Long-time readers know I have lamented under-use of Presidential clemency powers for the 15+ years I have been blogging (e.g., consider this 2004 post lamenting "Bush's stingy pardon practice"). In 2010, I wrote this law review article lamenting Prez Obama's poor early clemency track record and urging him to make structural changes to the federal clemency system. To his credit, Prez Obama upped his clemency game in the tail end of his second Term, but he failed to engineer any systemic changes to a problematic process. And Prez Trump, after an (overly) interesting early start to clemency work, has failed to vindicate his big talk last summer about big clemency plans.
Against this backdrop, I cannot help but get a little excited by this little CBS News article headlined "Clemency debate takes shape in 2020 Democratic race — advocates say it hasn't gone far enough." Here are excerpts:
Advocates for criminal justice reform argue 2020 candidates aren't spending enough time discussing clemency. Inmates are behind bars who shouldn't be, they say, and the next president has the power to change that without Congress.
Senator Cory Booker brought attention to the issue at the Democratic presidential debate earlier this month, saying if he were elected president, he would commute the sentences of roughly 17,000 non-violent drug offenders on his first day.
Booker first proposed the idea in June to reduce sentences for those who would have received less time if guidelines under the First Step Act — passed in December 2018 — had been in effect. "If 87 members of the United States Senate say these sentences are way too long — and we changed it — but we didn't make it retroactive, we could literally point to the people that are in jail unjustly right now," Booker said at the debate in Houston....
A petition historically goes through multiple rounds of approval within the Department of Justice and the White House before reaching the president's desk. It's a lengthy process that can be easily stalled.
Experts argue there are political forces at play that can taint the process since the majority of the system is housed under the attorney general's purview. "The DOJ is comprised of the people that put these people behind bars in the first place," said Joe Luppino-Esposito, the director of Rule of Law initiatives at the Due Process Institute. "It's a little odd the clemency process happens within the same department."
However, at least six Democratic hopefuls — Booker, Mayor Pete Buttigieg, Senator Kamala Harris, Senator Amy Klobuchar, Senator Bernie Sanders and Senator Elizabeth Warren — say they would address these issues through an independent commission, which could both speed up and depoliticize the process....
Klobuchar was the first candidate to introduce the idea. Her plan establishes a bipartisan advisory board to review petitions and make recommendations to the president. "For the first time, we have candidates proposing changing the process," said Mark Osler, a professor at the University of St. Thomas. "They'd be smart to take a look at it very closely at this point."...
The Obama administration attempted to streamline the process by introducing specific eligibility criteria, however, an internal report by the Department of Justice last year found the initiative was "poorly implemented." ...
Presidents and governors are often wary about the risk of being criticized if someone with a commuted sentence goes on to commit a highly-publicized crime. Many attribute this to the "tough on crime" climate ushered in after the Willie Horton campaign ad during the 1988 election. In 2012, former Republican nominee Mitt Romney boasted that he granted zero pardons while he served as governor of Massachusetts.
I won't get too excited about all this clemency reform talk unless and until we actually have a would-be reformer in a place to walk the clemency reform walk. But it is still encouraging to see how the political discourse has evolved in recent years, and perhaps an evolution of the actual law will not be too far behind.
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