied to. You were lied to by Obama. You were lied to by his cabinet. You were lied to by all of his supporters in congress and in the press.

            That entire Mueller investigation? We now know that there was nothing found because they all knew that there was nothing to find from long before the thing was conjured up.

            All of the people they ruined were ruined in furtherance of a lie.

            Remember how “iron clad” the Russian company doing fake stuff on Facebook was? Remember how triumphant the announcements that there were indictments of Russians? Remember how the minute they actually answered the charges in court, the whole thing evaporated? Even that completely unrelated angle was smoke and mirrors.

            1. I find it weird how people are supposed to be the world’s biggest government skeptics can swallow every piece of self-serving bullshit the world’s most successful conman dishes up for you.

              You don’t know what the fuck you’re talking about. The Mueller investigation was hobbled, but even so they didn’t find nothing. Read the primary sources. Read the Wikipedia page. Read something that didn’t come from Trump or his mouthpieces.

              1. You mean the primary source with then-CIA Director Brennan’s handwritten notes on it?

                1. Bonus… As far as I know, there have been zero revaluations about this from Trump or the white house. They have all come from DOJ investigations and FOIA requests and criminal case discovery requests.

              2. Brennan will be surprised to hear he is Trump’s mouthpiece. Wikipedia is notoriously biased when it comes to sociopolitical articles.

              3. Tony, you are like a flat earther or a KKK member: you just can’t face reality and facts.

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  19. There are loads of things you need to know about Sally Yates.

    But you left out the big one. She was the lawyer in the White House when Obama (and Biden) subverted the US government to go after political rivals. Sally Yates was there when Comey and his FBI agents told the President and his team that their months-long investigation into General Flynn had yielded “no derogatory information” and should be closed. It was an investigation that had no predicate in the first place, but this was the end.

    And Yates was there when Obama issued the order to set him up for criminal charges anyway.

    She knew it was wrong at the time. That’s why she wrote up a CYA memo that revealed all of the players to us.

    But as Flynn faced prosecution, Sally Yates did not come forward to tell what she knew.

    And as Flynn was bankrupted by a dishonest and unlawful prosecution, Sally Yates sat on her hands. She may have even given a few interviews opining about what a terrible person Flynn was.

    But she did not come forward and tell the world that she knew that it was all a setup run by political operatives in the Obama White House. She did not offer to testify in his defense – something that her very oath to defend justice would require.

    I pick a minor detail like the Flynn prosecution to drive home the point – Flynn was nobody important. But they had no qualms about ruining his life for simple political points. And just as Yates never once stood up and said “this is wrong” about Flynn, she never came forward about any of the other minor players in the Russia hoax, and she never came forward with her knowledge that the entire thing was a hoax. At any point throughout 2017 and 2018 she could have come forward and saved the American taxpayers millions of dollars on the investigation. At any point she could have come forward and derailed the use of all of this for endless congressional investigations that stymied legislative progress and poisoned the political environment.

    Sally Yates was not the president. And she is not the candidate for president either. But she was no bit player. She was neck deep in multiple conspiracies against citizens of the US and against the duly elected incoming president of the US.

    The idea that we just give her a pass on all of that is kind of astounding.

    I mean, would we have given G. Gordon Liddy a pass if he were to join the Reagan cabinet? What if Reagan had nominated Howard Hunt to be CIA chief? Think we would go along with that?

    No… but here we are with H. R. Haldeman heading up the democrat ticket, and he wants to appoint Erlichman as his Attorney General.

    And apparently we’re all just fine with that.

    1. Cyto…my question. Why can’t Yates be prosecuted for sedition? And the rest of that disgusting crowd: Comey, Brennan, Rice, Power, etc.

    2. My next questions….

      Why isn’t James Wolfe in prison for leaking classified information?
      What role did Sally Yates play in Wolfe’s case?

    3. And, she then went on the law school lecture circuit doing talks about how upright and honorable she was for being a part of the “resistance”. I do not want to see Sally Yates a part of any presidential cabinet ever again.

  20. So if Biden wins you cucks should be getting your precious “norms” back yet here you are whining about it.

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  22. Alice Johnson, a stupid nigger who ran the largest drug ring in Tennessee, should NEVER have been released. She gives law abiding African Americans like myself a bad name!

  23. There they go again! Making up stupid shit about something that has not happened and nobody knows will. Might as well pick Godzilla for secretary of defense too! Sound like a fox talking point.

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  27. What Biden wants doesn’t matter. What does Harris want?

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