Would an Independent Commission Solve the Clemency Backlog?

In 1977, Jimmy Carter was elected president. At the Justice Department’s Office of the Pardon Attorney, there were less than 500 clemency requests pending. 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.) Last Friday, Rep. AyannaPressley, D-Mass., unveiled a bill to reduce this backlog. The legislation, which included nine independent members of the U.S. Clemency Board, was created by Pressley. 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. The vast majority of petitions today are for commutations which reduce the sentence of existing prisoners.

Following an explosive rise in federal prison population between 1980-2013, from less than 25.000 to more than 219,000, there was a surge in the number of petitions for commutation. 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. The average sentence for federal prison inmates, which includes 46 percent, is 147 months. This sentence is nearly three times that of 1986.

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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. He promised during his campaign that he would use his clemency powers for “certain non-violent drug crimes.”

Biden has so far not given any pardons nor commutations. Recent history shows that the Office of the Pardon Advocate will be unequipped to aid him once he is ready.

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 was U.S. pardon lawyer from 1990 to 1997.[ed]Instead of trying to find eligible cases via its established channels, it will delegate responsibility for this initiative to private organisations.

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 issues from the subordinate officials responsible for the prosecution policy, and returning it back the office the attorney general.”

Love feels it’s not sensible for the Justice Department or the Justice Department being involved in restoration of rights. She believes that this function should better be performed by the courts. However, she believes that Pressley’s proposed proposal for a Justice Department “reinvigorated commutation program” is more likely to have an impact on prosecutorial practice and could be “integral part of 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.