Clemency

Trump's Messy Pardon Spree Left Too Many Behind. Biden Must Do Better.

Criminal justice groups say Biden should move the pardon process out of the Justice Department and consider categorical clemencies.

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Shortly after 1 a.m. EST on January 20, the White House released the final list of pardons and commutations of President Donald Trump's term. It was the end, for better or worse, of months of feverish work by clemency advocates, federal inmates, and their families to secure clemency before Trump left office.

Some received a second shot at life. Of the 143 pardons and commutations, major newspaper headlines focused, understandably, on those of cronies, rappers, and political allies, but the list also included dozens of obscure cases of vindictive prosecutions and excessive sentences.

One of those was David Barren, whose case Reason wrote about in 2017. Barren was serving a life sentence for a nonviolent drug crime when President Barack Obama commuted his sentence. However, Obama only commuted Barren's sentence from life to 30 years, which would have left him behind bars until he was in his early 70s.

Chris Young, whose case Reason profiled in 2018, also received clemency from Trump. Young was sentenced to life in federal prison for his role in a drug trafficking ring. Because he turned down a plea deal and exercised his constitutional right to trial, prosecutors used a federal "three strikes" law to automatically enhance his sentence to life. None of his co-defendants, including the alleged ringleader, received life.

Young's life sentence had actually been reduced to 14 years after his lawyer, Brittany Barnett won a rare motion challenging his sentence, but he still had several years left behind bars. According to Barnett, Young was in solitary confinement under the Federal Bureau of Prisons' COVID-19 quarantine protocols when the White House released the list.

"He was in the hole for 97 days awaiting transfer to a lower security facility, and that's where he got the news," Barnett says. "I was there to pick him up when he came out around 3:30, so he found out about two and a half hours before his release."

Weldon Angelos and Amy Povah, both of whom served draconian drug sentences before being released early and becoming criminal justice advocates, received pardons.

For others, though, the early morning of January 20 was a crushing disappointment.

"On the 20th, I had to make a lot of really horrible calls to people," says Shon Hopwood, a Georgetown Law professor and clemency advocate.

Forbes reported on the case of Luke Scarmazzo, who is serving a 22-year sentence for operating a medical marijuana dispensary in California. Clemency advocates were given strong indications that Scarmazzo would be freed, so much so that Scarmazzo had his bags packed and ready to go on January 19. His family had started preparing for his arrival. On January 20, he was still sitting in prison as President Joe Biden was inaugurated. 

Likewise, Politico reported that advocates were pushing the White House to commute Rufus Rochell's 40-year federal prison sentence for possession and conspiracy to distribute crack cocaine. Rochell's supporters included his former prison pal Conrad Black, a financier whom Trump had pardoned in 2019, but Rochell's commutation inexplicably never materialized.

Among the words clemency advocates used to describe the last months of the Trump White House's pardon process in interviews with Reason were "haphazard," "chaos," "a circus," and "completely random." In one commutation case from December, a woman didn't know that her terms of supervised release had been commuted by the president until a Reason reporter texted her.

Criminal justice advocates say the Biden administration now has an opportunity to avoid the pitfalls of both the Obama and Trump White House's clemency efforts, and they are pushing the White House to embrace a more muscular, independent pardon process. 

In late January, the American Civil Liberties Union took out a six-figure ad buy urging Biden to commute the sentences of 25,000 federal inmates who are incarcerated under outdated statutes, elderly or medically vulnerable, or incarcerated for drug offenses.

Many criminal justice advocates also say the Biden administration should move the pardon review process out of the Justice Department, where petitions are typically vetted by the Office of the Pardon Attorney.

"It makes absolutely no sense for these petitions to go through multiple layers of review within the Department of Justice, the very department that prosecuted them in the first place," Barnett says. "There's a huge conflict of interest there."

The Obama administration launched a large-scale clemency initiative aimed at nonviolent drug offenders, but criminal justice advocates were deeply disappointed by the results. Although the initiative ultimately led to clemencies for 1,715 federal inmates, foot-dragging and resistance from the Justice Department, including then-Deputy Attorney General Sally Yates, hamstrung the process and led to many worthy cases being denied.

