Tag: Rand Paul

Dissecting the REDEEM Act

The REDEEM Act, introduced in the US Senate in March by Senators Corey Booker (D–NJ) and Rand Paul (R–KY), seeks to expand employment opportunities for those with federal criminal records by giving federal courts sealing authority. Because courts have generally held they do not have inherent authority to seal records — at least where an arrest or conviction is valid — the Act would open an entirely new avenue of relief from many of the collateral consequences that result from a federal arrest or conviction. While in the past similar bills have not made it out of committee, the attention that criminal justice reform is currently receiving on the national political stage and the REDEEM Act’s bipartisan support could give the Act a fighting chance. The Act, as introduced, is not without its flaws. Chief among them are its vague definition of what crimes are eligible for relief, the broad discretion courts would have to deny relief for eligible offenses, the significant exceptions to the confidentiality of sealed records, and the uncertain effect of sealing on collateral consequences. The good news is that the Act’s defects are not structural and can be easily remedied through the legislative process. This post contains a nuts and bolts overview of the Act. In subsequent posts, we will take a closer look at ways the Act could be improved.  Since the procedures and eligibility criteria applicable to adult and juvenile offenses differ in significant ways, we look at each in turn. I. Adult offenses A. Eligibility With the exception of waiting periods, the same eligibility standards apply to both conviction and non-conviction records. Eligible offenses Sealing is generally available for “covered nonviolent crimes,” a category that excludes many (though not all) crimes involving physical force, most sex offenses, and many crimes against minors.  Crimes of violence that are ineligible for sealing are defined at 18 U.S.C. § 16: The term “crime of violence” means– (a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. Given the uncertain contours of this definition, it will often be unclear whether a specific offense constitutes an ineligible crime of violence under § 16. The definition, which is incorporated into a number of federal statutes, has already generated considerable litigation. Much more can be expected if the Act becomes law without closing off the potential for argument over the eligibility status of specific offenses. Ineligible sex offenses are listed at 42 U.S.C. § 16911, and also include a number of non-sexual crimes against minors. Section 16911 offenses are more clearly defined than crimes of violence, though ambiguity will still exist in some cases since many of the offenses listed in § 16911 are defined by conduct and without reference to any particular federal criminal statute or to elements of the offense. Examples include crimes against a minor “involving” false imprisonment or use of a minor in a sexual performance, descriptions that could refer to several specific federal crimes. Prior convictions Sealing is unavailable to anyone convicted of an ineligible felony offense at any time and to anyone convicted of more than two eligible felonies (including those that have been sealed). Interestingly, non-federal “nonviolent crimes” are not considered for eligibility purposes, though what constitutes such an offense is not clear since the language used does not track that used to define eligible offenses (“covered nonviolent offense”). Multiple convictions related to the same act or committed at the same time are considered a single conviction for eligibility purposes.  Additionally, unless the court determines that treating the convictions as a single offense is not in the public interest, up to three convictions may be treated as one if they relate to the same indictment, information, or complaint; were all committed within a three month period; or were addiction-related. Waiting Period Conviction records may only be sealed after a person has fulfilled every requirement of his or her sentence. If sentenced to prison or supervision for an eligible offense, a person may not petition until 1 year after release from prison or supervision, whichever is later. No waiting period applies to non-conviction records. B. Procedure and burdens The same procedures and standards apply to both conviction and non-conviction records. A petition for sealing may be filed in any U.S. district court.  