Would an Independent Commission Solve the Clemency Backlog?

Jimmy Carter took office in 1977. In that year, less than 500 petitions for clemency were still pending at the Justice Department’s Office of the Pardon Attorney. Joe Biden, who became President in January 1977, was faced with more than 15,000 petitions. By December 14, that number had reached more than 18,000.

A bill that Rep. Ayanna Pressley (D‒Mass.) A bill that Rep. Ayanna Pressley (D-Mass.) unveiled on Friday seeks to reduce this backlog. It eliminates the Office of the Pardon Attorney, and gives its duties to an independent U.S. Clemency Board of nine members, appointed by the President. Pressley may be rightly worried that meritorious case are not being dealt with by the Justice Department. But, it isn’t clear that Pressley’s FIX Clemency Act will work as she claims.

The Carter administration was a time when most of the clemency petitions requested pardons. Pardons are used to clear someone’s record after their sentence has been completed. It also relieves them of any ancillary penalty such as loss of Second Amendment rights, or ineligibility for professional licensures. Today, the majority of petitions for commutations are to reduce current prison sentences.

After an increase in federal prison populations, the number of commutation petitions soared ninefold from 1980 to 2013, when it was less than 25,000 to over 219,000. The total number of federal prisoners has decreased by 29 per cent, however, they are still six times more than the 1980 numbers.

The severity of sentences has also increased. Federal prisoners currently serving sentences for drug offenses have an average sentence length of 147 month, almost three times as long as the 1986 average.

Biden was a senator who played a key role in creating and passing laws that placed increasingly harsh penalties on drug offenders. He now admits that he sees the error of his ways. Biden promised during his campaign that “broadly” he would exercise his clemency authority for drug and non-violent crimes.

Biden has so far not given any pardons nor commutations. However, his past history indicates that the Office of the Pardon Lawyer will not be equipped to assist him when he does get around to doing so.

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. Margaret Colgate Love who was the U.S. Pardon Attorney from 1990-1997, points out that the Justice Department is “farming”.[ed]This initiative will be managed by private companies, rather than trying to determine eligible cases using its existing channels.

Pressley and her allies claim that the current system creates an inextricable conflict of interests because it charges the department that sent people to federal prisons with making the decision on whether or not to reduce 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.

Love, a lawyer who is specialized in representing applicants for clemency, doesn’t think that eliminating her previous office would solve the problem. According to Love, the solution to prosecutorial resistance that she experienced as pardon lawyer is “removing the responsibility for pardon cases from the subordinate officials responsible for the prosecution policy, and returning it back the office the attorney general.”

Love believes it is not logical for the Justice Department, which she feels should be left to the courts. She argues, however that the Justice Department’s “reinvigorated” program for commutation is likely to have a greater impact than Pressley’s suggestion and be “integral to an enlightened criminal Justice agenda.”

The president has the plenary power of granting clemency, so the decision is his. Biden must get on the right track if he wants to rectify his record as a lock’em up legislator.

© Copyright 2021 by Creators Syndicate Inc.