[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
PRESIDENTIAL CLEMENCY AND OPPORTUNITIES FOR REFORM
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HEARING
BEFORE THE
SUBCOMMITTEE ON THE
CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
SECOND SESSION
__________
MARCH 5, 2020
__________
Serial No. 116-78
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Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available http://judiciary.house.gov or www.govinfo.gov
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U.S. GOVERNMENT PUBLISHING OFFICE
41-289 PDF WASHINGTON : 2020
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COMMITTEE ON THE JUDICIARY
JERROLD NADLER, New York, Chairman
ZOE LOFGREN, California DOUG COLLINS, Georgia,
SHEILA JACKSON LEE, Texas Ranking Member
STEVE COHEN, Tennessee F. JAMES SENSENBRENNER, Jr.,
HENRY C. ``HANK'' JOHNSON, Jr., Wisconsin
Georgia STEVE CHABOT, Ohio
THEODORE E. DEUTCH, Florida LOUIE GOHMERT, Texas
KAREN BASS, California JIM JORDAN, Ohio
CEDRIC L. RICHMOND, Louisiana KEN BUCK, Colorado
HAKEEM S. JEFFRIES, New York JOHN RATCLIFFE, Texas
DAVID N. CICILLINE, Rhode Island MARTHA ROBY, Alabama
ERIC SWALWELL, California MATT GAETZ, Florida
TED LIEU, California MIKE JOHNSON, Louisiana
JAMIE RASKIN, Maryland ANDY BIGGS, Arizona
PRAMILA JAYAPAL, Washington TOM McCLINTOCK, California
VAL BUTLER DEMINGS, Florida DEBBIE LESKO, Arizona
J. LUIS CORREA, California GUY RESCHENTHALER, Pennsylvania
MARY GAY SCANLON, Pennsylvania, BEN CLINE, Virginia
Vice-Chair KELLY ARMSTRONG, North Dakota
SYLVIA R. GARCIA, Texas W. GREGORY STEUBE, Florida
JOE NEGUSE, Colorado
LUCY McBATH, Georgia
GREG STANTON, Arizona
MADELEINE DEAN, Pennsylvania
DEBBIE MUCARSEL-POWELL, Florida
VERONICA ESCOBAR, Texas
Perry Apelbaum, Majority Staff Director & Chief Counsel
Brendan Belair, Minority Staff Director
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SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS,
AND CIVIL LIBERTIES
STEVE COHEN, Tennessee, Chair
JAMIE RASKIN, Maryland MIKE JOHNSON, Louisiana,
ERIC SWALWELL, California Ranking Member
MARY GAY SCANLON, Pennsylvania LOUIE GOHMERT, Texas
MADELEINE DEAN, Pennsylvania JIM JORDAN, Ohio
SYLVIA R. GARCIA, Texas GUY RESCHENTHALER, Pennsylvania
VERONICA ESCOBAR, Texas BEN CLINE, Virginia
SHEILA JACKSON LEE, Texas KELLY ARMSTRONG, North Dakota
James Park, Chief Counsel
Paul Taylor, Minority Counsel deg.