Upon filing, the court must notify the U.S. attorney that prosecuted the offense and any person the petitioner seeks to have testify in support of the petition. A hearing on the petition must be held within 6 months unless the government agrees to a waiver of hearing, in which case a determination on the petition must be made by the court within six months. For the the court to deny an otherwise valid petition, the government must show that: (I)(aa) the interest of public knowledge and safety; and (bb) the legitimate interest, if any, of the Government in maintaining the accessibility of the protected information, including any potential impact of sealing the protected information on Federal licensure, permit, or employment restrictions” outweighs the petitioner’s interest regarding: (II)(aa) the conduct and demonstrated desire of the petitioner to be rehabilitated and positively contribute to the community; and (bb) the interest of the petitioner in having the protected information sealed, including the harm of the protected information to the ability of the petitioner to secure and maintain employment. In making this determination, the court may consider all evidence and testimony offered by the petitioner, their witnesses, and the prosecutor. However, the court may not consider an arrest, prosecution, or conviction for non-federal non-violent or non-sexual offenses. If a petition for sealing is denied, a person must wait two years before petitioning again to seal records of the same offense. C. Effect A sealed record is rendered unavailable to public examination, except by court order. [1]. A sealed “offense and any arrest, criminal proceeding, conviction, or sentence relating to the offense shall be treated as if it never occurred,” except as otherwise specified in the Act. Records that are sealed must be labeled as such and physically closed.  The court must seal its own paper and electronic copies of the record and must send copies of the sealing order to “each entity or person known to the court that possesses a record containing protected information that relates to the offense, including each law enforcement agency and public or public or private correctional or detention facility.”  Those entities must then seal the record and submit written certification of sealing to the court, which then notifies the petitioner. It is a misdemeanor to “intentionally make or attempt to make an unauthorized disclosure of any protected information from a record that has been sealed,” though significant exceptions apply. [2] Sealed records may be disclosed for the purpose of conducting background checks for law enforcement employment and for employment that a federal agency has designated as a “national security position” or “high-risk public trust position.” This means that records will be available to a great number of federal agencies, government contractors, and other employers like nuclear power plants, and others required to access classified information. Sealed records may also be disclosed to the military for “the purpose of vetting an enlistment or commission, or with regard to any member of the Armed Forces.” Law enforcement agencies and the Attorney General may access sealed records for prosecutorial/investigatory purposes, and prosecutors may disclose records pertaining to potential witnesses in federal or state criminal or delinquency proceedings. Additionally, the Attorney General (who is required to maintain a non-public record of all records sealed under the act) may disclose a sealed record upon determining “that disclosure is in the interest of justice, public safety, or national security.” The Act provides no standards governing the AG’s use of this authority — something that will hopefully be addressed in committee. A person whose record has been sealed is immune from civil or criminal liability for perjury, false swearing, false statements with respect to that record, except before entities to which disclosure is authorized by the act. Otherwise, sealing confers no special rights and appears not to have a restorative effect on any rights lost as a result of conviction or arrest.  Though the Act does provide that an offense or proceedings that is sealed “shall be treated as if it never occurred,” it is not clear how a person can enforce that right against third parties like employers or licensing boards seeking to use the fact of an arrest or conviction in a hiring or licensing decision. To underscore that point, there are no provisions in the Act that address employment and licensing discrimination against persons with sealed records. There are also no provisions addressing the status of records maintained by commercial criminal record providers. [3] It is worth emphasizing that the Act does not make clear what if any effect a sealing order has on the myriad collateral consequences arising under state and federal law.  Hopefully this and other uncertainties about the legal effect of a sealing order can be addressed as the bill goes through the committee process.      