Tag: Rand

Making the research case for hiring people with a conviction record

To persuade employers and policymakers to make fact-based decisions on hiring people who have been involved with the criminal justice system, they need the research facts presented in an accessible way. A new, short, sharable publication from Dr. Shawn Bushway at RAND explodes many of the myths about people with a conviction record that keep them from getting hired. Using plain language for hiring managers, it lays out the deep body of research that can help them make better decisions. The research brief “Resetting the Record: The Facts on Hiring People With Criminal Histories” is designed to help overcome fear-based skepticism about hiring people with records. It includes citations to the underlying research for advocates who want to learn more. Read more

Waiting for Relief: A National Survey of Waiting Periods for Record Clearing

Our new report is the first-ever comprehensive national survey of the period of time a person, who is otherwise eligible to expunge or seal a misdemeanor or felony conviction record, must wait before obtaining this relief. Waiting periods are usually established by statute and can range from 0 to 20 years. Typically, during a waiting period the person must be free from certain forms of involvement with the justice system: from a felony conviction, from any conviction, or from any arrest, again depending on state law. These and other conditions and circumstances may extend (or occasionally shorten) the length of a waiting period in specific cases. Waiting for Relief: A National Survey of Waiting Periods for Record Clearing  The waiting periods for misdemeanor convictions range from a high of 10 or 15 years in Maryland (depending on the nature of the offense) to 0 years in Mississippi (although only first-time offenses are eligible), with most states falling at the lower end of that range. Of the 44 states that authorize clearing of misdemeanor convictions, a near-majority have waiting periods of 3 years or less (19 states) and the vast majority have waiting periods of 5 years or less (35 states). The waiting periods for felony convictions range from as high as 10 or 20 years in North Carolina to as low as 0-2 years in California, with most states falling at the lower end of that range. Of the 35 states that authorize clearing of felony convictions, a near-majority have waiting periods of 7 years or less (17 states). Many waiting periods, notably longer ones, reflect a concept of record clearing via expungement or sealing as “recognition of successful rehabilitation and reason to terminate legal disqualifications and disabilities.”[1] In recent years, however, many states have shortened waiting periods in recognition of the constructive role that record clearance plays in facilitating reentry and rehabilitation, reasoning that individuals “need the most assistance immediately after release from prison or termination of sentence.”[2] The seven (7) states that have enacted a general conviction sealing authority for the first time since 2018 have generally (though not invariably) provided shorter waiting periods than states with more venerable systems.[3] Data on recidivism dating from the 1990s reinforced policy arguments that waiting periods should be long enough to reduce the risk of reoffending after record clearance. But new research on recidivism suggests that shorter waiting periods need not raise public safety concerns. Researchers at the RAND Corporation have raised questions about decades of received truth about the prevalence of reoffending after people leave prison, proposing that the majority of individuals with a conviction do not have a subsequent conviction, and that a person’s likelihood of being convicted again declines rapidly as more time passes.[4] This new research would seem to cast doubt on the legitimacy of concerns that shortening waiting periods necessarily raises public safety concerns.  Indeed, to the contrary, it suggests that it may be possible to reconcile the seemingly inconsistent policy goals of facilitating and recognizing rehabilitation through shorter waiting periods. The full report is available here. — [1] James Jacobs, The Eternal Criminal Record 131 (Harvard Univ. Press 2015). [2] Id. See also Brian M. Murray, Retributive Expungement, 169 U. Pa. L. Rev. 665, 695 (2021); J.J. Prescott & Sonja B. Starr, Expungement of Criminal Convictions: An Empirical Study, 133 Harvard L. Rev. 2460, 2479 (2020); Jeffrey Selbin et al., Unmarked? Criminal Record Clearing and Employment Outcomes, 108 J. Crim. L. Criminology 1, 52 (2018). [3] States that have reduced their eligibility waiting periods since 2016 are Arkansas, Massachusetts, Michigan, Missouri (twice), Nevada, New Jersey (twice), North Carolina, Ohio, Oklahoma (twice), Oregon, South Dakota, Vermont (twice), Washington. States that have enacted a general conviction sealing authority for the first time since 2018 are Alabama, Arizona, Connecticut, New Mexico, North Dakota, Virginia, West Virginia. Additional information about waiting periods in these states can be found in the Restoration of Rights Project. [4] Shawn Bushway et al., Providing Another Chance: Resetting Recidivism Risk in Criminal Background Checks, RAND Corp. (2022),  https://doi.org/10.7249/RRA1360-1. Read more

