When Joe Biden took office, he inherited the largest backlog of unresolved clemency cases in U.S. history: 14,000 people waiting to find out if their convictions would be erased or sentences reduced, or if they’d get any answer at all.
Many of those 14,000 have languished in the system for years after Biden’s predecessor, Donald Trump, largely bypassed the century-old process for reviewing cases and instead granted pardons based on advice from politically connected friends, high-priced lobbyists and TV celebrities.
Biden’s White House counsel’s office has started to reach out to attorneys and advocates for suggestions on reforms, what could be done about the backlog, and mistakes they believe were made in previous administrations, according to the people familiar with the conversations. Roy Austin, an Obama administration veteran who served on the Biden transition team on Justice Department issues, has spoken to advocates as well. Biden’s new adviser on criminal justice issues at the Domestic Policy Council, Chiraag Bains, is expected to play a role too, according to two people familiar with the situation.
But the White House has revealed little about its own plans. And attorneys and advocates still worry that Biden’s team lacks a comprehensive plan for dealing with the enormous backlog. Perhaps for good reason: A former Obama aide said that while Biden’s team is familiar with the clemency problems it faces, it has been too busy with nominations, executive orders and proposed legislation, including those designed to tackle the coronavirus pandemic and cratered economy.
“They couldn’t have had time to formulate a plan,” the person said.
More than 100 progressive groups working on criminal justice issues are urging Biden to overhaul the arduous clemency process and start resolving cases right away. One of them, the ACLU, launched an ad campaign to push him to grant clemency to 25,000 people and make good on his pledge to tackle criminal justice issues amid a national reckoning on racial injustice. Among those who have met with Biden’s team are Cynthia Roseberry, deputy director of policy at the American Civil Liberties Union’s Justice Division, and Nkechi Taifa, convener of the Justice Roundtable, an umbrella organization on criminal justice issues.
“It’s a grotesque case of government incompetence in an instance where the stakes couldn’t be higher,” said New York University law professor Rachel Barkow, an expert on clemency issues who is advocating for change. “These are people who are currently incarcerated during a pandemic. … It would be bad in any case, but it’s particularly egregious now.”
Were the backlog the only hurdle Biden faced on this front, it would be daunting enough. But days before Trump left office, the Department of Justice also issued a little noticed legal opinion authorizing the Bureau of Prisons to return the more than 7,000 inmates confined to their homes during the coronavirus outbreak to federal prison. Biden’s administration is expected to review and possibly rescind that opinion, but it’s been postponed because of the delay in confirming Biden’s pick for attorney general, Merrick Garland.
How Biden acts on these issues, and how quickly he does so, will go a long way in determining the type of record he leaves on matters of criminal justice reform. That legacy, currently, is mixed. Biden has been criticized for helping push through a series of tough-on-crime bills as a senator that disproportionately harmed Black communities, but he adopted a progressive agenda as a presidential candidate and his campaign’s success was thanks in large part to the overwhelming support of Black voters.
“The time to figure out how to do this should’ve been during the transition,” said Mark Osler, a former federal prosecutor who serves as a law professor at the University of St. Thomas in Minneapolis who is pushing for a change. “The danger is that they’ll replicate the mistake the past several administrations have done of never focusing on it until it’s too late and it’s a mess.”
The White House did not respond to questions but released a statement. “President Biden has laid out an ambitious agenda to address problems in our criminal justice system that have resulted in overincarceration and miscarriages of justice, and he has a talented team of attorneys working to examine appeals for clemency to ensure sentences are consistent with the values he’s articulated,” White House spokesman Michael Gwin said.
The Department of Justice referred questions to the Bureau of Prisons, which said it was reviewing the legal opinion on returning inmates to prisons following the pandemic and had no other information.
In response to a question at a briefing last month, White House press secretary Jen Psaki said Biden would not follow Trump’s lead on pardons. “It’s not a model, I should say, for how President Biden would use his own power,” she said. She did not elaborate except to remark that the Justice Department would be treated as an independent agency — even though the DOJ is charged with making recommendations to the White House on clemency cases.
The Constitution gives the president the power “to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” That typically either comes in the form of a commutation — which reduces or eliminates a sentence, but does not wipe away a conviction — or a pardon, which disposes of all legal consequences from a crime. The cases generally start at the Justice Department’s Office of the Pardon Attorney — which has just 11 lawyers — before they are sent to the attorney general and White House counsel’s office.