II. Juvenile offenses Records of eligible juvenile delinquency adjudications are automatically sealed after a waiting period (or earlier, upon petition) and may be expunged upon petition (automatically in some instances). Juvenile records for eligible offenses that did do not result in a delinquency finding are automatically expunged. Juvenile offenses eligible for sealing and expugement are those that do not qualify as violent crimes under 42 U.S.C. § 5603(27), or as sex offenses under 42 U.S.C. § 16911. The definition of “violent crimes” under § 5603(27) is much narrower and clearer than the definition that applies to adult offenses. the term “violent crime” means- (A) murder or nonnegligent manslaughter, forcible rape, or robbery, or (B) aggravated assault committed with the use of a firearm   Ineligible juvenile sex offenses are defined in the same manner as adult offenses. A. Sealing Records of eligible delinquency adjudications are automatically sealed by court order three years after completion of sentence if a person has no subsequent convictions during the waiting period and no charges are pending against the person. Unlike adult sealing, there is no limit on the number of juvenile adjudications that may be sealed, nor on sealing following conviction for an ineligible offense. A delinquency record may be sealed earlier than three years upon petition. Procedures for early sealing petitions are the same as those applicable to adult petitions, with the following exceptions: Instead of balancing interests, the court determines whether to grant a petition by considering a number of factors including the nature of the offense, age of the petitioner at commission, subsequent criminal involvement, adverse consequences that may face the petitioner if sealing is not granted, and evidence offered by the prosecutor. No burdens are specified, and there is no prohibition on considering non-federal charges, convictions, or adjudications. The effect of juvenile sealing (both automatic and early) is identical to that of adult record sealing. B. Expungement In addition to sealing, juveniles may also have eligible records expunged. Expungment has the same effect as sealing, but with additional protections. Expunged records must be physically destroyed by the courts and each entity or person in possession of the record, and there are no exceptions that allow for disclosure of expunged records for any purpose. The courts, law enforcement, and any agency that provided treatment or rehabilitation services to the juvenile subject to court order must respond to any inquiry about the existence of an expunged record in the negative, and a person cannot be required to disclose the existence of their own expunged record. Expungement of juvenile records is automatic[4] in some instances, and discretionary in others. Records of delinquency adjudications for crimes committed by a person younger than 15 are automatically expunged upon turning 18. Records of arrests and proceedings resulting in dismissal or a “not delinquent” findings are also automatically expunged. While expungement of “not delinquent” records is required at disposition, no time-frame is specified for dismissal records. A person found delinquent for a crime committed after turning 15 may petition for expungement in the same manner in which they would petition for early sealing. The same procedures and considerations applicable to early sealing apply, except that there is no requirement that a person complete any ordered detention or supervision prior to filing an expungement petition.   You can find the full text of the REDEEM Act here, and Senator Booker’s press release describing the Act’s intent here.  Check back soon for a more detailed look at some of the specific issues raised by the Act.     [1] The act does not specify the basis for issuing such an order. [2] The Act does not specifically define what disclosures are “unauthorized.” While disclosure of a record held by any entity that received a copy of the sealing order from the court would presumably qualify, whether disclosure by an entity that did not receive such an order qualifies is unclear (though one would expect that some notice of sealing in some form would be required for prosecution of unlawful disclosure). It is also unclear whether an entity in possession of a sealed record can confirm that a record exists without revealing the actual contents of the record.  Entities required to expunge a juvenile record under a different section of the Act are explicitly required to deny the existence of an expunged record, but there is no similar provision that applies to sealed records. [3] Though the court can apparently order sealing by any entity known to possess a a record, the fact that identical records are maintained by numerous and often unknowable commercial criminal information providers means the Act will likely be ineffectual at completely purging records from their databases. [4]  Though the law describes expungement in some instances as “automatic,” and states that such “expungement shall not require any action by the person whose records are to be expunged,” expungement is not effective by operation of law.  For crimes committed under the age of 15, and where charges were dismissed, the Attorney General is obligated to file a motion for expungement in the district court, and the court is required to grant the motion. In proceedings where a juvenile is found not delinquent, the court is required to issue an expungement order concurrently with a not delinquent finding.     Read more

Forgiving v. forgetting: A new redemption tool