A radical new approach to measuring recidivism risk

NOTE: This post has been updated as of 4/2 to incorporate additional research. Researchers at the RAND Corporation have proposed a radical new approach to measuring recidivism risk that raises questions about decades of received truth about the prevalence of reoffending after people leave prison.  At least since the 1990s, the Bureau of Justice Statistics has measured risk of recidivism at the time of a person’s last interaction with the justice system, when the statistical cohort includes many who are frequent participants in the criminal system as well as those for whom it is a one-time affair.  As a result, employers and others tend to interpret background checks as overstating the risk posed by someone who in fact may have been living in the community for years without criminal incident, and is unlikely to become criminally involved again. In Providing Another Chance: Resetting Recidivism Risk in Criminal Background Checks, Shawn Bushway and his RAND colleagues argue that risk should instead be measured at the time a background check is conducted, after an individual has had an opportunity to demonstrate their ability to reintegrate lawfully as well as their propensity to reoffend.  They label this the “reset principle,” and argue that this more individualized approach to risk assessment promises to improve the predictive value of criminal background checks.  In fact, they propose that it will “strengthen the case that people with convictions can, and usually do, change their ways.” Coupled with other studies showing that the risk of recidivism depends on a variety of factors (e.g., age at time of offense), this new RAND study suggests that general “time to redemption” research should not be relied upon to predict future behavior of specific individuals. The premise of the “reset principle” seems reasonable and even self-evident once explained.  And, if models based on the reset principle are developed into viable tools that employers and others can use to assess recidivism risk, these models may offer many with criminal histories a way to demonstrate that they should be offered another chance.  But there is a good reason why this has not already been done: it has been hard to identify data that would account for a sufficiently long period of time that an individual spends free in the community after their last interaction with the criminal justice system to accurately measure risk of reoffending. As Bushway and his colleagues point out, this sort of data collection requires long-term surveillance that implicates issues of privacy. The large data set from the North Carolina Department of Public Safety allowed the researchers to measure the frequency with which people who have a conviction are reconvicted over a ten-year period, how quickly their likelihood of reoffending declines, and how their risk profiles change.  They reached three highly significant conclusions based on the North Carolina data: The majority of individuals with a conviction do not have a subsequent conviction. A person’s likelihood of being convicted again declines rapidly as more time passes After a sufficient period without a new conviction, even people initially deemed to be at highest risk for recidivism (such as those with a more extensive criminal background) transition to risk levels that appear similar to those initially at the lowest risk. The RAND researchers caution that “prediction models that work in a specific context are not guaranteed to work in other contexts,” and that “there is no one-size-fits-all solution.” With that caveat, based on their conclusions respecting the North Carolina data, they make a series of recommendations: Policymakers should recognize that, over an extended sampling period, most people who get convicted are not reconvicted. This provides a fact base for policymaking that differs from findings by the Bureau of Justice Statistics that articulate that, in a given cohort of people released from prison (e.g., in a given year), most people experience another conviction. Updates to the Uniform Guidelines on Employee Selection Procedures can validate a new class of models, such as those that satisfy the reset principle, providing employers a more certain defense to challenges to their employment decisions. Policymakers and other decisionmakers should make determinations about risk thresholds that are applied in a particular setting (e.g., an employer deciding how much recidivism risk is appropriate for a given job description) because those thresholds implicate issues of equity and fairness. Data quality can limit the development of successful recidivism risk models, and policymakers should consider creating data infrastructure that supports models that adhere to the reset principle. Policymakers should understand that exploring and stressing models that adhere to the reset principle for bias will be crucial. Model predictions may reflect the unfair systemic biases in the current criminal justice system. Tools that use models that adhere to the reset principle should be developed judiciously and after carefully considering many systemic factors regarding fairness. An adequate assessment of bias should include a comparison to the current state. Even an imperfect tool could provide more opportunities to candidates against whom the current system is biased than the current methods. This research was sponsored by Arnold Ventures and conducted by the RAND Justice Policy Program. Read more