In modern history, presidents have treated clemency as an afterthought, granting it in their waning days, often as a gift to friends and associates. Trump was no exception and took that a step further.
In most cases, Trump bypassed the lengthy, multilevel process for clemency that has been conducted for more than a century. Instead, he made decisions through an ad hoc system where politically connected allies and well-paid lobbyists tried to persuade him in person and on TV to use pardons to help friends and hurt enemies.
In total, Trump granted 237 pardons or commutations and denied 180 cases. Many of those he acted on were headline-grabbing: former members of Congress, numerous people convicted in Robert Mueller’s probe into Russia’s 2016 election interference, and security contractors convicted for massacring Iraqi civilians in 2008. He failed to act on thousands of other cases, leaving 13,750 behind for Biden.
But the current backlog — the largest on record, according to the Justice Department and experts — can’t be blamed on Trump alone.
Barack Obama waited well into his second term to act. When he urged federal prisoners to apply for leniency under his clemency initiative, which allowed certain inmates to make their case for getting their sentences commuted, petitions soared. He received more than 36,000 requests, the largest total of any president on record. And he acted on an historic amount — more than 22,000 cases — granting clemency 1,927 times, including 212 pardons and 1,715 commutations.
But Obama didn’t take care of all the pending cases, leaving behind 13,000 of them when he left office. And when his final pardon attorney, Deborah Leff, resigned in January of Obama’s final year in office, she lamented that the clemency initiative didn’t have enough resources.
“In his clemency initiative, President Obama focused significant resources on identifying inmates, most of them people of color, who had been sentenced to excessive and draconian sentences,” said Neil Eggleston, who served as White House counsel for Obama. “The president would have liked to clear the backlog in pending petitions, but resources spent in achieving that goal would have resulted in fewer inmates who were serving those excessive sentences for relatively minor drug crimes being released.”
What may help Biden advance the issue more than his predecessors is the changing politics. In July 2015, a group of House Republicans balked at Obama’s initiative, complaining in a letter to the attorney general that “we are deeply concerned that the President continues to use his pardon power to benefit specific classes of offenders, or for political purposes.”
But Trump made nominal support for sentence reduction and criminal justice reform a calling card issue for his reelection campaign and congressional Republicans largely followed suit.
Even old guard Republicans have expressed a desire for more leniency. In his memoir, former President George W. Bush recalled that he shared his frustration with the pardon process with Obama in the limo on the way to the 2009 inauguration. He said that if he had one piece of advice, it would be to announce a pardon policy and stick with it.
Bush wrote that he had been inundated with last-minute pardon requests from politically connected people who tried to circumvent the process. “At first I was frustrated,” he wrote. “Then I was disgusted. I came to see massive injustice in the system.”
Obama’s aides say they began talking about the pardon process during the transition but they didn’t take Bush’s advice because they had other priorities, including health care. Advocates and lawyers hope Biden learns the lessons of history and makes clemency a first term priority.
“We hope he’ll break from what folks have done in the past and do things at the last minute or as a gift,” Roseberry said. “Our position is it should be used now and as much as necessary to correct all of the wrongs that we now acknowledge from our past criminal legal system. … It takes courage to do it this year. We are ready for this. It’s time. It’s past time.”
Biden didn’t campaign aggressively on the issue of clemency. But supporters of his and Sen. Bernie Sanders (I-Vt.) did address the topic in its 110-page list of recommendations designed to try to unite the two camps ahead of the November election. One of the main proposals that the task force put forward also is one of priorities of criminal justice reform advocates: the creation of an independent clemency board.
The Biden-Sanders task force proposed a 60-person agency composed of people with diverse backgrounds to review cases. The Democratic Party’s 2020 platform, likewise, called for an independent clemency commission, taking the process out of the Justice Department, which, some activists argue, is ill-suited to submit clemency recommendations to the White House since it also prosecutes the cases.
Rep. Steve Cohen (D-Tenn.), who chairs the House Judiciary subcommittee with jurisdiction over pardons, lobbied Obama and Trump to issue more pardons. He said he plans to do the same for Biden.
“There are … more and more people in jail, and a lot of those people have been there forever and they have been there for long draconian sentences,” Cohen said. “They’re basically wasting their lives, wasting the federal government’s finances … and destroying lives and families. It’s a total loser, but we do it.”