What is the Right Way Forward on Clemency Reform?

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The Biden administration has announced it is considering clemency for convicted drug offenders among the approximately 4,000 prisoners released early from federal prison due to the pandemic, who are subject to being returned when the national emergency declaration expires. Some argue this does not go far enough, noting the administration has not proposed structural changes to a process they describe as marred by delays and political favoritism in administrations of both parties. Among the key questions are how to balance expectations for finality among prosecutors, victims, and the public with the benefits of second chances earned after an objective review.  Also, this discussion will explore whether the clemency process should be partly or fully moved out of DOJ.


Featuring:

  • Rachel Barkow, Vice Dean and Charles Seligson Professor of Law; Faculty Director, Center on the Administration of Criminal Law, NYU School of Law
  • Paul J. Larkin, Jr., Senior Legal Research Fellow, Meese Center for Legal and Judicial Studies, Institute for Constitutional Government, The Heritage Foundation
  • Moderator: Marc Levin, Chief Policy Counsel at the Council on Criminal Justice; Senior Advisor to Right on Crime, Texas Public Policy Foundation

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript

[Music]

 

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's Practice Groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Guy DeSanctis:  Welcome to The Federalist Society’s webinar call. Today, October 14, we discuss “What is the Right Way Forward on Clemency Reform?” My name is Guy DeSanctis, and I’m Assistant Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today’s call.

 

      Today, we are fortunate to have with us our moderator, Marc Levin, Chief Policy Counsel at the Council on Criminal Justice, Senior Advisor to Right on Crime, Texas Public Policy Foundation. Throughout the panel, if you have any questions, please submit them through the question and answer feature so that our speakers will have access to them for when we get to that portion of the webinar.

 

      With that, thank you for being with us today. Marc, the floor is yours.

     

Marc Levin:  Thank you. Well, all of us at The Federalist Society Criminal Law Practice Group greatly appreciate this opportunity on such a timely topic to bring you the insights of two very distinguished scholars. All three of us have actually worked quite a bit on this over the years, and I think that one of the things that really stands out about this is it’s a constitutional power. And I think across the spectrum, we have a great deal of reverence for the Constitution. It’s certainly true at The Federalist Society.

 

      And also, this has been a challenging topic throughout administrations of both parties, that questions have arisen as to what the process is and whether everybody’s treated equally and how everyone can be fully considered, whether they can afford a great lawyer or not or have connections or not. And I think also in virtually every administration, the only significant clemencies have come towards the end or even at the very end of the term. There’s a few sometimes at Christmas or something as we see with governors as well.

 

      And I think that’s also led people across the spectrum to say maybe we need to take a more holistic and consistent view of this topic and really focus on when people deserve clemency and whether the whole process needs to be restructured in terms of the central role that the Department of Justice plays as compared with state systems where typically it is the governor and perhaps a parole board rather than prosecutors who are at the center of the process.

 

      So I think that now with over 14,000 people backlogged in terms of clemency requests and the administration recently signaling that they are interested in looking at drug offenders, but many advocates have said, “Why not cast a wider net?” So I think this is a perfect time to examine both how the current system is or is not working, and what changes could be made to the structure and process, and whether those need to be made by and administration unilaterally or some perhaps by Congress as well.

 

      I couldn’t think of two better minds to address these complex questions. First, we have Rachel Barkow, who’s the Charles Seligson Professor of Law and Faculty Director of the Zimroth Center on the Administration of Criminal Law at NYU. She was appointed to the U.S. Sentencing Commission and served there until January 2019. And for those of you who follow it, sometimes the body doesn’t always have a quorum, but it is very important on issues like the retroactive applicability of drug sentencing changes. It’s quite a critical role in some of the recent developments on sentencing reform.

 

      She teaches a number of topics including criminal law, administrative law, and constitutional law. She’s written incredible books including Prisoners of Politics: Breaking the Cycle of Mass Incarceration that’s been widely influential in the field. And she’s testified frequently before Congress as well.

 

      Also joining us is another scholar who’s written extensively on this topic, Paul Larkin, who is the John, Barbara, and Victoria Rumpel Senior Legal Research Fellow at the Meese Center for Legal and Judicial Studies at The Heritage Foundation. I think everyone on this call knows that that’s named after former Attorney General Ed Meese. And Paul has really carried that legacy forward in a brilliant way working on issues from justice policy to regulatory policy. He also served as Assistant Solicitor General and argued some 27 cases before the U.S. Supreme Court.

 

      He’s also been counsel to the Senate Judiciary Committee and head of the crime unit for Senator Orrin Hatch who served as chairman of that committee. And some of you may have seen that the Orrin Hatch Foundation is now engaged very constructively on criminal justice reform as well.

 

      Paul received his law degree from Stanford Law School and is a lifelong New York Yankees fan. So as an Astros fan, I am not going to make any out-of-school comments on this call.

 

[Laughter]

 

      I guess I won’t steal your thunder, to be a play on words.

 

      But anyway, let me turn first to Rachel, and then we’ll have each of them make comments of about 10 to 15 minutes. And then we’ll have time for audience questions and comments, so please be thinking about that. Rachel, take it away.