Federal policies block loans to small business owners with a record

Starting a small business is increasingly recognized as a pathway to opportunity for individuals with an arrest or conviction history—particularly given the disadvantages they face in the labor market. An estimated 4% of small businesses in the United States have an owner with a conviction (1.5% have a felony conviction). Small businesses provide “a vital opportunity for those with a criminal record to contribute to society, to earn an honest profit, and to give back to others.” They also frequently employ people with a record and help reduce recidivism. A growing number of organizations and government programs are devoted to supporting individuals with a record in building their own businesses. Yet many structural barriers remain, including a series of little-known federal regulations and policies that impose broad criminal history restrictions on access to government-sponsored business loans, notably by the U.S. Small Business Administration (SBA).  A recent article illustrates the steep challenges faced by business owners with a record by telling the stories of several entrepreneurs who were either denied an SBA loan or were discouraged from even trying for one because of a dated felony conviction.  One of those entrepreneurs comments: “You might do five years, ten years, one year, but you pay for it until you’re in the grave.” To illuminate and help reduce these barriers, our organization is working to develop a new “Fair Chance Lending” project. We hope to show that—rather than broadly exclude individuals with a criminal history—officials should draw record-based restrictions as narrowly as feasible, facilitate access to resources, and celebrate entrepreneurial efforts, consistent with growing national support for reintegration and fair chances in civil society. The SBA’s record-related lending policies came into focus in the spring of 2020 when the agency imposed remarkably broad criminal history restrictions on hundreds of billions in financial relief for small businesses and nonprofits authorized through the CARES Act in response to COVID-19. The SBA’s pandemic relief programs were massive: in fiscal year 2020, the agency distributed $525 billion through the Paycheck Protection Program (PPP) and $211 billion through the Economic Injury Disaster Loan (EIDL) program. But hundreds of thousands of small businesses and nonprofits were barred by the SBA from accessing these funds through shockingly extensive criminal history restrictions not required or suggested by statute, with disproportionate impacts on Black and Latino/Latinx communities. A recent RAND study found that just one aspect of these restrictions—the disqualification from PPP relief of all businesses with an owner or “associate” with a felony conviction within the previous five years—excluded an estimated 212,655 small businesses with 343,198 employees. When we began to write about SBA’s restrictions on COVID-19 relief shortly after the passage of the CARES Act, our servers crashed because of the level of public interest, requiring us to update our systems. Thousands of business owners emailed us, with a wide variety of disqualifying records and types of businesses, desperate for help, fearful of publicly discussing their predicament lest their backgrounds be exposed. We researched the issues in detail and joined a large bipartisan group of organizations calling on the SBA to revise its restrictions. The SBA, also facing public pressure from impacted individuals, a bipartisan group of lawmakers, and litigation, rolled back most of the restrictions it had imposed, with the Trump Administration loosening restrictions on multiple occasions over the course of 2020 and the Biden Administration making additional changes in early 2021. Despite the massive impact of these restrictions on the first round of emergency relief, the SBA did not initially explain or attempt to justify them. When sued in June 2020, the SBA defended its rule on grounds that criminal history can speak to an applicant’s “higher likelihood of reincarceration” and “potential for misuse of funds.” See Defy Ventures v. U.S. Small Business Administration, 469 F. Supp. 3d 459, 476 (D. Md. 2020). Despite the easing of record-related restrictions on COVID-19 relief, the SBA continues to maintain extensive criminal record barriers in its general business loan and disaster assistance programs which are summarized below. The SBA treats criminal history as a credit risk, despite the absence of any evidence to support that position or statutory authority for it.1 While the agency has awarded a handful of grants in recent years to community-based organizations working with formerly incarcerated entrepreneurs, its general lending programs all but preclude loans to the entrepreneurs themselves. In addition to its various lending programs, the SBA provides training, contracting opportunities, and other forms of assistance to small disadvantaged