"If Sally Yates couldn't be objective, I have a hard time seeing how we can rely on someone within the system, within DOJ, to be objective about [clemency]," Hopwood says. "On the flip side, the Trump process was even worse because you had to rely on criminal justice reform organizations—that part doesn't bother me so much, but so much of it was about access."

The Trump White House boxed out the Office of the Pardon Attorney and instead relied on an informal task force of advisers and trusted advocates to bring forward worthy clemency candidates.

The upshot of this was several people that the Obama administration passed over were granted commutations, such as Alice Johnson, a grandmother who was serving a life sentence for a nonviolent drug crime until mega-celebrity Kim Kardashian made a personal appeal to Donald Trump.

The downside was that the regular pardon process ground to a halt. While the Trump White House held up individual cases like Johnson's as evidence of unfair drug sentences and the human capacity for redemption, it never showed much interest in applying that rhetoric to the larger federal prison population. As a result, Biden has inherited an executive branch with roughly 14,000 pending clemency and pardon petitions, an all-time high.

"That's an untenable, unacceptable position you're leaving," says Brett Tolman, a former federal prosecutor and criminal justice advocate who lobbied the Trump White House on clemency cases. "Thousands of people just feel like applying for [clemency] means nothing."

And although the Trump White House took its clemency program out of the Justice Department, advocates say interference still torpedoed deserving clemency petitions.

David Safavian, director of the American Conservative Union Foundation's Nolan Center for Justice, wrote in a February Facebook post that the White House counsel "did everything possible to delay, obfuscate, undermine or stop petitions from reaching the President's desk."

"The bottom line is that [the White House counsel] and DOJ colluded to prevent President Trump from doing the right thing," Safavian continued. "And they were successful in far too many righteous cases."

For example, Hopwood himself was on a shortlist of potential pardon candidates. Hopwood served 11 years in federal prison for bank robbery. While inside, he became a talented jailhouse lawyer and had two petitions for certiorari accepted by the Supreme Court. After his release, he passed the bar and became a professor at Georgetown Law. Hopwood didn't advocate on his own behalf, but several others pushed his case.

"I was begging them to get [Hopwood] a pardon," says Safavian. "Do you get any better of a case where someone has turned their life around and really done something spectacular after serving a long prison sentence? I mean, good grief."

Hopwood says he's relieved he didn't get a pardon, though.

"Understand that from my perspective, the worst possible result for me would have been me getting a grant of a pardon and none of my clients are getting it," he says.

Hopwood's fear illustrates the other downside of the Trump White House's approach to clemency: It became an access game, and, like everything else in Trump's universe, it fostered at least the appearance of being transactional.

"Whether or not someone gets a merit review of their case should not depend on whether they know Kim Kardashian or whether they know a lobbyist that used to work at the Trump White House or, for that matter, whether they know me," Hopwood says. "That's not a great system for going forward if we want everyone to have equal access to clemency."

Some paid tens of thousands of dollars to lobbyists to try and secure clemencies from the White House. The Washington Post reported that Matt Schlapp, chairman of the American Conservative Union, made $750,000 for about a month of lobbying work. Jack Burkman, a cartoonishly incompetent conservative political operative, charged $92,000 for work on behalf of a client who didn't receive a pardon. (Tolman took on paying clients as well, but he notes that he also worked on more than 20 pro bono cases and charged far less than what his regular hourly rate would have been.)

Although Trump's pardons of underlings led to calls to restrict the president's pardon powers, Tolman says that would be a grave mistake.

"It's rough because it's clouded by Trump doing the pardons for his friends and colleagues," he says. "I don't think that it's wrong to criticize that because it does highlight a double-edged sword, but we need pardons and need to overhaul this system if regular people are going to have consideration."

Several other clemency advocates, such as Mark Holden, chairman of the conservative group Americans for Prosperity, support the idea of the White House creating a blue-ribbon committee to vet clemency petitions.

The Biden administration also has the opportunity for broader, categorical clemencies. Holden says the White House should look at felonies for simple possession of marijuana and other drugs.

Barnett, Chris Young's attorney, estimates that there are still 600 to 700 federal inmates sentenced to die in federal prison under the same "three strikes" enhancement—known as an 851 enhancement—that was used against Young. Congress reduced those penalties when it passed the First Step Act in 2018, but those changes weren't retroactive, meaning they have no effect on those already sentenced.