The following thought-provoking piece about the growing popularity of judicial “certificates of good conduct” was first published in The Marshall Project (www.themarshallproject.org) a nonprofit news organization focused on the US criminal justice system. The “forgiving” approach to avoiding or mitigating collateral consequences is an important alternative to the “forgetting” approach advocated by proponents of expungement or sealing, which tend in any event to be limited to minor dated offenses or arrests not resulting in conviction.         Forgiving v. Forgetting:  For offenders seeking a new life, a new redemption tool. In February of 2003, a much younger Barack Obama rose before the Illinois State Senate to introduce a new piece of legislation that, he said, contained a compromise. The bill would help job-seekers who had long ago been convicted of a nonviolent crime (or two, at most) overcome the barriers to employment that came with having a criminal history. But the bill would do so without expunging their records. Instead, Obama’s bill would create a final, years-later stage on the timeline of these ex-offenders’ cases. They had already completed the stages of arrest, booking, indictment, plea bargaining or trial, sentencing, incarceration and/or probation. Now, ex-felons who had stayed crime-free for a few years would be eligible to come back to court and, in a full-blown hearing before a judge, attempt to “prove” that they had been rehabilitated. Any ex-offender who succeeded in doing so, Obama announced, would be granted one of two new legal documents, the Certificate of Good Conduct or the Certificate of Relief from Disabilities. The certificate would represent an official assurance to employers – though, again, short of full expungement – that the ex-offender should no longer be judged for his or her crimes. More concretely, the good conduct certificate would make the ex-offender eligible for a range of municipal jobs, including in the public schools, the transit system, and the parks; the certificate of relief would remove barriers to a range of licenses, from real estate to barbering, cosmetology, and mortician’s licenses. Finally, any private employer who hired the now officially rehabilitated ex-offender would be insulated from liability suits claiming negligent hiring. Obama’s bill was passed and went into effect one year later. Ever since, the granting of so-called Certificates of Rehabilitation has become an increasingly popular compromise version of full expungement in courts around the country. Between 2009 and 2014, nine states and Washington, D.C. began issuing the documents, also called certificates of relief, recovery, achievement, or employability. “These certificates are a remarkably dynamic new option,” says Kari Hamel, a civil legal aid attorney in North Carolina who is working to make the certificates – available in that state since 2011 – more accessible to more people with criminal records. “It’s a way of showing employers that the crime someone committed probably wasn’t committed yesterday. It makes what has happened since the crime a fully official part of that person’s record, for all employers to see.” “That’s the key,” she adds. “Rehabilitation is absolutely a part of a person’s history of trouble with the law, it’s just the second part, the positive part.” Paul Biebel, the presiding judge for Chicago’s criminal court, agrees that the certificates are a promising new option. “Only over the last few years have we seen more of these coming through the court,” he says of the certificates, “but I feel very strongly that they are an additional tool in a judge’s toolbox to evaluate people. We judges are prepared to send people to prison. But now, if the evidence proves rehabilitation, we also have a tool for redeeming people.” The new certificates have burst onto the scene amid emerging bipartisan consensus that the consequences for committing low-level nonviolent crimes – including the collateral consequences, such as difficulty getting a job[1] years later – should not be interminable. The Redeem Act, a bill sponsored by Senators Cory Booker and Rand Paul that would expand expungement for crimes committed as a juvenile, has picked up steam in Congress. President Obama, meanwhile, has highlighted the issue of the long-term impact of criminal records, particularly through his My Brother’s Keeper[2] initiative. This consensus is rooted in the fact that between 70 and 100 million Americans have an arrest, charge or conviction in their pasts. And, with the rise of the Internet, even a minor run-in with the law has been transformed from a temporary experience into a permanent one. This does not mesh well with the American ideal of self-reinvention. Yet despite the emerging agreement that many ex-offenders deserve second chances, not everyone agrees that these new certificates are the best way to go about providing redemption. Sharon Dietrich is one such critic. Dietrich is a civil legal aid attorney in Philadelphia and the author of “One Strike and You’re Out,” a report on the collateral consequences of criminal records, and she believes full expungement is always preferable to certificates. “Forgetting,” she says, “either by expunging someone’s record altogether or by permanently sealing it, is a much better solution