businesses through the 8(a) Business Development Program, which allows participants to take advantage of set-aside and sole-source contracts to help aspiring entrepreneurs compete for positions as government contractors. The 8(a) Program allows for, and often requires, consideration of applicants’ criminal backgrounds as part of a mandate that applicants have “good character.” In contrast, the SBA’s rural-focused sister agency, the U.S. Department of Agriculture, appears to administer its various lending programs to farmers and ranchers with narrowly-tailored criminal history restrictions tied to specific statutory provisions.2 The SBA’s criminal history restrictions very likely contribute to racial inequalities in the economy. The SBA’s criminal history restrictions on COVID-19 relief led to documented racial disparities. The SBA’s comparable criminal history restrictions in its general loan programs almost certainly have similar effects, particular given the well-documented racial disparities in the instance of criminal records in general. The SBA makes little effort to justify its broad policy-based restrictions, which heightens their contrast with the targeted statutory restrictions that apply to rural-focused lending programs administered by the USDA. The criminal record restrictions in the SBA’s lending programs are described in greater detail below. Criminal record restrictions in the Small Business Administration’s lending programs The SBA 7(a) and 504 programs The SBA’s most common business loan, through the 7(a) program, guarantees a large percentage of a loan provided by a private lender. The SBA’s development company program, the 504 program, provides long-term, fixed rate financing for major fixed assets through Certified Development Companies. Both programs authorize individual loans of up to $5 million. In fiscal year 2020 alone, the SBA provided $22.5 billion in loans through the 7(a) program and $5.8 billion through the 504 program. An SBA regulation makes ineligible for either program “[b]usinesses with an Associate who is incarcerated, on probation, on parole, or has been indicted for a felony or a crime of moral turpitude.” SBA’s policy statement applicable to both programs imposes additional blanket restrictions, also making ineligible businesses with an associate currently under specified forms of diversionary or conditional dispositions, an order of protection, registered with a sex offense registry, or facing any criminal charges in any jurisdiction. This policy statement further provides that various individuals associated with the business must also be “of good character,” as determined by the SBA (this includes any proprietor, general partner, officer, director, managing member of a limited liability company, owner of 20% or more of the equity of the Applicant, Trustor, or any person hired to manage day-to-day operations). Each of these persons must disclose and provide documentation about: (1) any arrests in the past six months; and (2) any criminal offense (excluding minor vehicle violations), any convictions, guilty pleas, no contest pleas, or any placements on pretrial diversion or any form of parole or probation, at any time. All expunged and sealed records must be disclosed. If any person has not satisfied all sentencing conditions (which may include payment of court debt), the applicant is not eligible for a loan. A lender may proceed with a loan (assuming all other requirements are met) if all the documented criminal records are older than six months and involve either: a non-conviction or a misdemeanor conviction not involving a crime against a minor. However, if any person has: a prior felony conviction that was not reduced to a misdemeanor, a prior misdemeanor conviction for a crime against a minor, or, within the previous six months, either a misdemeanor conviction or charges filed, they are required to complete an FBI fingerprint background check and undergo an individualized character determination by the SBA—before a lender may process the loan. It is unknown how often lenders actually proceed with the FBI/SBA process at that point rather than simply deny the application. It is also unknown how often the SBA finds that such a person meets the “good character” requirement in its policy statement. 2. The SBA microloan program The SBA’s microloan program, which provides loans of up to $50,000 through authorized nonprofit community-based intermediaries, imposes narrow criminal history restrictions. The SBA distributed $85 million through this program in fiscal year 2020. Regulations provide that businesses are ineligible only if they have an associate who is incarcerated or under indictment for a felony or crime of moral turpitude, or on probation or parole for certain offenses. The SBA’s policy statement for the microloan program does not impose any additional blanket restrictions or good character requirements, although it vests discretion with the lender to determine whether to lend to an applicant with a criminal record other than the disqualifying records described above. 