"We have people serving life sentences today under yesterday's drug laws," Barnett says. "It's very disheartening to see all these 851 lifers where, if the law was simply retroactive, they would be walking out of the door."

And there are the countless other incarcerated and formerly incarcerated people whose stories have yet to be told.

"It's horrifying what we've done in our country with the war on drugs the last 40 something years," Holden says. "But there are so many stories out there about people who were put in for life and then changed."

"That's why it's important with these clemencies to tell these stories," Holden continues. "We did some of that, but it wasn't done enough. I hope that [the Biden administration] is going to be focused on that and tell these stories about people."

NEXT: The Fairness Doctrine Was the Most Deserving Target of Rush Limbaugh’s Rage

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  1. Completely delusional expectation.

    1. BUT IT WAS MESSY! You just don’t understand.

      “The bottom line is that [the White House counsel] and DOJ colluded to prevent President Trump from doing the right thing,” Safavian continued. “And they were successful in far too many righteous cases.”

      This was true with the entire civil service during those four years, including the CIA, FBI and Pentagon. The US would already be out of Iraq, Germany and Afghanistan if so many functionaries hadn’t conspired to thwart withdrawals.

      The number of civilian and military bureaucrats who should be fired, arrested or court martialed is enormous.

      1. Hey, there were many accomplishments.
        Under Obama and Joe the Doormat, the Air Force built the largest dirt airstrip on the planet, right there in Afghanistan! Before they paved this dirt road to hell, they abandoned the project! You can see your taxpayer dollars on Google Earth! It rivals the pyramids! Biden the builder!
        Think of all those carbon emissions that were expelled into the universe building the world’s largest airstrip! Hell, even Horseface Kerry’s private jet can’t match that amount of gases.

      2. Yup. At this point, its more who SHOULDNT be removed from their federal positions.

        The default is that our federal bureaucracy is almost entirely staffed by leaches who would be okay with americas demise if they get to keep their government job (with federal pension).

    2. The commies at unreason are liars and dont care about convicts or excons.

      Trump said he would consider anyone submitted for pardon. Kardashian submitted multiple people who got commutted sentences pr pardons.

      How many people did unreason commies submit. Answer ZERO.

      Commies at unreason were too busy pushing propaganda about Trump to keep him busy with nonsense instead of preaching real forgiveness and mercy. Or even justice.

      Check out the federalists article on Koch traitors to america and the commies hiding among us trying to burn america down. Why would they do that? They hope to the vanguard in control of the ashes.

  2. “Biden Must Do Better.”

    Or what? Some little bitch faggot Reason writer who sucks Biden off like his dick is the Fountain of Youth is gonna…what? Whine more?

  3. Pardon, do you have any Grey Poupon?

  4. Looks to me like the problem isn’t a lack of pardons, but is instead unjust legislation that Biden helped to pass.

    1. I have to think it’s objectively true that Biden has ruined vastly more lives in his years on this Earth than did Trump.

      It’s likely a fool’s errand (though worth a try, I guess) to try to shame or reason someone like Biden (or his vice president) to reverse the over-incarceration trend to which he helped accelerate the country.

      1. Shame won’t work. Politicians have none. Reason won’t work either because they feel like they’re doing the right thing, and you can’t defeat emotion with logic. Emotion always wins.

        1. Kind of irrelevant. Biden made a campaign promise to expunge all criminal records of non-violent cannabis ‘offenders’. He has now, as of yesterday, received a letter from 30+ congresscritters re that. Unlike Obama, Biden was complicit in putting these folks in federal prison. Like Obama, he will help rectify it. And my guess is that timing is nothing more than figuring out the right photo op.

        2. OK, so make them emotional.

          1. Excellent point. One should always tailor their message to their audience. If one were to try and persuade a progressive, they would need to rely heavily on pathos, obviously.

    2. He now values the Super Predator. They burn the buildings and statues. In Biden’s eyes, they are freedom fighters.

  5. The LAST thing that is needed is for the explicitly Presidential authority to pardon/commute to be turned into a merely bureaucratic appendage.