 

Prof. Rachel Barkow:  Great. Thanks so much, Marc. Thank you all for having me here to talk about clemency. I’m going to start where Marc did where he talked about the fact that we have a backlog of clemency petitions. And it seems to have grown since the last time you probably looked, Marc, because now the number is 16,000. There are 16,000 people who are waiting -- I’m not even going to call it in line or queue because we have no idea. It’s in a big jumble somewhere in the Department of Justice. And for many of them, they have been waiting since the Obama administration with clemency petitions.

 

      So I think if there was any other area in our government right now where we were looking at a 16,000 backlog of some service that the government is supposed to provide, we would say something is seriously wrong. It needs to be urgently fixed. How did it happen? Who screwed up? And unfortunately, there’s just no urgency like that when it comes to clemency, but there very much should be because we have an urgent need for the president to exercise this constitutional power. It is actually a critical one. It’s not as some people I think view it, some ad hoc dispensation of mercy.

 

      What I’d like to convince you of today is it’s actually a core constitutional function and a way for the president to exercise oversight of the executive branch. I know there’s a fair number of Federalist Society types who are big adherents to ideas of the unitary executive and at least a strong executive oversight function. And I urge you to look into the clemency power as a great example of that, as something that is really important for the president to oversee. I think this is the strongest case for that kind of vision of presidential oversight.

 

      I’m going to start there with the constitutional structural argument because I think everything else I’ll say after that will follow from it. So I’m going to try to convince you, both constitutionally and policy wise, there’s an urgent need to fix clemency.

 

      First of all, if you pick up you Constitutions—and I have a feeling this audience has them handy—if you did, you would see that the clemency power is right next to the commander in chief power. It’s actually not an afterthought for the framers. This was something that they thought was critically important. And if you go back and you read any of the Federalist Papers or debates on this, you’ll see things said like this is one of the areas that we agree on, and to the extent we disagree, it’s, is this the most fundamental bedrock of government, or a really big bedrock of government? They thought this was a really important power, that this is something that was put in there that’s important.

 

      And although its use has fallen in the past four decades for a variety of political reasons we could talk about if you want to, I think it’s important to note that for most of the country’s history, it was functioning pretty well. And even though in recent times it is this kind of last-minute, bizarre feel at the end of a presidential administration, we had had, for a very long stretch of time, presidents using this consistently throughout their terms and using it in a widespread manner. It wasn’t just kind of erratic here and there.

 

      The feature that I want to emphasize for you is how important it is for the president to use this power to control federal criminal law enforcement. And here, it’s a way for the president to check overreach by federal prosecutors. It’s a way to check decisions that prior administrations have made that the president doesn’t agree with and wants to shift policy on. When we think about things like agency law, you see agencies shift course in the kinds of policies they enact from president to president.

 

      Criminal justice is no different. Policy changes can happen, and the clemency power is a way to exercise policy change as well, and it’s a way for presidents to show they may disagree with the way prior administrations had sought to use the law enforcement power. And we’ve seen presidents throughout history do this. Whether you agree or disagree, you can see Andrew Johnson used it to undermine Reconstruction policies. President Kennedy used it to show his disagreement with prosecuting what he called non-violent first time drug offenders. Whichever side of the spectrum you look at, though, you do see presidents using this power as a way to reflect their own policy priorities.

 

      And in particular, it’s a way for them to check against what they have seen as federal overreach in particular areas. So I think you probably are aware that we can have federal overreach pretty commonly occur just because of the nature of politics and how Congress goes about doing its work. If anything, Congress is going to err on the side of severity when it passes laws.

 

      And individual prosecutors, U.S. attorneys’ offices around the country, they use that authority that Congress gives them to try to extract pleas. Those deals are often quite harsh, and people don’t take the deals, and they go to trial. They exercise their jury right. They find themselves facing exorbitantly long sentences.

 

      And the way you check those sentences once prosecutors have obtained their convictions, sometimes there’s a mandatory minimum. There’s no way for the judge to check it. And we don’t have parole in the federal system. So the only way that you’re going to check those excessively long sentences once they’ve been administered is through the president’s commutation power.

 

      Now, if we were designing a system from scratch and thinking about how you’d want checks on sentencing, we could talk about creating alternative mechanisms, but in the world we live in today, currently, the way you have to check these long sentences is through a presidential commutation. There really is not realistic alternative.

 

      Recently, we’ve seen some people try to use the compassionate release provisions that we have in federal law. Only since the First Step Act have defendants been able to file directly with courts to try to seek reductions in their sentences on compassionate release grounds. Prior to that, you had to get the Federal Bureau of Prisons, the warden, to agree to file the motion for you. And it probably won’t come as a big surprise that their answer was typically, “No, we’re not going to file it.” Even when people were terminally ill and they were textbook cases for compassionate release, there were no filings.

 

      Congress was unhappy with the way that was operating and allowed people to file directly with courts with the First Step Act, and so we are now seeing defendants file directly more often, and in the course of doing that, raising claims not just that they should be released because of medical conditions or extraordinary family circumstances like caring for someone who has no other caregiver available, but also making claims that their sentences are just too long.

 

      It’s had some success in the court of appeals. Not all of them. There’s a circuit split. We’ll see how long it lasts. But at best, that has been sporadic. In some districts, it’s a complete no-go. And we haven’t seen very many cases where that relief has been given. So it remains the case that the primary way you get a check on excessively long sentences in the federal system is a commutation from the President of the United States.

 

      And again, I think if we were thinking about all the things a president has to do, we might not think that’s the ideal way to design a government to have looks on sentencing, but that is the one that we have. And it’s a really important feature because we have so many excessively long sentences and because Congress -- when the rare times that Congress goes and fixes some of the long sentences it has passed—and it’s a tough slog to get Congress to do that for a variety of political reasons—they tend not to make their changes retroactive.

 

      One or two senators get up there and say, “Well, you can’t let out somebody like this.” They find the worst possible textbook example they can of someone who doesn’t deserve relief, and they kill retroactive relief. And so that means even when we change laws, even when we all realize they were too long and they shouldn’t be like that going forward, you still have thousands and thousands of people in federal prisons serving under the old sentences that we’ve all now agreed as a society are too long. And again, the only way those folks can get relief is from the president.

 

      So the commutation power, the ability to reduce a sentence, is hugely important for people who are in federal prison. And the other aspect of the federal clemency power, pardons, is likewise really critical. For people who have a federal criminal conviction, there’s a ton of collateral consequences that follow from that in terms of being denied really critical benefits, the ability to get licenses, the ability to get housing, various kinds of public relief forms like food stamps and welfare benefits. There’s all kinds of things you become ineligible for based on felony convictions. You can’t have firearms, which is important for many people’s occupations.

 

      There’s just a variety of things that you might want to get your conviction expunged so you can have a clean slate. And here too there is no other federal mechanism to get that clean slate other than a federal pardon from the president.

 

      So we have both from the pardons side and the commutations side this really critically urgent need for the president to exercise this authority. It is, as I said, this key constitutional oversight mechanism over federal prosecutors. It’s one of the really important ways for the president to give a national policy assessment. If we have some districts that are just doing things the president disagrees with, this is one way the framers gave the president to fix that, to go in and change some of those sentences, and by doing so, educate prosecutors this is the policy that the president wants to follow. So for all those reasons, it’s really important.

 

      The last thought I’m going to leave you with is why is it so fundamentally broken? And there’s two big reasons. One is political. It is just very risky for presidents to grant particularly commutations. I think they view it as not a huge upside and a potentially large downside if they reduce somebody’s sentence and that person goes on to commit some high-profile, awful crime. I think that really important fear, as we have all come to call it, is still there.

 

      And the second reason is a more bureaucratic and institutional one, which is the current process right now is run out of the Department of Justice. The same agency that the president is supposed to be overseeing with the clemency power is the one doing all of the gatekeeping and looking at the petitions. So you have the same prosecutors who brought the cases in the first place going through all of the petitions to decide should these be granted.

 

      And perhaps unsurprisingly, when those prosecutors’ offices are asked, “Hey, do you think you did a bad job and we should rethink this?”, the answer is, “No, leave everything the same.” It’s really hard cognitively for anyone to take an objective second look at that they’ve done. They pretty reflexively say no, and you don’t get a lot of positive recommendations for grants.

 

      And so you end up with a situation where presidents, when they want to use their clemency power -- and they all do at the end, by the way, the come to the end of their term and they realize this is one of the ways history judges them, their character. What did they do with this amazing power that the Constitution vested in them? Will they be known as miserly when it comes to dispensing mercy and thinking about justice? I don’t think any of them want to be known that way, so they actually want to grant these when they get to the end. And they find they can’t because the Department of Justice has nothing for them. They’ve said no.

 

      And so you get this scramble that we have now seen at the end. President Bush had it at the end of his term, and in fact, told President Obama at the -- I believe it was at the inauguration itself, “I have a piece of advice for you. Have a clemency policy and stick to it because it’s something that you want to do right off the bat.” Unfortunately, President Obama didn’t really seem to heed that advice, again waited to the second term, created a really horrible kind of ad hoc clemency program that I think fell very short of its goals. And he left office with an 11,000 petition backlog because the Department of Justice couldn’t process it.

 

      President Trump had his own clemency tale filled with giving cronies and people he knew clemency and few others. So it suffered from a different set of problems, but certainly awful ones.

 

      And now that brings us to today. So now we have 16,000 petitions in the queue. President Biden has given no indication that he views this as urgent or that he’s set to take care of it. And in addition to those 16,000 people, you have about another 4,000 who’ve been released under the CARES Act to home confinement because of COVID and conditions in the prisons. And he has no apparent plan to deal with those folks either.

 

      So many of them worry they’re going to get sent back, even though they’ve been leading law abiding lives while out, even though Attorney General Barr found them to be safe to be let out in the first place. They would be really excellent instances of people who should just get a categorical clemency grant. But we’ve seen no sign that President Biden wants to do that.

 

      So I’ll just leave you with the thought that this is a really important power. It should be exercised consistently and taken out of the Department of Justice. But I’m actually pretty pessimistic this administration is going to do anything significant.

 

Marc Levin:  Thanks, Rachel, for those very insightful comments. Let’s turn now to Paul.

 

Paul Larkin:  Let me thank you, Marc, and The Federalist Society for inviting me to participate in this. This is an area of great professional and personal interest to me, and I’m glad to offer  the listeners the benefit of my thinking on this matter.