3. The SBA disaster loan program The SBA’s disaster loan program, which provides long-term, low-interest loans to recover from disasters, also includes criminal history restrictions. First, an applicant is not eligible by statute if an owner was convicted in the previous year of a felony during and in connection with a riot or civil disorder or other declared disaster. Second, the applicable SBA policy statement states that it will not approve a loan if the applicant or principal owner is presently on parole or probation following conviction of a “serious criminal offense” (unless, for partnerships, corporations, and limited liability entities, the offense was unrelated to the business and the individual will divest all interest in the business). Third, the SBA requires that all of the following persons undergo a “character evaluation”: proprietors, limited partners who own 20% or more interest,  general partners, or stockholders or entities owning 20% or more voting stock, if they have any current charges pending, have been arrested in the previous six months, or if they have for any criminal offense excluding minor vehicle violations, any convictions, guilty pleas, no contest pleas, or any placements on pretrial diversion or any form of parole or probation. A detailed explanation about the records must be provided, including unpaid fines and fees. An application can be processed without an FBI fingerprint check only if the disclosed criminal activity “is both minor in nature and was committed more than 10 years ago.” Otherwise, an FBI background check must be completed. Finally, the SBA will make a determination of whether the person is “of good character.” (Note that separate criminal history requirements apply to COVID-19 disaster loans.) *** In the coming months, we plan to continue this work by conducting further research on SBA, USDA, and state policies, convening conversations between stakeholders, and issuing policy recommendations on this important issue. 1 The Small Business Act authorizes the SBA to “verify [a loan] applicant’s criminal background, or lack thereof,” and authorizes the conduct of an FBI investigation of loan applicants. See 15 U.S.C. §636(a)(1)(B).  But neither this provision nor any other law requires that a background check be conducted as a condition of making a loan, much less does it require the agency to treat criminal history as a measure of creditworthiness.  Cf. 13 C.F.R. §120.150(a) (SBA regulation stating that it will consider “character” and “reputation” in determining if an applicant is “creditworthy”). The only statutory criminal history restriction on SBA loan applicants that we can identify is a half-century old exclusion from 7(b) disaster loans of persons convicted in the year prior to application of a felony “during and in connection with a riot or civil disorder.” See Department of Housing and Urban Development (HUD) Act of 1968, P.L. 90-448 § 1106(e). In addition, the SBA, and every other federal agency, is subject to a government-wide provision that can result in disqualification from federal loans and grants for a period of time based on certain drug convictions. See 21 U.S.C. § 862 (denial of federal grants, contracts, loans, and licenses based on court-imposed and mandatory debarments based on convictions for trafficking or possessing controlled substances). 2 Record-related barriers covering USDA lending programs appear to be few and targeted, rooted in statutes, and triggered by specific offenses. See, e.g., 21 U.S.C. § 889 (conviction for planting, cultivation, growing, producing, harvesting, or storing a controlled substance triggers prohibition for that crop year and four succeeding crop years on access various USDA loan, grant, payment and contract programs); 7 C.F.R. § 718.6 (same); 7 U.S.C. § 2209j (permanent or 10-year debarment from USDA programs for fraud in connection with USDA programs); 2 C.F.R. § 417.865 (same). One of the USDA’s business loan programs, for example, the Business & Industry (B&I) Loan Guarantees program, described by the USDA as “similar” to the SBA 7(a) program but targeted to rural businesses, does not appear to contain any additional criminal history restrictions except an optional bank “character” review that is not specifically linked to criminal record. See 7 C.F.R. § 5001.202 (“When applicable, a [lender’s] evaluation [of an applicant] may include the character of persons with management control or a 20 percent or more ownership interest in the borrower.”). In addition, the USDA, like every federal agency, is subject to government-wide provisions that can result in disqualification from federal loans and grants for a period of time based on specific types of criminal convictions. See note 1. Read more

Study reveals potential for racial bias in presidential pardon process

