Thousands of prisoners caught in broken clemency system as Congress pushes Biden to make change
Biden has yet to process thousands of applications, members of Congress introduced the FIX Clemency Act to speed up that process
Congress Members and the president rode into office last year on the promises of passing serious criminal justice reform. But as the months passed, a slow walking administration and procedural hurdles led to growing frustration.
As even heralded policy agendas like Build Back Better, a social spending bill meant to address child care, drug pricing negotiations and green energy, and the rest of the President’s proposed agenda is left behind by the political grindstone in the Capitol, criminal justice reform seems to be falling ever further into the background.
However, a component of criminal justice reform can be implemented by the White House without a single vote from Congress. As of Feb. 2, 18,233 clemency petitions await processing at the Department of Justice. Many of the inmates sending these clemency petitions are non-violent drug offenders.
If Congress is indeed incapable of passing any criminal justice reform legislation in the next year before the midterms the pardon power of the Presidency may be the President’s best bet at making a difference when it comes to mass incarceration.
If the Biden administration takes up the challenge of processing this large backlog of clemency requests, he could make a difference in thousands of families’ lives.
“If you had a fully staffed office of Pardon Attorney who was committed to reviewing petitions and you had a president who said ‘I want 100 petitions on my desk at the end of each month,’ I think we’d see better output,” the President of Families Against Mandatory Minimums (FAMM), Kevin Ring, said.
Clemency is a power given to the President in the U.S. Constitution to “grant Reprieves and Pardons for Offenses against the United States.” Presidents are able to end imprisonment for people in the federal system.
In 2021, the Biden Administration’s Justice department received 191 petitions for pardons and 2,952 petitions for a commutation of sentence, according to The Office of the Pardon Attorney. Among those petitions, zero were granted. The Biden administration rejected 63 pardon petitions and 1,128 commutation sentences in the year 2021.
A commutation of a sentence means the president only reduces the time served rather than completely wiping a record clean whereas a pardon completely exonerates a person of a crime. These pardons are often used after a sentence is already complete as well to clear the record of the ex-inmate.
But the clemency process is slow and haphazard, as Trump demonstrated with his 143 pardons from Lil Wayne to Stephen Bannon in the waning hours of his presidency while in comparison, most inmates and their families wait years for their claim to even be processed much less granted. During the Trump Administration among the 10,109 clemency petitions filed, 7,498 were closed without presidential action and 98 clemency petitions were rejected. There were 94 clemency petitions granted.
President’s have taken radical moves with the Pardon power before. During the Carter Administration, the President pardoned all draft dodgers of the Vietnam War. In theory this cleared the record of hundreds of thousands of young men, though the vast majority of draft dodgers were never charged.
On December 10th of 2021, Rep. Ayanna Pressley (D-MA), Rep. Cori Bush (D-MO) and Rep. Hakeem Jefferies (D-NY) announced legislation to attempt to expedite the clemency process called the Fix Clemency Act.
At the legislation announcement, Rep. Bush spoke directly to the incarcerated people that are impacted by the lack of urgency in the clemency system, “You are not inmates, you are not convicts or felons […] you are people who are incarcerated, people who deserve the right to vote, people who do not deserve to die behind bars, people with families who depend on them and people who need us to care, center and protect them.”
These members of Congress are calling for a new, independent clemency board to replace the current Department of Justice process. The proposed board, which would be appointed by the executive branch, would be run by experts in behavioral health, rehabilitation, and reentry.
The legislation would aim to expand access to the applications for clemency and would ensure that all applications would be reviewed within 18 months of the time they were submitted.
The board established by this legislation would have the power to compel federal judicial officers and federal agencies to give information that may be relevant to an applicant’s case.
The board would consist of nine members and would have to contain at least one individual who has been incarcerated in the past, one individual who has been directly impacted by crime, an individual who has served on a Federal defender organization and an individual who will represent the Department of Justice.
The bill would have no ability to ensure that an incoming president would have to abide by the board that was created. Kevin Ring explains, “One concern we have about some of these bills is how prescriptive they get about the process the president needs to follow. The President can do what he wants. He can use a board, not use a board, or use existing systems,” he said.
“I’m not sure it’s congress’s job to tell them how to review these or what the process should be. I think that’s the President’s job. So, I appreciate the spirit of it and I think we’re all pushing in the same direction,” Ring added.
Since the bill’s introduction on Dec. 9 2021, it has picked up little traction. Since its introduction, it has received 20 sponsors in the House of Representatives. The bill is currently in committee.
This legislation is a small part of a greater promise from all levels of the Democratic party to reform the American criminal justice system and like much of the Biden campaign’s agenda, its progress has been slowed by infighting and bureaucratic hurdles.
The obstacles are often cited by the Biden administration as the reason these agenda items cannot pass. Even without the implementation of this legislation, the Biden Administration could be more proactive with clemency applications.
“We want to see more clemency grants given and that would probably benefit from a better process,” Kevin Ring, president of Families Against Mandatory Minimums, said. “But I think what we lack is political will.” He thinks that the lack of political will to grant clemencies is a bigger problem than the process.
“There’s a lot of focus among people about moving it out of the Department of Justice and into the White House, and I think that sounds great, move it to NASA for all I care, just get a President that wants to grant these things,” Ring said.
Presidents have been proactive in granting clemency in the past. The Obama Administration granted 1,715 commutations and 212 pardons, the majority of which took place at the tail end of his presidency.
“Had he dedicated the resources to doing that throughout his eight years, he could have gone through the whole backlog,” Ring said.
Members of the Democratic Caucus in the house have made their requests for the President to take dramatic executive action for nearly a year. On Feb. 18, 2021, 35 members of Congress signed a letter requesting the president to pardon all Federal non-violent cannabis convictions.
But a year into his presidency Biden is not ramping up the number of clemencies he is granting. Perhaps he will have a similar blitz during his lame duck session like his predecessors did, but it is unlikely the administration would review every outstanding clemency application.
The administration has been proactive in other regards, for instance the Department of Justice allowing prisoners to remain on house arrest if they were granted such accommodations due to covid. When it comes to clemency, President Biden has conformed to the status quo which leaves over 18,000 inmates waiting in prison for their applications to be processed.
“With his clemency authority, President Biden has a powerful tool available to him to reduce the federal prison population and to rectify the injustices created by the criminal legal system,” Pressley argued at the event announcing the FIX Clemency Act.