    That said – there is a real problem imo when an explicit authority is ignored for pretty much all but the last day of a Prez term (For others, though, the early morning of January 20 was a crushing disappointment…On the 20th, I had to make a lot of really horrible calls to people,”). That abdication of responsibility is not about uncomfortable phone calls. It’s about people locked up in jail for years when they shouldn’t be.

    The number of pardons has already dropped way too much over the last 70 years or so. The mix of pardons has become mostly political now since those are the ones that prez’ have not chosen to eliminate. And when pardons become political, people increasingly view the authority to pardon as nothing but a form of corruption.

    1. Count of Pardons by President

      If you look at the presidents who issued the most – FDR, Wilson, Truman, Obama, Coolidge, Hoover, Grant, LBJ, Eisenhower, Cleveland.

      But generally more recently – something disconnected. Reagan issued fewer than Ford. Clinton fewer than Carter. Both Bushes are fucking appalling. Trump finished out better than both Bushes – but only on last day and before then Trump was in the count of Washington/Adams (very few federal prisoners in the universe of those who can be pardoned) and early-death-in-office Presidents. somehow Presidents now no longer understand the real reason that authority is even in the constitution

    2. It says they’re ashamed of it. Turning it over to unelected bureaucrats’ whose decision you’ll rubber stamp says you don’t want responsibility for it, and saving it for the last minute is so you won’t be criticized for it while you’re still in office. So the view of it as a form of corruption has been self-fulfilling.

    3. Well, if a pardon is necessary, something has gone wrong.

      Pardons are supposed to be for extreme circumstances. Someone did something that is morally correct but illegal or have done something amazing to be worth commuting their sentences.

      You would hope that over time, laws would improve so that pardons are not necessary.

      Many of the prominent Trump pardons were people who were arguably undergoing political prosecutions. That is a problem by itself, but hopefully indicates that our laws and justice system are doing a better job now.

  6. Most are in jail because SleepyJoe put them there.

    1. +100000000000000000000

      El presidente biden and kamala rouge are literally listed on the criminal laws and indictments for many federal prisoners.

  7. Douglass Mackey is facing 10 years for posting memes.

  8. Biden and a whole slew of Democratic Politicians BELONGS in prison especially after frauding ‘the peoples’ election.

    1. *Fortifying Our Democracy.

      1. Fortified it good and hard.

  9. Wow, doublethink right in the title. Orange Man Bad for pardoning people, and Orange Man also Bad for not pardoning people.

    1. Of course.
      Everything Orangehitler did was bad, because he was bad. If the Lightbringer had done them it’d be good because he was good.

  10. Letting criminals go is super effective. Look at Chicago. Super….duper effective.
    Why doesn’t Biden care about the taxpayers? Why does he only care about the non-taxpayers?
    Easy. Delaware has been a top 3 welfare state under Joe. His voter base doesn’t include actual taxpayers, only the people voting for more freebies and the out of touch woke shits that think they deserve it.

  11. The Dept of Justice is nothing but a bunch of overpaid crooked lawyers and ineffective corrupt FBI agents.
    Both have lost the trust of a large percentage of American citizens.

  12. So the deep state strikes again?

    Does it strike anybody else here as odd that such a function as executive clemency would have advocates for regularization? Shouldn’t clemency be a rare event resulting from a shock to the president’s conscience? Are we saying that federal criminal law is so fucked up that it needs a super-trial mechanism to reverse court decisions?

    1. Hamilton said it should be common in Federalist 74. And clearly argued that it should not be a bureaucratic decision.

      Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel. As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance. The reflection that the fate of a fellow-creature depended on his sole fiat, would naturally inspire scrupulousness and caution; the dread of being accused of weakness or connivance, would beget equal circumspection, though of a different kind. On the other hand, as men generally derive confidence from their numbers, they might often encourage each other in an act of obduracy, and might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency. On these accounts, one man appears to be a more eligible dispenser of the mercy of government, than a body of men.

  13. What about Assange? Snowden? Ulbright? McAfee? Fuckin’ Trump…

  14. Kim Kardashian is a “mega-celebrity?”

    1. Well, her mega-ass certainly is.

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