C O N T E N T S
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MARCH 5, 2020
OPENING STATEMENTS
Page
The Honorable Steve Cohen, Chairman, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties................ 1
The Honorable Mike Johnson, Ranking Member, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties................ 21
The Honorable Jerrold Nadler, Chairman, Committee on the
Judiciary...................................................... 23
The Honorable Doug Collins, Ranking Member, Committee on the
Judiciary...................................................... 25
WITNESSES
Kemba Smith Pradia, Founder, Kemba Smith Foundation
Oral Testimony............................................... 29
Prepared Testimony........................................... 33
Cynthia W. Roseberry, Deputy Director, National Policy Advocacy
Department, America Civil Liberties Union
Oral Testimony............................................... 37
Prepared Testimony........................................... 40
Mark Osler, Professor and Robert and Marion Short Distinguished
Chair in Law, University of St. Thomas School of Law
Oral Testimony............................................... 45
Prepared Testimony........................................... 47
Rachel E. Barkow, Vice Dean and Segal Family Professor of
Regulatory Law and Policy and, Faculty Director, Center on the
Administration of Criminal Law, New York University School of
Law
Oral Testimony............................................... 53
Prepared Testimony........................................... 56
LETTERS, STATEMENTS, ETC. SUBMITTED FOR THE HEARING
Items for the record submitted by the Honorable Steve Cohen,
Chairman, Subcommittee on the Constitution, Civil Rights, and
Civil Liberties................................................ 3
APPENDIX
Items for the record submitted by The Honorable Mary Gay Scanlon,
Subcommittee on the Constitution, Civil Rights, and Civil
Liberties...................................................... 85
PRESIDENTIAL CLEMENCY AND OPPORTUNITIES FOR REFORM
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THURSDAY, MARCH 5, 2020
House of Representatives
Subcommittee on the Constitution, Civil Rights, and Civil Liberties
Committee on the Judiciary
Washington, DC.
The subcommittee met, pursuant to call, at 9:06 a.m., in
Room 2141, Rayburn House Office Building, Hon. Steve Cohen
[chairman of the subcommittee] presiding.
Present: Representatives Cohen, Nadler, Raskin, Scanlon,
Dean, Garcia, Jackson Lee, Johnson, Jordan, Collins,
Reschenthaler, Cline, and Armstrong.
Staff Present: David Greengrass, Senior Counsel; Madeline
Strasser, Chief Clerk; Moh Sharma, Member Services and Outreach
Advisor; Anthony Valdez, Staff Assistant; John Williams,
Parliamentarian; James Park, Chief Counsel; Will Emmons,
Professional Staff Member; Matt Morgan, Counsel; Paul Taylor,
Minority Counsel; and Andrea Woodard, Minority Professional
Staff Member.
Mr. COHEN. The subcommittee of the full committee, the
Subcommittee on the Constitution, Civil Rights, and Civil
Liberties will come to order. Without objection, I am the
chair, and I am authorized to declare a recess of the
subcommittee at any time. I welcome everyone to today's hearing
on presidential clemency and opportunities for reform. I will
recognize myself for an opening statement.
Not far from here, almost 57 years ago, Dr. Martin Luther
King spoke movingly to remind America of the fierce urgency of
now, because now is the time to make justice a reality for all
of God's children.
We hold this hearing today to remind America that today
there are few things more fiercely urgent than the need to
grant clemency to the thousands who suffer from the burdens of
excessive and unjust imprisonment, or the collateral
consequences stemming from their criminal convictions.
Perhaps not coincidentally, these burdens are
disproportionately borne by people of color.
The Constitution provides the President with broad
authority to grant clemency because the Framers understood that
the criminal justice needed a safety valve that would guard
against excessive or unjust punishments. Article II, Section 2
gives the President the power to, quote, ``grant reprieves and
pardons for offenses against the United States except in cases
of impeachment,'' unquote. Until fairly recently, most
Presidents were relatively generous in granting clemency.
According to a statistical analysis by one of our witnesses,
Professor Rachel Barkow, between 1892 and 1930, 27 percent of
clemency applications resulted in some form of clemency.
As recently as the 1970s, President Carter granted 21
percent of the petitions he received; President Ford granted 27
percent; and President Nixon, who was famously known as a law
and order President, nonetheless, he granted 36 percent of
clemency petitions.
It was only the beginning of the 1980s that clemency grants
began to decline sharply. I have long been concerned with the
stinginess with which modern Presidents have granted clemency.
And between 2013 and 2014, I wrote four different letters to my
favorite President, President Obama, and then Attorney General
Holder, urging the President to grant more clemency petitions,
and authored two opinion pieces on the subject. And I would ask
unanimous consent to insert these letters and opinions pieces
into the record. Without objection, so done. Thank you.
[The information follows:]
MR. COHEN FOR THE OFFICIAL RECORD
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Mr. Cohen. With President Trump, I am afraid that we have
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.
