Another reminder that Prez Biden has so far decided to forget using his clemency powers

December 9, 2021

The headline of this new Insider article, “Despite promises, Biden has yet to issue a single pardon, leaving reformers depressed and thousands incarcerated,” captures the themes of the full piece effectively. Regular readers will not find anything too new in this article, but it still serves as a useful review of where federal clemency matters stand as we approach the close of 2021. I recommend this lengthy piece in full, and here are a few excerpts:

Nkechi Taifa, an attorney, activist, and leader of the progressive Justice Roundtable, … [had an] early December meeting with Susan Rice, director of the Domestic Policy Council, and staff from the Office of the White House Counsel, [where] she implored the administration to act now [on clemency].

More than 7,700 federal inmates are currently on home confinement, granted release from prison on the grounds that they pose no security threat and are at a heightened risk of suffering severe complications from COVID-19. When the public health emergency is declared over, they could be forced to return. Leading Democrats, including Senate Whip Dick Durbin of Illinois, have argued it would be an injustice to send them back, urging the White House to consider granting clemency en masse.

In the meeting, White House staff appeared to agree, Taifa said. That’s not the problem. “Their rhetoric says that they understand what we’re saying, and that they’re working on it,” she said. The issue is the conversation is taking place in December. “If it’s going to take this long for a first step, how long is it going to take for the rest?”…

“What we’ve got is this bureaucratic morass,” Mark Osler, a former federal prosecutor, said in an interview. “There’s seven levels of review, one after the other, and the first four levels are all in the Department of Justice, which of course is conflicted because they’re the ones who sought the sentence in the first place.”

The first step is the Office of the Pardon Attorney, which is currently led, on an acting basis, by Rosalind Sargent-Burns, a career department lawyer former Attorney General William Barr appointed. They then present their recommendations on who should get clemency to the deputy attorney general’s office, where another staffer reviews it and passes it on — maybe — to their boss. Then it goes to the staff for the White House counsel, then the actual counsel, then an aide to the president and then, if all goes well, to Biden himself.

The president could, at any time, bypass this process. Trump did when he pardoned Arpaio and his other allies, such as Roger Stone and Steve Bannon. If anything, Osler, now a professor at the University of Saint Thomas, told Insider he thinks Biden is too committed to the way things were. It’s one thing to respect the Justice Department’s career bureaucracy when it comes to deciding who deserves prosecution but, he said, “it doesn’t make sense in terms of clemency.”

A White House official told Insider the president is “exploring the use of his clemency power” for non-violent drug offenders who were moved to home confinement at the start of the pandemic, a transfer authorized by the March 2020 CARES Act — specifically, those with fewer than four years left on their sentences (one activist who has engaged the White House expects those with less than two years remaining will also be excluded). “At the same time,” the official said, Biden “continues to consider requests for pardon and commutation that are submitted in the ordinary course.”…

The Department of Justice declined to comment on how many petitions for clemency have received favorable recommendations within the department or have been referred to the White House. It is impossible to say for sure, then, how much the delay in granting pardons is due to bureaucracy or stalling by political actors.

But sticking with the opaque status quo is itself a political decision — the president could unilaterally discard it — and it’s a disappointment, if not a surprise, to people like Osler. He’s not expecting big things. “I haven’t heard anything from the administration that gives me hope,” he said.

Some of many prior related posts: