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The federal clemency process is in dire need of reform, Democratic lawmakers urged at a congressional hearing on Thursday. Streamlining the way applications for pardons and commutations are considered, they said, could help address mass incarceration caused by punitive policies like the war on drugs and allow more Americans access to jobs, housing and education.
Rep. Jerrold Nadler (D-NY), chairman of the House Judiciary Committee, said fixing the clemency process would help right the wrongs of harsh sentences and racially disproportionate policing.
“Over the past several decades, Republicans and Democrats have failed to employ this power, which rests solely in the president,” he said. “After decades of draconian mandatory sentencing policies, far too many nonviolent federal offenders—disproportionately people of color—remain in prison serving what we know now are unnecessarily harsher sentences.”
The hearing comes as a growing number of Democrats call on the Biden administration to speed clemency relief to people with nonviolent drug convictions on their records. In April, Biden commuted the sentences of 75 individuals who were previously released to home confinement during the pandemic, a move advocates say is a step forward but far from the mass pardons they’ve been pushing for.
“We must do something to reform the clemency and pardon process,” Rep. Sheila Jackson Lee (D-TX), who chairs the Judiciary Subcommittee on Crime, Terrorism and Homeland Security, which held Thursday’s hearing, said. “We need to begin to reform this process immediately, for there are too many mothers and fathers and people who are seeking to do better in this nation.”
Nadler said he hoped the panel’s discussion would lead to proposals “that will help enable President Biden and his successors to apply the power of executive clemency as the framers intended, as a tool necessary to the fair administration of justice.”
Clemency is the only remaining relief for many of these people. Yet thousands of clemency petitions are currently pending due to the more than 15,000 petitions left by the previous administration for President Biden to consider.
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— House Judiciary Dems (@HouseJudiciary) May 19, 2022
Reform advocates have long criticized the current administrative clemency system, a lengthy and complicated process that involves applicants submitting petitions to the Office of the Pardon Attorney, a body housed within the U.S. Department of Justice. Some say having law enforcement serve such a central role in clemency cases is a contradiction.
Nadler, for one, called the DOJ’s role in reviewing clemency petitions an “inherent conflict of interest.”
Late last year, a coalition of congressional lawmakers introduced the Fair and Independent Experts in Clemency (FIX Clemency) Act, a bill that would take clemency review away from the Justice Department and instead establish an independent board appointed by the president.
Rep. Ayanna Pressley (D-MA), who sponsored the FIX Clemency Act, noted at Thursday’s hearing that the U.S. has the highest incarceration rate in the world, with more than 200,000 people in federal custody, “disproportionately Black, Latino, Indigenous, disabled, and LGBTQ+.”
She noted that there are more than 17,000 clemency applications pending before DOJ.
While a president can unilaterally grant clemency without the Justice Department’s go-ahead—a right President Donald Trump frequently exercised—supporters of reform say it’s necessary that an independent body be created to ensure that all deserving cases are identified. That includes people impacted by the drug war.
.@HouseJudiciary commends @POTUS for issuing more than 1,700 grants of clemency primarily to nonviolent drug offenders who would have received a lower sentence if they were charged with the same offenses today.
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— House Judiciary Dems (@HouseJudiciary) May 19, 2022
Pressley’s proposal would establish an independent clemency board comprised of appointees including behavioral health experts and people who were formerly incarcerated.
“I believe that people closest to the pain should be the closest to the power,” Pressley said, “driving and informing the policymaking.”
“Growing up with an incarcerated parent, I can only imagine how different my own childhood would have been if my father was able to get the medical help and treatment he desperately needed and deserved,” Pressley said. “Instead his opioid addiction, which today would be treated as a public health issue, was criminalized.”
Pressley applauded Biden’s limited commutations and pardons last month but said Congress needs to continue the momentum to address the backlog of clemency petitions.
“There must be a structural change,” she said. “More than 150 years ago, Congress created the current clemency process, and now is the time for Congress to fix it.”
Republicans at Thursday’s hearing said they generally support a president’s use of clemency, arguing that many Democrats failed to appreciate Trump’s granting of clemency to military service members involved in war crimes cases. Other GOP committee members stressed that very few people currently incarcerated are behind bars for simple cannabis possession crimes.
Congress must help the Office of the Pardon Attorney and the President reach more of these individuals and provide relief that will allow them the ability to return to their communities from home confinement without risking a return to prison.
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— House Judiciary Dems (@HouseJudiciary) May 19, 2022
One witness who spoke during Thursday’s hearing in favor of creating an independent clemency review body was Rachel Barcow, an New York University School of Law professor. Barcow noted the reform wouldn’t cut out the DOJ entirely.
“You still get input from the Department of Justice, you still ask about facts of the case from prosecutors,” Barcow said, “but you have it be evaluated by an objective party that doesn’t tilt on one side or the other. It’s just trying to think what is the best outcome and advice to give the president.”
So far Biden’s limited commutations have typically been granted to people with low-level drug offenses with up to four years left in their sentence and who were eligible for home confinement. About 8,300 federal inmates were allowed to temporarily transition to home confinement amid the coronavirus pandemic in 2020.
Biden has received about a dozen letters from lawmakers, advocates, celebrities and people impacted by criminalization to do something about the people who remain behind federal bars over cannabis. After months of inaction, some members of Congress like Sen. Elizabeth Warren (D-MA) have even sent follow-up letters demanding a response.
Among those pushing for reform is Weldon Angelos, a person who received a president pardon from Trump in 2020 and has since become a key advocate for criminal justice reform who has worked with both the Trump and Biden administration of furthering relief.
“We recently had an impactful meeting at the White House to discuss clemency matters, especially for those incarcerated for cannabis offenses, and also those out on CARES Act,” Angelos recently told Marijuana Moment. “The meeting was very encouraging, and we believe President Biden will keep his campaign pledge to grant categorical clemency for cannabis offenders.”
Biden campaigned on cannabis reform, promising that he would push for decriminalization, rescheduling and ensuring that people aren’t locked up over marijuana. Late last year, White House Press Secretary Jen Psaki said Biden had “every intention of using his clemency power.” In the meantime, advocates and some lawmakers have grown impatient.
A report published by the Congressional Research Service (CRS) last year affirmed that the president has the power to grant mass pardons for cannabis offenses. It also said that the administration can move to federally legalize cannabis without waiting for lawmakers to act.
Despite having the authority to unilaterally issue a mass pardon for people with federal cannabis convictions, however, Biden until last month had previously only ceremonially pardoned turkeys around Thanksgiving.
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