 

      Rachel talked about this issue principally from the perspective of the president and the recipients. The way to draw an analogy is to say she talked about it from the perspective of Henry Ford and the people that wind up deciding to obtain a Model T. I’m going to talk about the assembly line process in the middle, at least that’s going to be my focus. And that’s because, as Rachel mentioned at the end, the problem is not with the idea of how to make a car, or the problem is not with the people who get the car. The problem is everything in between is in the hands of the wrong people.

 

      The essential problem we have with clemency today I think stems from its placement in the Department of Justice. I agree with Rachel about that. She is spot on. The problem is very simple. The department suffers from an actual or apparent conflict of interest because the department prosecuted everyone who applies to the president for clemency. The president can only grant clemency for federal offenses, so no state offender can even apply, although some do, and certainly none can be granted. And so since the Justice Department has a monopoly over the prosecutorial decision, they therefore have a stranglehold over the clemency process as well.

 

      That’s a mistake. It’s a mistake both for process reasons because you do want to have clemency serve as an independent check on the actions of the criminal justice system, which is precisely what the framers anticipated and hoped would happen. And it’s also because of personal flaws in individuals. No one person is likely to say that he or she made a clear mistake in charging someone with a crime or arguing in favor of a particular sentence. People are unlikely to be inclined to reconsider their decisions.

 

      Consider just the U.S. attorneys involved. U.S. attorneys are largely wannabes. The want to be a judge. They want to be a senior official at DOJ. They want to run for state attorney general or governor. And they’re not likely, as a result, to say, “Gee, during my time in office, we made mistakes and prosecuted people who should never have been charged, convicted people who really weren’t guilty, and got sentences far in excess of what the criminal justice system would justify.”

 

      Now, there are three remedies for that sort of problem. The remedy I propose is to create a separate additional clemency system in the Executive Office of the President, a parallel, if you will, to the White House Counsel’s Office. This would be the White House Clemency Office. The president should create it, and then once he does, he should appoint the vice president to be his or her principal clemency advisor. Together, then, the two of them can decide which people are best able to review clemency applications in light of the way the president thinks about clemency and make recommendations to the president for him to exercise or not his Article II Pardon Clause power.

 

      Now, why would you want to make the vice president the head of the president’s clemency advisors? Well, the vice president plays no role in the criminal justice system, so the vice president does not suffer from any personal conflict of interest in this regard, unlike everybody at DOJ.

 

      Secondly, the vice president has better access to the president than anyone else, including the attorney general, and therefore presumably knows better than anyone else what the president’s views are towards clemency and who should receive it

 

       Thirdly, since the president chooses his or her vice president, presumably the VP is going to be loyal to the president and carry out his or her wishes, just as a law clerk would carry out a judge’s wishes in drafting an opinion or an order.

 

      Fourth, presumably, the president trusts the VP’s judgement because, after all, were something to happen to the president, the vice president would then become the president.

 

      Fifth, if the vice president served as a governor, then he or she has experience in making clemency judgements and all of the manifold aspects of that decision.

     

      Sixth, no legislation is necessary to accomplish this revision. The president can do it entirely by himself.

 

      Now, why instead go through this route rather than try to fix the Justice Department? As I said, the Justice Department will always remain the principal prosecutorial authority in the federal system. You can’t change that. And as a result, you are always going to have the people in the Justice Department unwilling to second-guess their own decisions.

 

      The Justice Department should remain involved in the process. After all, every president would or should want to know what the Justice Department thinks about a clemency application. But the Justice Department should not have a monopoly or stranglehold over the process, as it does now. Every application should go to the White House Clemency Office and to the Justice Department. The Justice Department can use the FBI to investigate claims; so too can the White House.

 

      After all, one of the issues is whether someone has undergone metanoia, complete change of life. And that won’t show up in a presentence report. That won’t show up necessarily in reports from the warden. The FBI may have to investigate that. They certainly would for DOJ, and they certainly can for the White House Clemency Office. So DOJ should remain involved, just not have a monopoly.

 

      Well, then, why not create an independent agency to do this? After all, we created a Sentencing Commission and put it in Article III, and we have other independent agencies. Why shouldn’t we do that? The problem is that truly independent agency is an invitation for trouble. It could readily become a tool for favoritism or identity politics, particularly if, as is often the case, Congress demands the right to appoint its own members to that commission.

 

      We’ve had problems in the clemency process for quite some time now, perhaps 40 years. Adding politics into it even more than it’s already present is only going to worsen the situation. Besides, there are constitutional objections that could be raised to any effort by Congress to infringe on who the president may ask in these matters, and it’s needless litigation over that entire issue. So a truly independent agency is a needless problem disguised as a solution.

 

      Now, can Congress legislate on this subject? Well, the answers are yes and no. On the one hand, the Article I Necessary and Proper Clause gives Congress the authority to assist the president exercise his Article II responsibilities, including his clemency power. So Congress could fund a White House Clemency Office. Congress could also exempt that office from the application of various federal laws such as the Federal Advisory Committee Act to make sure that every recommendation the president gets can remain in confidence.

 

      And Congress can also grant the White House clear access to presentence reports that are always used by DOJ in the criminal justice system, and it would perhaps be available to the White House because the president is the attorney general’s boss. But giving the White House Clemency Office authority to receive presentence reports would eliminate any issue.

