On March 28, Congresswoman Eleanor Holmes Norton (D-DC) introduced a bill that would give the District of Columbia exclusive authority, like states and U.S. territories, to grant clemency for criminal convictions under its laws. The District of Columbia Home Rule Clemency Act is part of Norton’s “Free and Equal D.C.” series. While D.C. law appears to give the mayor authority to grant clemency (D.C. Code 1–301.76), the U.S. Department of Justice (DOJ) has opined that the mayor’s clemency authority, if any, is very narrow, and that the President of the United States has authority to grant clemency in all D.C. criminal cases and exclusive authority for D.C. felonies. Under current practice, clemency petitions for D.C. convictions, like federal convictions, are submitted to the Department of Justice for the President’s consideration. In Norton’s bill, clemency includes pardons, reprieves, or commutations of sentence.
In introducing the bill, Norton said “The District, like states and territories, should have full control of its local criminal justice system, the most basic responsibility of local government. Since the D.C. Council has the authority to enact local laws, District officials are in the best position to grant clemency for local law convictions . . . . This bill is an important step in establishing further autonomy for the District in its own local affairs.” Norton’s full introductory statement is below. The text of H.R. 1765 has not yet been posted; we link the text of an earlier bill introduced by Congresswoman Norton in January 2016.
Since 2013, almost every state has taken at least some steps to chip away at the negative effects of a criminal record on an individual’s ability to earn a living, access housing, education and public benefits, and otherwise fully participate in civil society. It has not been an easy task, in part because of the volume and complexity of state and federal laws imposing collateral consequences. To encourage employers and other decision-makers to give convicted individuals a fair chance, some states have enacted or modified judicial restoration mechanisms like expungement, sealing, and certificates of relief. Others have extended nondiscrimination laws, limited criminal record inquiries, and facilitated front-end opportunities to avoid conviction.
In partnership with the NACDL Restoration of Rights Project, the CCRC maintains a comprehensive and current state-by-state guide to mechanisms for restoration of rights and status after conviction. As a part of keeping that resource up to date, we have inventoried measures enacted and policies adopted by states in the past four years to mitigate or avoid the disabling effects of a criminal record, and present it here as a snapshot of an encouraging national trend.
A forthcoming article in the Harvard Journal of Law and Policy argues that the federal pardon process ought to be restructured to make the vice president the president’s chief clemency adviser. Paul Larkin of the Heritage Foundation proposes that pardon recommendations ought to be made by an board chaired by the vice president located in the Executive Office of the President. This intriguing idea may appeal to the Trump Administration, particularly since the new vice president has had some experience with pardoning as governor of Indiana.
Here is the abstract of the article:
The need for reconsideration of the federal clemency process is a real one, and there is a consensus that the Justice Department should no longer play its traditional doorkeeper role. Using the vice president as the new chief presidential clemency adviser offers the president several unique benefits that no other individual can supply without having enjoyed a prior close personal relationship with the chief executive. Whoever is sworn into office at noon on January 20, 2017, as the nation’s 45th President should seriously consider using as his principal clemency adviser the person who was sworn into the vice presidency immediately beforehand. The president, clemency applicants, and the public might just benefit from that new arrangement.
New clemency statistics just posted on the Pardon Attorney’s website show that almost 1000 petitions for full pardon were filed in FY 2016, and that more than 1900 pardon petitions are presently pending. We have become accustomed to seeing huge numbers of commutation filings, but the large number of pardon filings is much more surprising in light of President Obama’s meager pardon grant rate to date. The 998 petitions filed in the 12-month period just concluded are almost twice the number filed in any single year since the Roosevelt Administration, including in the analogous period in the Bush 43 presidency. We reported in August that there were 1378 pardon petitions pending in June – which means that 550 new petitions must have been filed in less than 4 months. That’s as many pardon petitions as have been filed in any full year in the past 75 years.
In August we reported on President Obama’s stated intention to grant a large number of full pardons before the end of his term, in addition to sentence commutations: “I would argue that by the time I leave office, the number of pardons that we grant will be roughly in line with what other presidents have done.” But to match even George W. Bush’s 189 pardon grants, President Obama will have to grant more than 120 pardons in the next three months.
White House Counsel Neil Eggleston stated yesterday that the number of commutation grants since 2014 “make clear that the President and his administration have succeeded in efforts to reinvigorate the clemency process.” But without action on the pardon side of the clemency docket it is too early to claim more than partial success.
Mark Osler has posted a new piece arguing for an overhaul of the federal pardon process so that it more closely resembles efficient and productive state clemency systems. He argues that flaws in the process for administering the power, rather than a failure of executive will, have prevented President Obama from carrying out his ambitious clemency agenda directed atlong-sentenced drug offenders. Streamlining the process will enable presidents to use the power more generously and effectively.
This seems to us to an oversimplified solution to the theoretical and practical problems with what President Obama has been trying to do. Moreover, at least in the absence of constitutional amendment, any structural changes in the federal pardon process would have to be reaffirmed by each new president, and would likely be opposed by the Justice Department and Congress.