than forgiving, which is what these certificates claim to do.” The certificates are a “weak compromise,” she adds, because they “rely on employers to do the right thing. But most employers will ignore the document that says you’ve been rehabilitated, and focus instead on the part about how you were arrested.” Supporters of the certificates argue that “forgetting” is a pipe dream. For one thing, law enforcement agencies often resist expungement, because it purges the record of information that might be useful in future investigations. James Jacobs, a professor of law at New York University and the author of “The Eternal Criminal Record,” says that even if expungement were more available, it would be a kind of “fraud” in the age of the Internet. “Expungement is not amnesia,” he says. “The information remains out there on the Internet. These private background check companies [such as LexisNexis, HireRight, and FirstAdvantage] have no incentive to remove expunged or out-of-date information.” Background checks on job applicants are frequently inaccurate[3] even without expungement, he said. Then again, certificates are not useful at all if ex-offenders – and employers – do not know about them, or do not know who is eligible. And even once ex-offenders know about the option, the process of affirmatively filing for a certificate is extremely complex. The burden to prove rehabilitation is on the applicant, not the prosecution. To be successful requires gathering documents from multiple agencies, letters of support from community members, and proof of sobriety, then arranging all of it into a narrative that demonstrates “rehabilitation.” In other words, the success of these certificates depends heavily on local lawyers, primarily from civil legal aid[4] organizations, taking a grassroots approach to informing people about what certificates are available and how to file for them. In New York, for instance, one of the few states to begin offering the certificates before Illinois, an average of only 261 per year were issued between 1995 and 2005. Between 2007 and 2010, as civil legal aid organizations started educating ex-offenders about the certificates, that number shot up to 2,040 per year. More recently, two of the most robust approaches to making these new certificates more accessible and understandable are underway in Illinois and North Carolina. In Chicago, Cabrini-Green Legal Aid has led the effort to inform people about the certificates. CGLA operates a Help Desk at the downtown Chicago courthouse, as well as a dial-in hotline, to educate ex-offenders about the certificates and get them started with the application process. And, according to Cynthia Cornelius, CGLA’s director of client and community services, the organization has recently begun to meet with and educate local employers. “None of this works unless employers know what these certificates are,” she says, “and why they should respect job applicants who have earned the certificates.” But making the certificates a useful option is not only about education, it is also about representation. So, in a statewide effort called Second Chances,[5] sixteen of the Illinois’ largest law firms have partnered with CGLA, supplying hundreds of pro bono lawyers to help process petitions for certificates. Down in North Carolina, the first step was to make the certificates available under the law, as Obama did in Illinois. Despite the anti-progressive climate in the state legislature, says Bill Rowe, chief counsel of the North Carolina Justice Center, securing “certificate legislation” was politically feasible. “Democrat or Republican, we all know someone here in North Carolina with a minor mistake holding them back,” says Rowe, “and minor mistakes are the types of mistakes we’re talking about forgiving with these certificates, not major mistakes. It’s not a ‘them’ issue, like some of the other divisive issues in the legislature; it’s an ‘us’ issue.” With the certificates in place, the next step was getting the word out. Hamel, the civil legal aid attorney, explains that Legal Aid of North Carolina operates mobile legal clinics deep in the Blue Ridge mountains, informing the people there about the certificates. Before each clinic, Hamel notifies the local newspapers in the towns where she is headed, asks the radio stations to broadcast PSAs, and contacts local domestic violence shelters and V.A. centers to get people to come out for the clinic. To bring employers on board, Hamel has help from Ben David, a local D.A. in Wilmington, North Carolina, who has convened the Hometown Hires program. David meets regularly with hundreds of the top employers in southeastern North Carolina to convince them to hire people with criminal records, especially people who have these certificates. “This is about working on criminal records,” David says, “which takes a lot of time, because it’s about the long-term, not just the open-and-shut part of the case. But as a D.A., I feel I should take active steps to stop prosecuting folks who are just trying to get jobs, and these certificates and the other new options, I think, are a