Last week the RAND Corporation published its long-awaited Statistical Analysis of Presidential Pardons, commissioned in 2012 by the Bureau of Justice Statistics to determine whether the Justice Department process for deciding who to recommend for a presidential pardon is tainted with “systematic” racial bias. The RAND study appears to have been a direct response to an investigative report published jointly in December 2011 by ProPublica and the Washington Post, which concluded based on an examination of pardon cases granted and denied during the administration of George W. Bush, that race was “one of the strongest predictors of a pardon.” Specifically, the ProPublica study concluded that “White criminals seeking presidential pardons over the past decade have been nearly four times as likely to succeed as minorities” while “Blacks have had the poorest chance” of receiving a pardon. In a 224-page statistical analysis of how pardon petitions were evaluated by the Office of the Pardon Attorney (OPA) between 2001 and 2012, the RAND researchers “[did] not find statistically significant evidence that there are racial differences in the rates at which black and white petitioners receive [favorable] pardon recommendations.” (Note that sentence commutations were not a part of the RAND study.)  At the same time, there was also “no question that non-Hispanic white petitioners as a group were more likely to receive a pardon than did black petitioners.” The apparent contradiction between these two statements can be explained by the fact that white applicants were statistically more likely to satisfy the formal standards that apply to OPA decisions about which cases to recommend for pardon, suggesting that either the formal standards need revision or the pool of applicants needs to be expanded, or both. To this point, the RAND researchers appeared troubled by the extent to which subjective lifestyle criteria influence the evaluation of pardon petitions under governing policies: “There may well be specific instances, both within our study time frame and without, where conscious or unconscious bias on the part of a member of OPA’s staff influenced the ultimate outcome of a petition, either for or against a grant of pardon.” This would appear to be an understatement. The composite profile of a successful pardon applicant that RAND describes, based on its examination of hundreds of OPA casefiles, is a U.S.-born white man in his mid-50s, who committed a white-collar crime in his late 20s and had no criminal activity before or after the conviction, who pled guilty and was sentenced to probation, and who applied for a pardon more than 20 years after he was sentenced. Steady employment, stable family life, charitable activity, military service, recommendations from public officials, and assistance by legal counsel were also found to be statistically valid predictors of success. The least successful composite petitioner was “a non-Hispanic black female who was not a U.S. citizen by birth and was in her late thirties when the underlying offense (a firearms-related crime) was committed,” who (inter alia) had “indications in her case file of criminal activity both before and after the conviction,” who had experienced financial and employment instability, who “was likely seeking clemency for the purpose of obtaining or restoring a professional license,” and whose character references came predominantly from family members. The RAND researchers conclude the following about what sort of person was most likely to get a favorable recommendation from OPA during the period 2001-2012: [T]he takeaway here is that a petition has the best chance for success when the petitioner has led a fairly ordinary life other than in regard to a single brush with the law, received only modest sanctions when sentenced and served it without incident, never experienced financial or behavioral troubles, had a stable family and employment history, waited decades before seeking executive clemency, and had a criminal justice experience benign enough so that those who prosecuted his case or were responsible for his pretrial evaluation had little concern over a grant of pardon. To be fair, the subjective criteria applied by OPA are all but dictated by the standards for consideration of pardon applications set forth in the Justice Manual, which have not changed for many years. They require an assessment of “post-conviction conduct, character, and reputation,” as well as “seriousness and relative recentness of the offense,” and “acceptance of responsibility, remorse, and atonement.”  “Need for relief” is described in the standards in terms of mandatory restrictions like those in statutes applicable to bonding and licensing. The degree to which “conscious or unconscious bias” might influence application of these standards in particular cases would be particularly hard for an outsider to gauge given the highly opaque and even secretive OPA process, which the report says “mirrors to some degree the inquisitorial system utilized in civil law countries.” But in this case the statistics don’t lie. Other interesting (though not surprising) statistics gleaned from the RAND report are: Fully a third of petitioners were seeking pardon to regain their firearms rights Only 5.6% of petitioners deemed eligible after OPA’s initial winnowing process were ultimately recommended favorably for pardon The U.S. Attorney supported pardon in only 9.5% of the cases in which that official’s views were sought, an investigative step that occurred late in the review process after the applicant had survived all earlier stages, and this official’s recommendation was given “great weight” in OPA’s final recommendation (confirming concerns about the negative influence of federal prosecutors on pardon recommendations) It took an average of more than four years to produce a favorable Justice Department recommendation, and more than half of this time was consumed by requests to OPA from officials in the Deputy Attorney General’s office for more information or a different recommendation (confirming concerns about heavy-handed oversight by political appointees) A favorable pardon decision was more likely during the eight years of the George W. Bush administration than during the first four years of the Obama administration. The RAND researchers attribute “the difference in the findings between our study and ProPublica’s . . . to the fact that both studies utilized relatively small samples of pardons granted.”  