At a congressional hearing last week dedicated to clemency, both sides of the political aisle repeatedly agreed that the U.S. has a "two-tiered system of justice." But the makeup of that hierarchy is decidedly different depending on who you're listening to. In Republicans' telling, it is a system corrupted and fractured by political bias; in Democrats' view, it is poor people and people of color who are relegated to the bottom.
My response: Yes. Both parties and both positions are, in many ways, correct—which should be the starting point for the conversation about how to improve a clemency process that has been polluted and gone stale in modern times.
The hearing was pinned to the case of Philip Esformes, whose sentence was commuted by former President Donald Trump and who the Department of Justice is now seeking to reprosecute. Esformes was arrested in 2016 and served four and a half years out of a 20-year sentence for money laundering and related charges, with prosecutors alleging he paid doctors under the table to send patients to his nursing and assisted living facilities, where he would charge Medicare and Medicaid for unnecessary services.
But Esformes was already sentenced, and had that sentence commuted, for the charges the DOJ wants to retry. At his first trial, the jury hung on the most significant counts. The judge then explicitly sentenced Esformes for those charges anyway, a little-known practice that is legal in federal court. If a defendant opts for a jury trial and the jury acquits him or declines to deliver a verdict on certain counts, the judge can disregard that conclusion if he or she decides the panel got it wrong.
The use of acquitted, hung, and uncharged conduct at sentencing has elicited rebuke and skepticism from unlikely bedfellows across the political spectrum, from former Supreme Court Justice Ruth Bader Ginsburg to Justice Brett Kavanaugh. This makes Esformes' story an interesting case study through which to view the discussion around clemency and the justice system in general.
Democrats are typically first in line to argue for a more robust clemency process and fair sentencing practices—both of which are at stake in Esformes' case.
And yet, it is congressional Democrats making the "tough on crime" argument here, defending Esformes' reprosecution during the hearing and, in a sense, seeking to reverse the previous administration's clemency grant. One wonders how this would play out had that grant come from a Democratic president, not a Republican one, although the probable answer doesn't require an active imagination.
The allegations against Esformes are loathsome. And he represents what many Democrats dislike about the justice system, in that wealthy people sometimes get a better fortune. But a party that claims to stand for criminal justice reform cannot only apply that principle to the "right" defendants. The Democrats' stance last week likely serves as confirmation to Republicans that this iteration of the DOJ cares more about political football than it does justice.
And while the word "unprecedented" is overused, it is notable that there is genuinely no precedent with which to compare this case. During the hearing, no witness was able to furnish a prior prosecution where someone had been put back on trial after receiving a commutation.
Democrats are correct, though, that there are many poor people and people of color sitting in prison who deserve to have their clemency petitions taken seriously. The two aren't mutually exclusive, no matter how much certain Republicans and Democrats may paint that picture for the sake of an adversarial narrative. President Joe Biden, a Democrat, could listen to his colleagues in Congress and review more petitions before him instead of waiting for the 11th hour, which has become typical of leaders from both parties.
It is possible to live in a world where we don't countermand the previous president's clemency decisions, where we don't reprosecute people on charges for which they've already been sentenced, and where more people receive mercy. A robust clemency process requires all three.