 

      Now, I said that was the yes. There’s also a no. Congress cannot set rules governing when, how much, how often, and whom the president must grant clemency to. Congress cannot tell the president when he may, should, or must grant clemency. Supreme Court has been quite clear about that, and that is clearly in the hands of the president under Article II. As Rachel said, it is adjacent to the commander in chief clause.

 

      And while Congress has the authority to declare wars, Congress cannot direct the president to adopt battle plans that he doesn’t want to adopt. He gets to be commander in chief. He gets to be the nation’s principal clemency authority—that is, he or she—and he or she can do this without interference from Congress. Congress can help the president carry out his responsibility, but it can’t tell him exactly how to do it.

 

      Now, with respect to the problem of the massive number of cases that are backlogged, principally people asking for clemency in the form of a commutation, in my opinion, the best way to handle that aspect of the problem, which is a separate one, is for the president to adopt categories that he will exercise his commutation power to address. For example, the president should say no one should be executed, or no one should serve life without parole, or no one for a certain category of crime should spend more than 10 years or 5 years or whatever in prison. And for some cases, no one should go to prison at all.

 

      The classic example, I think, are people who are convicted of strict liability federal crimes. They are, in effect, morally innocent of what they were convicted, and I would recommend that they be pardoned for that reason. Innocence, after all, has factual legal and moral components. Factual -- if you were in Chicago when the bank was robbed in L.A., you didn’t rob the bank. Put all the permutations aside that lawyers can get into. You’re not physically responsible.

 

      Legally, if the statute under which you were convicted is unconstitutional, say, unconstitutionally vague, you haven’t been properly convicted of a crime because there was no statute. And morally, if you haven’t essentially acted with an evil intent, which is what common law required for all crimes, you have not been convicted morally. You were not morally guilty. The president can and should pardon everyone in that category, and at a minimum, he should commute any sentence of imprisonment.

 

      So the best way to deal with that problem, the problem of the massive number of cases is not to do what President Obama did, which is try to resentence every individual offender. The president should make categorical judgements, issue general amnesty commutation or pardon orders to implement those categorical judgements, and then have the BOP just run the numbers to see when people get out of prison. That, I think, is the best way of dealing with both the long-term and the short-term problems that we have in the assembly line between the Henry Ford end of the spectrum and the consumer end of the spectrum that Rachel laid out so well. Thank you, Marc.

 

Marc Levin:  Yes, thank you, Paul. And I wanted to then -- and I think those were very on point comments. And I wanted to first of all get Rachel’s response in terms of the structure because I know she’s written in favor of the idea of creating a commission, and particularly, obviously, addressing how that might fit in relative to separation of powers. Of course, there was the Supreme Court decision in the Consumer Financial Protection Bureau, not saying that you couldn’t have it but that the structure of the board was a problem.

 

      And the other thing that was interesting I think that you mentioned was with regard to the Obama commutations that raised the issue of when, of course, as in the case of the drug law there, there had been subsequent changes that the people that were focused on would have received a lesser sentence, a shorter sentence, had under the current drug laws. And does that, in fact, raise the kind of moral claim that you referenced? But let me just -- Rachel, join us if you wanted to address any of those.

 

Prof. Rachel Barkow:  Yeah. Thanks so much for that opportunity. I think Paul and I agree on like 95 percent of things. So to the extent we disagree, it’s in -- so I agree that clemency should be put in the White House, under the direct control of the White House.

 

      I would not put the vice president in charge. And the reason for that is I just think one -- remember, I said there were two reasons that I think this has failed as a process. One is all the bureaucracy and the fact that DOJ is in charge, but the other is politics. There’s that political risk of giving the grants, and I think having the vice president in charge exacerbates -- doesn’t help that because you typically have a vice president who themselves might be interested in becoming president, and I think that will color how they run this process and make it political in a way that I don’t think is helpful for making this effectively work.

 

      So I think a better model is to create a board. Not an independent board, not like the Sentencing Commission, not with nominations that are confirmed by the Senate, no congressional involvement whatsoever because I don’t think that’s constitutional.

 

      But I think it’s a good idea for a president to create a board of advisors who help the president decide what to do with clemency, and to be politically astute about it, and make sure that that board has people from different political parties with relevant backgrounds that would be helpful for these decisions, people who understand reentry, people who’ve been incarcerated so they can really understand what it’s like for people who are inside and really read their records with some intelligence and understanding about it, people who understand risk factors, all those kinds of people, including having the Department of Justice weigh in on these petitions. So it’s not that they’d be shut out. They’d just be one voice instead of the voice.

 

      But that advisory board, I think the president could create one that helps insulate the president from any criticism. Should a clemency grant be made and somebody go on to commit another crime, the president can say, “Look, it went through this process by this board, and look who’s on this board. These people have relevant expertise. They come from different political viewpoints. And I relied on them, and that was a wise thing to do.”

 

      And I’m not just plucking that model out thin air. That is what we see in the states that have the better functioning clemency processes. No one gives it to the prosecutor. That is a historical accident that it’s in the Department of Justice at the federal level. So I think that’s where Marc and I completely agree. It’s ridiculous to keep it there.

