Proposal in Congress Would Revise Procedures for Inmate Clemencies

The Justice Department would lose its exclusive authority to review clemency petitions under a bill pending in Congress.

Instead, the authority to recommend which inmates are set free would be turned over to an independent commission that includes ex-offenders, members of the public, corrections officials, public defenders and others.

The bill pending before a House Judiciary subcommittee is similar to several pieces of legislation approved in recent years by the D.C. Council intended to give convicts a second chance.

The move in Congress received an extra push by President Donald Trump’s decision last month to grant clemency to 11 high profile convicted felons. They included Wall Street financier Michael R. Milken, former Illinois governor Rod R. Blagojevich and top federal procurement officer David Safavian.

Critics of the clemencies, such as former presidential candidate Elizabeth Warren, said Trump showed favoritism toward politically well-connected persons but overlooked thousands of other more obscure inmates serving overly harsh sentences. Mandatory minimums and sentences for minor drug offenses are the most commonly cited examples.

“With President Trump, I’m afraid that we’ve received a new low when it comes to the clemency power in terms of the number of petitions he has granted, his seemingly self-interested motivations for his clemency decisions, his unwillingness to use a systematic, transparent, objective process for considering clemency petitions,” said U.S. Rep. Steve Cohen, a Tennessee Democrat and chairman of the subcommittee on the Constitution, civil rights, and civil liberties, during a hearing last week.

Currently, the Justice Department’s Office of the Pardon Attorney reviews cases before sending recommendations to the U.S. deputy attorney general, who makes a second review before forwarding them to the White House. Article 2 of the Constitution gives the president broad authority to grant clemencies in criminal cases.

Cynthia Roseberry, an American Civil Liberties Union deputy director for national policy, testified before Congress that the clemency petitions of prisoners are decided through “secretive deliberations.”

“The clemency process must be completely independent of the system employed to incarcerate the millions of people,” Roseberry said.

The “independent commission” she recommended would use objective criteria and operate openly.

Rachel Barkow, a New York University Law School professor, said Congress’ decision in 1984 to eliminate parole resulted in many inmates languishing in prison unfairly, even when they deserve to be released. Clemencies should be used more widely to handle their cases, she said.

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