way of stopping the endless prosecution of job seekers.” But in the end, says Jacobs, even with robust information campaigns, certificates are “not a magic bullet.” “If everyone gets a certificate,” he says, “then the certificate has no credibility, and employers won’t respect it. So we can’t give certificates to people who don’t deserve one.” But the hard truth, Jacobs says, is that a considerable fraction of people with criminal histories do not deserve a certificate, because they “are still struggling with drug addiction, mental illness, and tremendous deficits. They are not rehabilitated to the point of deserving a certificate, but they do deserve our help.” In other words, rehabilitation for most ex-offenders requires actually working with them while they are being rehabilitated, not just rewarding them afterward if they can do it on their own. “Finding a route back to where some of these people have never been,” says Jacobs: “That requires more than just a certificate.”     [1] Over 80 percent of employers run criminal background checks, according to the Society for Human Resource Management. [2]  My Brother’s Keeper initiative is a collaboration between the White House and local businesses, foundations, and cities, aimed at creating more jobs and civic opportunities for young men of color [3] In 2012, 600,000 job applicants received inaccurate FBI background checks. For these reasons, Jacobs argues, ex-offenders are better off if they are equipped with an affirmative document, like a certificate, with which they can respond when employers inevitably find something damning on the Internet. [4] The right to counsel is not guaranteed when there is no active criminal prosecution, which is why civil legal aid lawyers, not criminal defenders, are responsible for helping people with these certificates. [5] The Second Chances program is part of the nationwide IMPACT Project, a project inspired by Vice President Joe Biden to encourage pro bono lawyers to work more closely with legal aid lawyers.     Read more

President promises a more “open” pardon process, more pardon grants

During a Town Hall in South Carolina on March 6, President Obama spoke for the second time in recent weeks about his intention to use his pardon power more generously in the final two years of his term. Responding to a criminal defense attorney who asked what she could do to “increase the number of federal pardons,” the President explained that he was taking a “new approach” to pardons after receiving surprisingly few favorable recommendations from the Justice Department during his first term.  He said he had asked the Attorney General to “open up” the pardon process, and to work with advocacy groups and public defenders to make people more aware of the availability of this relief: [W]hen I came into office, for the first couple of years I noticed that I wasn’t really getting a lot of recommendations for pardons that — at least not as many as I would expect. And many of them were from older folks. A lot of them were people just looking for a pardon so they could restore their gun rights. But sort of the more typical cases that I would have expected weren’t coming up.   So I asked Attorney General Holder to work with me to set up a new office, or at least a new approach, inside the Justice Department. Because historically, what happened was the President would get a big stack of recommendations and then he could sign off on them — because obviously, I don’t have time to go through each request. And so what we’ve done now is open it up so that people are more aware of the process.  And what you can do is contact the Justice Department. But essentially, we’re now working with the NAACP, we’re working with various public defenders offices and community organizations just to make people aware that this is a process that you can go through. The President advised that “typically we have a pretty strict set of criteria for whether we would even consider you for a pardon or commutation,” and directed the inquirer to the Justice Department website where he said those criteria can be found. So my first suggestion would be to go to the Justice Department website.  If the person doesn’t qualify because they may have served time but there were problems when they served time, or if it was a particularly violent crime, or they may just not fit the criteria where we would consider it — a lot of what we’re focused on is non-violent drug offenses where somebody might have gotten 25 years, and she was the girlfriend of somebody and somehow got caught up, and since then has led an exemplary life, but now really wants to be able to start a new career or something like that.  That’s the kind of person, typically, that would get through the process. So, a couple of things about the President’s comments.  