Earlier this year the U.S. Department of Housing and Urban Development (HUD) issued new guidance asserting that housing policies that exclude people with criminal records may violate the non-discrimination provisions of the federal Fair Housing Act (FHA) if they fail to consider the nature, severity, and recency of criminal conduct and if they are not narrowly tailored to protect residents or property. The Justice Department has taken the first step toward judicial enforcement of this guidance.
On October 18 the Department’s Civil Rights Division filed a Statement of Interest in Fortune Society v. Sandcastle Towers Housing Development, a federal civil rights suit brought in the Eastern District of New York against a Brooklyn provider of low-income housing, claiming that it has a blanket policy of refusing to rent to individuals convicted of any non-traffic crime. The Statement urges the court to decide the case based on the legal framework set forth in the HUD guidance, which employs a three-step analysis to determine whether criminal history-based housing exclusion policies amount to illegal racial discrimination prohibited by the FHA.
We reprint the Department’s press release below:
The Presidential Memorandum that formally established the Reentry Council in April 2016 mandated a report documenting the Council’s accomplishments to date and plans moving forward. The resulting report, The Federal Interagency Reentry Council: A Record of Progress and a Roadmap for the Future, was issued today.
Also today the White House issued a fact sheet with new commitments to the Fair Chance Business Pledge.
Finally, the Justice Department released a National Reentry Week After Action Report.
We will be taking a close look at these reports on the federal government’s recent efforts to address collateral consequences, and expect to post the results of our review shortly.
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.
Last week Sentencing Law & Policy highlighted a new article by CCRC director Margaret Love that examines the Justice Department’s historical role in administering the president’s pardon power. The article (“Justice Department Administration of the President’s Pardon Power: A Case Study in Institutional Conflict of Interest”) concludes that an institutional conflict of interest has made Justice a progressively less responsible and effective steward of the constitutional power, and urges the president to relocate the pardon program to the Executive Office of the President. The article, to be published in a forthcoming issue of the University of Toledo Law Review, can be downloaded here. Here is its abstract:
The president’s constitutional pardon power has been administered by the attorney general since before the Civil War, but this arrangement has never been adequately explained or justified. On its face it appears rife with conflict of institutional interests: how could the agency responsible for convicting people and putting them in prison also be tasked with forgiving them and setting them free? In spite of these apparently antithetical missions, the Justice Department managed the pardon program in a low-key and reliable manner for well over a century, staffing it with a handful of career lawyers operating on a shoestring budget, and churning out hundreds of favorable clemency recommendations each year for the president’s consideration. While there were occasionally controversial grants there were never scandalous ones, and the president was able to use his power to good effect in wartime and in peace.
It is only in the past two decades that questions have been raised about the integrity and functionality of the pardon process, focusing squarely on the agency and individuals standing as gatekeeper to the president’s power. President Obama’s decision in early 2014 to launch a large-scale clemency initiative, and the Justice Department’s unprecedented decision to rely upon a consortium of private organizations to manage it, make this a propitious time to consider whether the presidency is well-served by an arrangement making officials responsible for prosecuting crime the primary source of clemency advice.
This essay concludes that the culture and mission of the Justice Department have in recent years become determinedly and irreconcilably hostile to the beneficent purposes of the pardon power, and to its regular use by the president. The only way to deal with the institutional conflict that produced and perpetuates this situation is to transfer the pardon program to the president’s direct supervision in the Executive Office of the President. This move will have a variety of benefits, including facilitating the president’s ability to oversee the workings of the criminal justice system, for which he has a special responsibility under the Constitution. More specifically, it will introduce salutary political accountability to federal prosecutions through presidential oversight and potential revision. Finally, it will give the president control for the first time in decades over his own “benign prerogative.”
The Justice Department is urging lawyers for federal prisoners to move quickly to file clemency petitions for their clients, lest the clock run out before the end of the President’s term. U.S. Pardon Attorney Deborah Leff told volunteer lawyers in a video seminar last week that petitions not submitted until Obama’s final year may not be considered, at least by him. As reported by Greg Korte of USA Today, Leff suggested that lawyers might be spending too much time briefing cases, and she encouraged them to file even if they have not been able to obtain all documents.
“While I greatly admire your legal skills, this is not the time to prepare a treatise of hundreds of pages,” she told the lawyers.
For the third time in six weeks, President Obama has spoken on the record about his intention to make more “aggressive” use of his pardon power in the final months of his term to commute long drug sentences. It appears he really means it — and the only thing that may stop him from setting a modern record (perhaps even more impressive than the drug commutations of John Kennedy and Lyndon Johnson) is the pace of recommendations coming from the Justice Department via Clemency Project 2014. (Comments on his other recent statements are here and here.)
Hopefully the President will grant more full pardons as well, though his comments on that score have been less encouraging.
In a wide-ranging interview with Buzzfeed’s Ben Smith posted on February 11, President Obama was asked about the employment difficulties faced by young black men with a felony record. His response suggests that he may be interested in addressing through his pardon power the problems faced by people with federal convictions seeking restoration of rights and status, as he addressed them through law-making as a member of the Illinois legislature. This in turn suggests to us that the Justice Department may now be engaged, at the President’s direction, in a more proactive consideration of applications for a full presidential pardon. We post the exchange in full, so our readers can judge its import for themselves: Read more
It’s that time of year again. Odds are that sometime in the next two weeks President Obama will issue some pardons and commute some prison sentences. I have never quite reconciled myself to the unfortunate and ahistorical association of pardoning with the silly turkey ceremony (the Obama girls were right to roll their eyes) and Christmas gift-giving, the result of decades of presidential neglect and sometime Justice Department sabotage of the power. But now that the season for forgiveness is upon us, I can’t wait to see what’s underneath the tree.
It was my fondest hope during the 2008 campaign that this president would want to revive the practice of pardoning, like Jerry Brown in California and Pat Quinn in Illinois, and restore a degree of regularity and accountability to the federal pardon process. But so far President Obama has issued only 52 full pardons, making him the least generous full-term president in our Nation’s history. And so far there is no indication that he intends to reinvigorate the federal pardon process, as Justice Anthony Kennedy urged in an iconic speech to the American Bar Association more than a decade ago, and as scholars and practitioners have regularly urged in less exalted settings ever since. Nor has his Administration proposed any alternative procedure by which individuals with federal convictions can avoid or mitigate collateral consequences, like the set-aside authority in the Youth Corrections Act that was repealed in 1984.
But there is some reason for optimism even this late in the game. President Obama’s evident willingness to use his constitutional power to reduce long drug sentences will hopefully have a spillover effect on the other half of the clemency caseload, the applications for full pardon from people who have long since served their sentences and gone on to live productive and law-abiding lives. There are more than 800 applications for pardon pending in the Justice Department, many from people convicted decades ago whose lives of service have been exemplary. They deserve something more than a gambler’s chance at forgiveness.