 

      And we agree it should be in the White House. I just would prefer a model of advisors as opposed to the vice president. And I think one of the ways to think about -- and the advisors are all up to the president to pick, to hire, to fire, to do whatever the president wants. This is the president’s constitutional authority, so I don’t think it can be fettered. I really believe strongly in that. But that’s why I would prefer that.

      In terms of who should get grants, though, here again I just think we have broad agreement. I totally agree with Paul that this should be categories. The idea that you’re going to do this individually and relitigate cases is both crazy with the 16,000 petition backlog, but crazy even going forward because we don’t have these other mechanisms for second looks and relief. So if it’s going to be up to the president, you’ve got to think of efficient, intelligent ways that you’re going to address things. And the way you do that is with broad categories and presumptions.

      So maybe you say, look, you’re presumptively going to get released if you’re over this age, or you’re presumptively going to get released if you committed a drug offense and your sentence has been changed. And the only way the presumption gets overcome if there is a giant red flag in your prison history. You’ve taken a shiv to another person who’s incarcerated or a corrections officer or something. But assuming you don’t have any red flags in your record, the idea is you’re presumptively released. And I think that is the right approach in terms of who should get released as well.

      So I’d say our Venn diagram of overlapping agreement is pretty big, but it’s probably just that institutional model where there’s some disagreement.

Paul Larkin:  Marc, if I could, I want to see if I can edge up from 95 maybe to 96 or 97 percent the overlap. And that’s because I want to mention two points in response to what Rachel said that I agree with completely.

      Right now, federal law is such that new sentences, if they apply to people for a particular crime, apply only prospectively. That’s a mistake. We should have a general federal statute that applies all changes retroactively. Now, you can’t worsen a sentence because of the ex post fact clause which serves an enormously valuable purpose.

      But if the new thinking is that a sentence should be 5 years rather than 10, it makes utterly no sense to think that somebody who was sentenced a year ago or 30 days ago or yesterday doesn’t get the benefit of that new law. We need Congress to pass a general statute making all changes fully retroactive except where doing so would violate the Constitution so as to make sure we’re not worsening the sentence for somebody.

      And secondly, I agree we need all sorts of people involved in making these decisions. And I hesitate to say this because it might basically hurt his chances in this, but Georgetown Law Center Professor Shon Hopwood should be on any clemency commission, I have no doubt about that, for a host of reasons. Not simply because he knows what it’s like on both sides, but because he is a very smart, very savvy, very hard working and great person and knows what it means to see people change. Somebody like him, he should be perhaps the chair of the commission if you don’t want the VP. I think somebody like that would be fabulous.

      Now, I hesitate in saying it because now, by virtue of the fact that I’ve said it, maybe that somehow scotches his chances. But I’ll take that chance because I think he would be fabulous on any such commission. And I agree with Rachel. We need people with a variety of backgrounds. We don’t need just PhDs who’ve spent their lives in libraries running numbers.

      We need real people, people who know what the average person is like because what you’re deciding in clemency, certainly in a lot of the cases, is this the same person today that committed that crime? And if it’s not, then this person should be eligible in that regard. There are other factors to consider, granted. But if you are no longer the person that committed the crime, that, to me, is a factor militating in favor of it.

      So I say that simply because I wanted to edge up a little higher than 95 percent agreement Rachel and I have.

Prof. Rachel Barkow:  I 100 percent agree, Shon Hopwood to be in charge of all of this, absolutely.

Marc Levin:  Yeah. Certainly, Paul, I know your intent wasn’t the idea that the vice president alone could go through tens of thousands of files, and there’s got to be a board, whether it’s within his office or otherwise.

Paul Larkin:  No, no. Shon should be the vice president’s chief of staff for clemency. He would be perfect.

Marc Levin:  Well, one other thing, and then maybe we’ll turn it over to the panel. Could you address for folks who may be wondering the role of victims and in some cases, obviously, maybe surviving family members?

      I know in state processes, their voice is certainly invited to come talk or send a letter to the parole board, which we have here in Texas, for example, because, obviously, I think rightfully so, we’ve talked a lot about people who have received an injustice of an excessive sentence or people who may not have even been guilty to begin with. But obviously, there’s also the very important equities on the other side of the ledger. And of course, sometimes victims want the person to receive clemency, so we should also be clear about that. But I was wondering if you all could address the role of victims.

Prof Rachel Barkow:  Do you want me to start, Paul, or do you want to go ahead?

Paul Larkin:  Yeah, go ahead, Rachel. Knock yourself out.

Prof Rachel Barkow:  I guess I’ll start by saying I think it is important to look at what the federal prison population looks like in terms of cases. And so you actually do have a really large chunk of the federal caseload will not have an identifiable victim. Half the people who are incarcerated in federal prisons are there for drug offenses, so selling drugs to people who want to buy drugs. I don’t know who you would identify. There might be concerns with what that does to communities, but not in the same way that you might think of with violent offenses that have targeted victims. So for a lot of these cases, we really wouldn’t even be talking about a relevant actor to participate just because of the nature of federal offenses.

      But for cases that do have that, I certainly think it is important to have those voices heard. I think the board model that I have in mind should have people who have themselves experienced crime and have survived crime. I think when people think of the typical victim, though, they’re the media portrayal of who is a victim. But when you are thinking about victimization, we often forget that it’s very commonly the case that people who have committed crimes are themselves victims.