As in his BuzzFeed interview ten days ago, and as reported by Greg Korte in USA TODAY, the President seems genuinely willing to consider requests for full pardon from people who have completed their sentences and “led an exemplary life, but now really want[] to be able to start a new career.” This is good news. President Obama has taken a commendable interest in prisoner requests for sentence commutation, but his record of granting full pardons to date has been disappointing: Available statistics indicate that he has granted fewer full pardons than any full-term president since John Adams. On the other hand, the President’s “new approach” to handling clemency requests, and his promise of a more “open” pardon process seems so far not to have materialized.  In fact, the Justice Department’s pardon process appears to be more opaque and overburdened than ever before. This is largely because of the “clemency initiative” announced by the Attorney General in April of last year, which invited federal prisoners serving long prison terms to apply for commutation of sentence. Not surprisingly, many have accepted this invitation. The Washington Post reported on February 29 that “more than 35,000 inmates — about 16 percent of the federal prison population — have applied to have their sentences shortened under the Justice Department-led initiative,” either directly with the Office of the Pardon Attorney (OPA), or with the consortium of private organizations known as Clemency Project 2014.  Most of the applications are being processed through this private screening process.  The Post reports that “a complicated review process” has “slowed” the processing of this “massive influx of applications.”  After a full year, no grants have yet been made to applicants vetted by Clemency Project 2014, and according to the Post article it has to date submitted only 14 petitions to be considered for clemency. In addition to the thousands of prisoner petitions, more than 800 applications for full pardon have been filed with OPA, some of which have been fully investigated and awaiting disposition for some time.  While it is true (as the President said) that many pardon petitioners are interested in restoration of their firearms rights (there is no other way), or are simply seeking official recognition that they have paid their debt to society, many others are badly in need of relief from the harsh consequences of conviction in the workplace and in the community.   With DOJ resources and attention focused on commutation requests, pardon cases appear to have been put on the back burner, and the newly appointed Pardon Attorney has so far declined requests to meet or speak about this neglected aspect of her office’s workload. Never before in our history has the pardon power played a more important role in the justice system, and never before has the official pardon process seemed so dysfunctional.  It is understandable that the President would be reluctant to use an extraordinary constitutional power to address systemic problems with the legal system, but then one might expect to see him encourage legislative substitutes for pardon, such as the judicial certificates whose enactment in Illinois he himself secured a decade ago, or even the federal expungement proposal sponsored by Senators Cory Booker and Rand Paul.  The Justice Department has available to it statutory authority for seeking sentence reduction from the courts, but it has been unwilling to use it except for prisoners who are dying or completely disabled. President Obama’s comments expressing impatience with the output of the Justice Department’s pardon process are eerily reminiscent of President Bill Clinton’s comments expressing frustration with the pardon process shortly before the end of his term: I have done–I haven’t seen the final numbers, but before the last batch at least, I had done fewer than any President in almost 30 years. And part of that, frankly, is the way the system works, something I’m not entirely satisfied with.   The consequences of President Clinton’s dissatisfaction with the official pardon process at the end of his term are well known.  President Bush experienced a similar disappointment in the official process, and attempted to warn his successor.  George W. Bush, Decision Points 105 (2010)(““On the ride up Pennsylvania Avenue on Inauguration Day, I told Barack Obama about my frustrations with the pardon system. I gave him a suggestion: announce a pardon policy early on, and stick to it.”) Let us hope that there is still time before the end of his term for President Obama to get what he wants from the Justice Department’s pardon process, something Presidents Clinton and Bush were not able to do, or to put in place a substitute for it.  If past is prologue, this will not happen if the Justice Department is left to its own devices. Getting the Justice Department’s pardon process to deliver a substantial number of favorable recommendations, whether in commutation or pardon cases, will take direct hands-on intervention from the White House, by people who have an understanding of how the process can and should work to serve the presidency as well as the American public.  Otherwise, one can predict only a token number of commutation grants and a scrum of pardon favor-seekers outside the White House Counsel’s door in the final days of President Obama’s term.  He can’t say he wasn’t warned.     Read more