Would an Independent Commission Solve the Clemency Backlog?

A new bill would transfer the review of petitions from the Justice Department to a presidentially appointed board.


When Jimmy Carter became president in 1977, fewer than 500 clemency petitions were pending at the Justice Department's Office of the Pardon Attorney. When Joe Biden became president in January, he faced more than 15,000 petitions, a number that had risen to more than 18,000 as of December 14.

A bill that Rep. Ayanna Pressley (D‒Mass.) unveiled last Friday seeks to address this alarming backlog, which includes many people serving unconscionably long sentences for nonviolent crimes, by eliminating the Office of the Pardon Attorney and assigning its functions to an independent, nine-member U.S. Clemency Board appointed by the president. While Pressley is rightly concerned that meritorious cases are languishing at the Justice Department, it's not clear that her FIX Clemency Act would work as advertised.

During the Carter administration, most clemency petitions sought pardons, which clear people's records after they have completed their sentences, relieving them of ancillary penalties such as the loss of Second Amendment rights and ineligibility for professional licenses. Today the vast majority of petitions are for commutations, which shorten the sentences of current prisoners.

The surge in commutation petitions followed an explosion in the federal prison population, which rose ninefold between 1980 and 2013, from fewer than 25,000 to more than 219,000. Since then, the total has fallen by 29 percent, but it is still more than six times the number in 1980.

Sentences also have increased dramatically. Current federal prisoners, 46 percent of whom are serving time for drug offenses, received an average sentence of 147 months, nearly three times the average sentence imposed in 1986.

President Biden, who as a senator played a leading role in crafting and passing the laws that imposed increasingly draconian penalties on drug offenders, now says he has seen the error of his ways. During his campaign, he promised that he would "broadly use his clemency power for certain non-violent and drug crimes."

So far Biden has not granted any pardons or commutations. But when he gets around to it, recent history suggests the Office of the Pardon Attorney will be ill-equipped to help him.

President Barack Obama granted a record 1,715 commutations, nearly all in his second term and the vast majority during his last year in office. But as Margaret Colgate Love, who served as the U.S. pardon attorney from 1990 to 1997, notes, the Justice Department "farm[ed] out responsibility for managing this initiative to private organizations rather than try to identify eligible cases through its own established channels."

Pressley and her allies argue that the current system entails an unavoidable conflict of interest, since it charges the same department that sends people to federal prison with deciding whether to recommend that the president shorten their sentences. Former prisoners such as Danielle Metz and Alice Marie Johnson—who were serving life sentences for nonviolent cocaine offenses before they were freed by Obama and Donald Trump, respectively—agree with this critique and support Pressley's bill.

But Love, now a lawyer who specializes in representing clemency applicants, does not think abolishing her former office is the answer. She argues that the problem of prosecutorial resistance, which she herself encountered as pardon attorney, can be addressed by "removing responsibility for pardon matters from subordinate officials who are also responsible for prosecution policy and returning it to the office of the attorney general."

Love thinks the restoration of rights, a major function of the pardon system, could better be handled by the courts. But she argues that a "reinvigorated" commutation program within the Justice Department is more likely than Pressley's proposal to have a positive impact on prosecutorial practices and "could be integral to an enlightened criminal justice agenda."

One way or the other, the buck stops with the president, who has plenary power to grant clemency. If Biden is serious about trying to make up for his past as a lock-'em-up legislator, he should get started.

© Copyright 2021 by Creators Syndicate Inc.

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  1. We have a U. S. Parole Commission which is running out of business and is operating short of a full complement of members. Why not add to its responsibilities by having it consider pardon applications referred to it by the President, with responsibility for making recommendations on the cases referred to them?

    (Limiting it to cases which are referred to it is of course a constitutional requirement if Congress and an executive agency are not to usurp the President's clemency power)

    It maintains the Washington tradition of keeping official bodies in existence forever, but at least it doesn't create a *new* body.

    And at least the Parole Commission has experience in letting prisoners out of prison.

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    2. "(Limiting it to cases which are referred to it is of course a constitutional requirement if Congress and an executive agency are not to usurp the President's clemency power)"

      Well, that would largely depend on how the clemency applications are handled.

      If they act as a filter on which applications the President considers, you are probably correct.