      And so I do think it’s important to have people who understand trauma and victimization on this board and to recognize it not only in the people who may be the victims of particular crimes of the people applying but also to look at their own past history of abuse and to factor that in in terms of how you think about it. So 100 percent, that should be part of how we view these. I just think in practice when you look at federal cases, what you’ll find is it’s not going to be the same as what you see at the state level.

Paul Larkin:  Marc, I agree with Rachel. For most of our history, we’ve had an unfortunate policy of deeming victims to be no more relevant than Victorian era children, someone who should be seen but not heard.

      Well, since the 1980s, we’ve changed that. Victims are an important part of the process because they are the people who are actually hurt by all of this. So what they say is relevant, not simply because it’s relevant to determining the harm that a particular person committed on an individual, but also the effect of granting clemency on the criminal justice system and on society as a whole.

      There are instances where even a violent crime can be excused. If you want a Biblical reference, take a look at the instance of Saint Paul. We know from Acts he participated in the death of [Stephen]. We know, however, he underwent a classic case of metanoia and became a completely different person. Even in the case of violent crime, yes, that is possible.

      But it’s not always possible. And sometimes, granting clemency to someone who has victimized others, even if that victim is willing him or herself to forgive, would harm the society or criminal justice system because of the vast damage that was inflicted by the crime. So yes, victims are relevant, and what they have to say is important, but it shouldn’t be dispositive.

Marc Levin:  Well, with that, let us see if there are some questions and comments from our audience. If we don’t have that, perhaps we can -- maybe each of you could address what the prospects are for these changes. I know, Paul, you indicated that moving this to the vice president’s office, and perhaps it’s also true with creating an advisory board for the president, whether it’s within that office or otherwise, that it seems these could be done without legislation.

      Oh, we do have a question also to add to that from Cory here who is a good friend of mine here in Texas. Can folks see his question? Looks like we have that here. Cory has asked, “Do presidents typically rely on DOJ for first review of petitions? Can someone right now write directly to the White House as well as DOJ? I know President Trump was well known for going around DOJ.”

      And actually, that does raise the other question which we didn’t address that I noted at the outset, which was whether somebody can afford a clemency attorney or whether they have connections with those in power. So would either of you all like to talk about that?

Paul Larkin:  Yes, I’m glad to. We have seen people over time, particularly over the last two decades, do an end run around DOJ, perhaps because they thought DOJ wasn’t going to be helpful. It has always happened, and it always will happen. It’s just an unfortunate fact that there’s some people who have more access to the White House than others. You can’t change that. So you have to deal with that as a fact.

      Now, there was actually a very good case where that worked in favor of seeing a grant, Jack Johnson. Donald Trump pardoned Jack Johnson. Jack Johnson has been dead for decades, and DOJ wound never have even considered him because it has its hands full with people who are alive. And yet, he shouldn’t have been prosecuted. The nice thing about a pardon is the president on behalf of the nation can say either you should never have been charged and convicted, or you should be completely forgiven for what you’ve done. And that was a good case.

      Now, most of the other cases where Donald Trump granted pardons were for cronies, and one good one doesn’t make up for all the bad ones, trust me. So you can’t avoid it, and it’s going to happen, so you just have to accept that, and you shouldn’t let the perfect be the enemy of the good.

Rachel Barkow:  Yeah, I agree with that. I would say that I do think that the current administration, precisely because of what we saw during the Trump administration, is probably bending too far in the other direction. Having seen the fact that no one went through DOJ before and it was a crony, favoritism kind of -- I don’t want to use profanity on the call. [Laughter] It was pretty messed up, I would say, how that process worked.

      I think the current administration has gone too far, though, in the other direction. I think it’s one of the reasons why they’re resisting taking clemency out of DOJ. They’re super deferential now to DOJ. But I think it’s really important to remember this is the president’s prerogative. And if you leave it up to the same people who prosecuted the case, you’re right back to the point that Paul made about actual and perceived conflicts of interest.

      So keeping it in DOJ with the DOJ process is flawed. The first thing DOJ does is go to the prosecutor’s office who brought the case and ask, “What do you think?” So that tells you everything you need to know about that process. I do think people could try other ways. They will. There’s no way around it. Paul’s 100 percent right about that.

      I think this administration, though, is probably going to be even more careful than most in avoiding the appearance of that, precisely because of what we saw before, and I think to a fault because I think it’s one of the reasonsrincipally they’ve been reluctant to correct. We’ve had problems with clemency that long predate Donald Trump. And the administration seems only to look at the things that they saw that were wrong during the Trump administration. But what they really need to do is go back and see there were problems during the Obama administration too. There were problems before that. And those longstanding problems need to be fixed, which means taking it out of DOJ.

      I just think they’re resisting that precisely because they don’t want to look like they’re doing what Trump did, just in a different way, and taking it out and making the White House in control, which is a real tragedy. It really is a horrible way to overcorrect from a flaw that you can easily fix not playing favorites and fix the structural flaws at the same time.