We have wondered whether President Obama would ever turn his attention to what has become the red-headed stepchild of the clemency caseload: full pardons to restore rights and status after service of sentence. To date President Obama has focused on commuting prison sentences, and has issued fewer pardons than any full-term president since the Civil War. It appears that the time may be at hand.
The Politico reported on Thursday that at a press conference the day after his most recent batch of sentence commutations, President Obama said he intended to grant more full pardons before the end of his term – a lot more.
At a news conference at the Pentagon on Thursday, a reporter [Greg Korte of USA Today] noted that Obama has been the stingiest two-term president on forgiveness since John Adams. Obama acknowledged that his administration has “focused more on commutations than we have on pardons.” “I would argue,” he continued, “that by the time I leave office, the number of pardons that we grant will be roughly in line with what other presidents have done.”
The President also indicated that he did not intend to change his pardoning practices at the end of his term: “The process that I’ve put in place is not going to vary depending on how close I get to the election.”
President Obama will no doubt grant more full pardons before the end of his term, in addition to more commutations. But it will be a tall order for him to match his predecessors even “roughly” in absolute number of pardons. For example, George W. Bush granted 189 pardons, Bill Clinton granted 396, and Ronald Reagan granted 393. Jimmy Carter and Gerald Ford granted 593 and 382 full pardons, respectively. By contrast, after seven and a half years Obama has granted a total of only 66 full pardons (not counting the four pre-conviction pardons granted to Iranians prior in last year’s foreign policy “swap”). Only George H.W. Bush had issued fewer grants nearing the end of his tenure — and to be fair he served only one term and received far fewer applications.
Yesterday President Obama participated in a panel discussion of criminal justice issues moderated by Bill Keller of The Marshall Project and streamed to the public. While the subject of clemency did not come up during the videotaped panel discussion, in a prior interview with Keller the President said that he intended to “speed up the process” of considering prisoner petitions seeking commutation of sentence. At the same time, he again signaled that he was not similarly interested in cases involving dated convictions where a petitioner is seeking pardon to relieve collateral consequences:
Joe Palazzolo has posted at the Wall Street Journal Blog an article describing an amicus brief filed yesterday in United States v. Jane Doe (Jane Doe II), one of two federal expungement cases before Judge John Gleeson that we’ve been following. Argument in Jane Doe II is now scheduled for October 26. (The government has appealed Judge Gleeson’s May 21 expungement order in Jane Doe I to the Second Circuit Court of Appeals.) The brief begins like this:
This Court invited the views of Amica on the Court’s authority to issue “a certificate of rehabilitation in lieu of expungement” and the appropriateness of issuing such a certificate in this case. While there is no federal statute that authorizes a court to issue relief styled as a “certificate of rehabilitation,” Amica wishes to bring to the Court’s attention two mechanisms, each perhaps underappreciated but with deep historical roots, by which the Court may recognize an individual’s rehabilitation and otherwise address issues such as those raised by petitioner’s case. The first is by exercising its statutory authority to issue a writ of audita querela, which is available in extraordinary circumstances under the All Writs Act, 28 U.S.C. §1651, to grant a measure of relief from the collateral consequences of conviction. The second is by recommending to the President that he grant clemency.
The blog post describing the brief is reprinted in full after the jump.
The Justice Department has decided to pursue its appeal of Judge John Gleeson’s May 21 order expunging the conviction of a woman who could not keep a job because of her criminal record. Its brief in U.S. v. Doe (Jane Doe I) can be accessed here.
Meanwhile, briefing is underway in Judge Gleeson’s second expungement case (Jane Doe II), in which he has also asked the parties and a “policy expert” to advise him on his authority to issue a “certificate of rehabilitation.” Judge Gleeson commented to the New York Times on the general problem of collateral consequences:
“As a society we really need to have a serious conversation on this subject of people with convictions’ never being able to work again,” Judge Gleeson wrote in an email. “A strong argument can be made that the answer to this problem should be more systemic, through legislation, not on a case-by-case basis in individual judges’ courtrooms.”
Petitioner’s brief in Jane Doe II is due on October 5, the brief of the “policy expert” is due on October 8, and argument has been scheduled for October 15. The government’s brief is here, and briefs of petitioner and amicus will be posted here when filed.
Slate has posted a new piece by Leon Neyfakh entitled “The Pardon Process Is Broken.” The piece points out that “presidents are granting clemency far less often than they once did,” and asks “Why?” It answers its own question by distilling an article by Margaret Love to be published in the Toledo Law Review, which argues that the low grant rate reflects overwhelmingly negative recommendations from the Justice Department. In response to Slate’s invitation, Justice had the following comments on Love’s proposal:
The mission of the Department of Justice is to enforce the law and defend the interests of the United States according to the law; to ensure public safety against threats foreign and domestic; to provide federal leadership in preventing and controlling crime; to seek just punishment for those guilty of unlawful behavior; and to ensure fair and impartial administration of justice for all Americans. The work of the Office of the Pardon Attorney is an integral part of the Department’s mission.
These comments seem to concede the point that the Office of the Pardon Attorney has ceased to operate as an independent source of advice for the president in clemency matters, but instead has become an extension of the law enforcement agenda of the Department’s prosecutors. They evidence the key role the Justice Department has played in the atrophy of the constitutional pardon power.