      If on the other hand they review applications and send every application to the Presidents desk with a recommendation, I don't think that sort of limit is necessary.

  2. Setting up an independent commission sounds too time-consuming. We should just completely #EmptyThePrisons right now.


    1. But prisoners provide the cheapest labor of all

  3. Didn't Trump do this exact thing for this exact reason? I have a memory of a reason article about it, but I can't remember if it was critical of the action or not.

    1. Yes, administratively IIRC. But that can be discredited as "Trump's thing". The new proposal would make it Congress's thing. Still just advisory, of course.

  4. Biden’s supported legislation locked up the superpredators. He doesn’t want to grant them a release. Next.

    1. Joe Biden did not use the term SUPER predators.

      1. Okay, SEDITION predators.

        1. "SUPER" Predator was used by HRC who actually won in 2016.

      2. I didn’t say he did. It was his fellow Democratic Party member Hillary Rodham Clinton. He just supported and voted for the legislation.

  5. That Supreme Court independent commission sure did a bang-up job. 9 months of taxpayer funded bickering to come to no conclusions or recommendations.

    1. But that may have been its job, i.e. delaying. The more you can delay something bad (like death), the better.

  6. When has an "independent commission" ever solved anything?

    1. Many times! Just at the federal level, there have been many such successes. Many of the successes were only partial, but that's pretty damn good!

      Remember the military base closing commission? There was a lot of attention to how not all its recommendations were accepted by Congress — but many of them were, which is a win.

      Richard Nixon as president left a great legacy in deregulatory commissions, which over the decade during and after he left office, turned out their reports, many of which were acted on favorably. The biggest failure was that of the recommendation to deregulate marijuana. I now think that particular commission's fault was working too quickly, so that their report came out while Nixon was still in office. If you can stretch things out, especially over a period in which party control of the executive changes, you have a better chance of your recommendations coming out as "nonpartisan", i.e. "nobody's fault".

      But the other commission reports led to spectacular successes in deregulating transportation, communication, petroleum, and some other things I don't remember now. And even one of them that did report quickly got Selective Service and the draft abolished. (Congress re-enacted Selective Service in 1979.)

      Even in parliamentary governments, commissions (which, unlike most bureaus, are appointed bipartisanly) have a great record of success compared to the partisan bureaus.

      1. If you have to go back to Nixon to get "successes", you're validating my post. The BRAC was flawed, especially in view of the changing threat environment.

        1. When and where they've been instituted, they have a much better record of success than the bodies that commissioned them. It's not a knock on commissions that so few of them have been given such authority. Your criticism is like those who say we can't point to recent examples of places where free banking or unregulated narcotics have worked, so it must not be a good thing.

  7. From the "libertarians for bigger government" department, apparently.

  8. Or we could shorten sentences for nonviolent crimes, end the drug war, repeal the patriot act and reduce the regulatory state, which should bring that backlog down to about 500 again.

    1. Only if the laws are repealed retroactively, so all those serving time under them must be freed automatically and immediately. The way politicians usually handle repealing laws, the effect will be to multiply the pardon and clemency requests because that's the only way people convicted under the now repealed laws will be getting out early.

  9. "Non-violent crimes."

    There was a debunking article written in the last couple of years precisely about one of these 'non-violent' cases. NPR did a segment on a poor man who was in jail in NY for a non-violent crime. Upon further inspection, he was a gang leader who ran the biggest heroin dealing operation in Harlem. And although he wasn't tried for it, the gang had 8-9 murders under their belts - which he certainly would have ordered. Murder trials are complex and expensive, and his sentence for the drug charges was plenty long, so it made sense to forgo from the effort.
    Dude was an enemy of society, and should properly rot in prison. He was also NPR's 'non-violent offender.'

    1. In other words, this murderer is classified as "nonviolent" because the prosecutors were too lazy to prove his more serious crimes.

  10. The real problem is too many laws creating too many crimes sweeping up too much collateral damage along the way. Maybe we should just convict everybody and form a commission to pardon the few elites who deserve to be unconvicted.

    Or void all laws which collect too many pardon and commutation requests, as that over-abundance merely shows how malleable and vague the laws are.

    1. But where will Kamala Harris get all the slave labor she wants if we stop throwing so many people in prison?

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