The Volokh Conspiracy
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Did President Biden's Justice Department Confer with the Victims' Families Before the President Commuted Federal Death Sentences?
The Justice Department's policies generally require such conferrals, but it is unclear whether standard procedures were followed by the President in today's mass commutations of federal death sentences.
This morning, the White House announced that President Biden has commuted the death sentences of 37 of the 40 federal death row inmates. I wonder whether the President has ignored the rights and interests of crime victims' family members in granting mass commutations.
The Justice Department does have in place an announced policy for processing requests for executive clemency in capital cases. Under the Department's "Rules Governing Petitions For Executive Clemency sec. 1.10/Procedures Applicable to Prisoners Under a Sentence of Death Imposed by a U.S. District Court," victims' families (like a death row inmate's representatives) are supposed to generally have an opportunity to make a presentation to the Office of the Pardon Attorney before clemency is granted:
(c) The petitioner's clemency counsel may request to make an oral presentation of reasonable duration to the Office of the Pardon Attorney in support of the clemency petition. The presentation should be requested at the time the clemency petition is filed. The family or families of any victim of an offense for which the petitioner was sentenced to death may, with the assistance of the prosecuting office, request to make an oral presentation of reasonable duration to the Office of the Pardon Attorney.
In reading today's "fact sheet" from the White House, I see no reference to the Department having contacted victims' families or otherwise conferring with them before making the decision. The large numbers of commutations the President issued at the same time--all in the waning days of the current Administration--makes me wonder whether the Administration has simply left victims' families outside of the process.
As the Justice Department rules suggest, a fair process in considering commutations would necessarily involve at least hearing from victims' families before making any final commutation decision. And there does not appear to be any logistical barrier to conferring with the victims' families. The U.S. Attorney's Offices who have handed these 37 cases, no doubt, have ways to quickly contact family members. The federal Crime Victims' Rights Act (CVRA) broadly commands that victims (and family members in homicide cases) have the "right to be treated with fairness and with respect for the victim's dignity and privacy." Failing to confer with victims family members who have gone through a long and arduous capital trial and sentencing process is difficult to square with this command. And the Justice Department's own Attorney General Guidelines for Victims and Witness Assistance indicate that "[t]his broad-based right [to fair treatment] is central to the purpose of the CVRA and should serve as a guiding principle for Department personnel that governs all interactions with crime victims." A.G. Victims Guidelines at 70, art. III, sec. j.
My suspicions that the victims' families have been ignored in this commutation process are heightened by the fact that in another case--U.S. v. Boeing--the Department has paid little attention to victims' families. Indeed, a federal judge has found that the Department violated the federal Crime Victims' Rights Act in reaching its decisions without conferring with victims' family members.
Here, of course, the President has constitutional power to commute federal sentences, including federal death sentences. And in this short post, I don't take a position on the substantive pros and cons of the 37 commutations. My question is simply a procedural one that goes to the fairness of the process: In making the commutation decisions, has the President followed standard procedures and given the victims' families an opportunity to confer with appropriate officials before making a final decision? Perhaps such conferrals have taken place and these details have not been publicly disclosed. But from the information I've been able to review quickly, that seems unlikely … and, once again, victims' families rights and interests are apparently being ignored in some larger political manuever.