Marc Levin:  Yeah. And let me ask on this point because, yes, someone can make a -- you’d send a letter to the president right now, but there is a real bandwidth issue. I was invited once to a meeting at the White House, and literally, the White House said, “There’s no money to have lunch, to bring in lunch for people.” The people would -- something that’s obviously a fairly trivial expense, but the administration -- if nothing else, maybe there is a need for some appropriations to be made if, in fact, we’re going to have the bandwidth, the expertise, the eyeballs, the time, and probably there may be some software or electronics or computer facilities that are needed for this.

      So I do wonder if either of you think, even though there’s not a need for a statutory change, there might need to be some resources to address this within the White House.

Paul Larkin:  Agreed. That’s why one of the things Congress can do to help the president is to fund an initiative, even if all it did was grant additional funding so that there could be more people in the White House looking at these matters. Not over lunch, but just have additional bodies who are employed by the federal government to look at these matters at the White House. That would be helpful. I think having it more formalized will be even more helpful still. But right now, you’re right, there’s a bandwidth problem.

Rachel Barkow:  Yeah. And I’ll, because I see there’s also some questions in the Q&A about this as well, kind of how many cases get processed, the Pardon Attorney’s Office traditionally, I think, and you can correct me if I’m wrong if you have other data, Paul, but I think there’s about eight lawyers in the Pardon Attorney’s Office. It’s a very small shop to process all of those applications.

      And you can look to see how many they process each year because you can go look on DOJ’s website. They have the data for every president, number of petitions filed, commutations, and pardons. And then you can see which ones were granted, which ones denied, and which ones are pending. That’s where you can get the 16,000 pending today number. So you can see on average how many they’re doing, and nowhere near the ability to process the kinds of volume that they’re receiving. So getting more money would absolutely be helpful in that regard.

Marc Levin:  Yeah. And of course, we’re not talking about a huge bureaucracy or a lot of money in the scheme of things, but as I said, literally the budgets are so tight and you have so many limitations on what funds can be spent on, which may be good, that they just don’t have money to -- discretion to say, “Okay, we’re going to buy lunch for 20 people coming to the White House for a meeting.” So something like this is a lot to take on if you don’t have the people available with the time to do that. All of us who know people that have worked in the White House know that their plates are pretty full already.

      Well, are there any closing comments either of you would like to make before we wrap up?

Paul Larkin:  Let me go first.

Marc Levin:  Sure.

Paul Larkin:  This is an enormously valuable power the president has. It’s the power to correct criminal justice errors, to set criminal justice priorities, and to forgive. In fact, it’s the closest power we have in the legal system to forgive since they days of the English kings. It’s a shame it has become such a political institution. And part of the reason it’s become political, to respond to a question, why has it changed in the last 40 years, the criminal justice system has got more political in the last 40 years. Sentences were not as long as they were 40 years ago as they are today.

      The result is we need to reconsider this. And besides doing the sort of reforms that we have both talked about, the single best thing the president can do is put this on his schedule three or four times a year. Three or four times a year, he should have people out at the White House or Camp David and go though all the clemency petitions and act on them on a regular basis, even if it’s just denials.

      The more regularly the president exercises this power, the less volcanic any particular grant or denial will be. There are a lot of people that deserve some form of relief, and if you do it infrequently, when somebody gets relief, everybody is going to say, oh, he or she had an in at the White House, rather than that he or she deserved it. If the president does this as a regular feature of his office, then that will be diminished considerably.

Rachel Barkow:  I’ll just echo the -- when we think about how things have changed in the last four decades, it’s really been the decline of clemency at the federal level. It’s particularly perverse because the need has gone up in the last 4 decades. That was the same time we got rid of parole, so you lost the other key way to take a second look at the length of a sentence. And that’s when the worst collateral consequences for convictions were enacted as well, so you had a greater need for pardons.

      So it’s all part of the same political approach to using criminal law as a way to get elected and to characterize things in their most extreme worst light. But the cases are more complicated. People change. We learn more about facts. And clemency should be an intelligent process that reflects all of that.

      And I guess I would close by saying I think there’s a particular need for this president to fix the process because he is actually someone who was the architect of many of these really terrible policies in the 80s and 90s when he was in the Senate. And when he ran for president, he acknowledged that and had said, “And I believe people can change. I believe people who run for office can change.” And he had said, “I see mistakes I have made,” and had made a commitment to show that in his presidency.

      This is the number one way he could do that because he does not need Congress as a partner. This is the power that he alone possesses, and it’s in many ways to right some wrongs that he himself is responsible for. So I won’t say that I’m optimistic it should happen, but I think it’s particularly important for him, of all people, to see the need to do this.

Marc Levin:  Well, this has been really illuminating. And I want to thank you, Rachel, and Paul, and The Federalist Society for allowing us to come together to talk about this. And I hope all of you tune in to subsequent teleforums. Thanks so much and have a great day.

Paul Larkin:  Thank you, Marc. Thank you, Rachel.

Rachel Barkow:  Thanks, everybody.

Guy DeSanctis:  On behalf of The Federalist Society, I want to thank our experts for the benefit of their valuable time and expertise today. And I want to thank our audience for joining and participating. We also welcome listener feedback by email at info@fedsoc.org. As always, keep an eye on our website and your emails for announcements about upcoming teleforum calls and virtual events. Thank you all for joining us today. We are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s Practice Groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.