They acknowledge that their small sample size may have skewed the results in other ways, noting that the review they had initially planned of 1500 case files had to be reduced to fewer than 300 cases as a result of the announcement of the Obama Clemency Initiative in 2014, which forced an end to its review of pardon casefiles and halted all processing of pardon applications for 18 months. The RAND report acknowledges the overrepresentation of white petitioners in absolute numbers compared to Black and Hispanic pardon seekers, and cites the possible deterrent effect of so much detailed instructional information on the OPA website. While the report opines that the application form itself should be relatively easy to fill out, its authors may have had in mind the profile of the successful pardon applicant, rather than someone with a lot of potentially damaging and dated information to disclose, such as prior and subsequent criminal record, employment history, drug use and treatment, mental health consultations, financial issues, etc. In any event, it recommends encouraging criminal defense attorneys to inform their clients about the possibility of petitioning for a pardon, and assisting petitioners through providing free clemency clinics and expanding programs like Obama’s 2014 clemency initiative to address this racial imbalance. Finally, in what may be the most disturbing finding for the Biden Administration, the RAND report observes that OPA appears to be struggling to manage a growing case backlog despite having had its attorney staff augmented during the Obama years. OPA appears to be having increased difficulty in keeping up with the incoming pardon caseload. As of the beginning of June 2018, over 2,000 pardon petitions were classified as pending, but for most years prior to 2016, the pending caseload was no more than half that amount. Since June 2018, in part because of President Trump’s deliberate neglect of the regular pardon process, the backlog of pending pardon petitions has grown to more than 3,000 cases, some of which have been pending for more than a decade, while the commutation caseload now exceeds 12,000 cases. The RAND report expresses concern that this overwhelming caseload may increase the time it takes to process a pardon application, which it characterizes as already “long and drawn-out.” Indeed, it suggests that an intractable backlog could continue to grow given the hundreds of thousands of individuals who are eligible to apply for pardon, particularly if they are “motivated to apply under the belief that a more receptive ear currently resides in the White House.”  The report does not suggest alternative ways of dealing with the caseload, such as shortcutting the investigative process or increasing administrative case closures, as much as conceding that such efficiency measures would have racially skewed results. But in accepting a backlog of pardon cases as inevitable and likely to grow larger, particularly if the president stirs up interest by granting pardons, the RAND report fails to recognize that the primary problem with the pardon process today is not structural racism or a slow-moving bureaucracy or even antagonistic federal prosecutors (though all three contribute to the dysfunction of that process). The primary problem is that the federal criminal legal system relies too heavily on an extraordinary power of the presidency to perform tasks that are essentially routine. While the states have been busy expanding their courts’ authority to restore rights and opportunities to people with state convictions, Congress has done nothing to provide alternative statutory relief mechanisms to people with federal convictions. This has left the president solely responsible for implementing the important public policy of facilitating reintegration, armed only with a personal constitutional power that is notoriously unfair and that cannot be delegated. It also leaves a great deal of power in the hands of unaccountable staffers. Addressing this untenable situation must be the work of the Biden Administration and Congress in the next few years. Happily, if past is prologue, it is likely to have an unusual degree of bipartisan support. A forthcoming issue of the Federal Sentencing Reporter, which I had the privilege of guest editing, contains essays discussing the impact on the regular pardon process of Donald Trump’s irregular use of the pardon power, proposing ways in which the president’s power can be used more fairly and efficiently, and suggesting how it may be supplemented by statutory remedies. The issue will be described in this space when it is published at the end of this month. The RAND report can be accessed here.       Read more