In President Obama's situation, he was a little slower, or
a lot slower than I thought he should be, and I exorcised him
every time I saw him. Every opportunity I had with him, I told
him we need to get clemencies done and get it started.
He was a very thorough President. He set up a board. They
did issue, I think it was, give or take, 2,500 commutations or
pardons toward the end. They were all done objectively through
a process. I thought he should be done closer to 10,000 or
more, because there were so many people languishing. But he did
some, and he got it started.
With Trump, we have seen it change, though. There have been
very few pardons issued, commutations issued, and most of them
have been based on President Trump's whims, his noting who
supported the commutation or pardon request shows that they
were not done in an objective basis, but a subjective basis,
not what the law decided on an objective, look at your record
and your sentencing, and your reformation, but who wanted you
to be pardoned, and that is not the way we are supposed to do
it.
Presidents have customarily relied upon the recommendations
of the pardon attorney who is within the Department of Justice
in making decisions about clemency. Well, that process is
subject to legitimate criticism because Justice is often not
interested in granting clemencies that are involved with
prosecutions that underlings in Justice might have secured.
They are still involved in the clemency process and have been.
That process is the one we have, but President Trump, in
contrast, has completely circumvented even that process, the
Department of Justice has, in making clemency decisions, not
asking them to look at cases and give him advice, but treating
clemency like it is solely his personal gift to bestow upon
individuals, like the king, from which this power kind of came
overseas and into our Constitution.
And according to The New York Times, most of his clemency
grants were the results of these inside connections. Sylvester
Stallone for the posthumous clemency of Jack Johnson,
Kardashian woman for the other famous pardon of Alice Marie
Johnson, and a few of her friends or people that she met while
incarcerated. And then there has been others, similar with
Milken and others, Eddie DeBartolo.
So those were inside connections who were even boasted of
or publicized by President Trump, and sometimes it was the
promotion of Fox News, but not the clemency office in the
Department of Justice.
So, according to a review conducted by The Washington Post,
all but five of the 24 people who have received clemency from
Trump had a line into the White House, or currency with his
political base, meaning that that is not a blind process. Just
last month, President Trump issued seven pardons, four
commutations, including a pardon for the 1980s, quote, junk
bond king, Michael Milken, the very personification in culture
and life of Wall Street greed and excess, who was convicted and
served prison time for securities fraud and conspiracy.
According to The New York Times, Mr. Milken's pardon was a
result of lobbying by many individuals with close ties to
President Trump, including his personal lawyer, Rudy Giuliani,
who, I think, earlier, might have been his personal prosecutor,
and his largest donor, Sheldon Adelson. Treasury Secretary
Steve Mnuchin, Jared Kushner, and Ivanka Trump also advocated
for that pardon.
The Milken pardon shines a harsh light on the fact under
President Trump, pardons are mainly for the rich, the famous,
and the well-connected. And that was in spite the fact that Mr.
Milken, when he was convicted, was told not to make any deals.
And then he got a $50 million fee for doing the deal between
Time Warner and Comcast. That merger--was it Comcast? I think
it was. CNN. Time Warner. Whoever it was, it was a Ted Turner
deal. He got $50 million and wasn't supposed to do it.
Even when President Trump grants clemency in a deserving
case, he does so seemingly for the wrong reasons, and through
the wrong means.
In June 2018, he commuted the sentence of a lady who was
one of my constituents at the time, now an Arizonan, Alice
Marie Johnson, a 63-year-old woman serving a life sentence for
a non-violent drug offense, but only after reality TV star Kim
Kardashian lobbied on her behalf. While I strongly supported
the commutation of Ms. Johnson, as I have other constituents of
mine, President Trump appears to have considered the merits of
her application only because she attracted the attention of a
celebrity patron. Most of my constituents, or all of my
constituents, do not have that luck. Similarly, President Trump
posthumously pardoned boxer Jack Johnson, whose case was
brought by Sylvester Stallone.
Justice is supposed to be blind. The thousands serving time
for nonviolent drug offenses did not have Kim Kardashian or
Sylvester Stallone to plead their cases for clemency, but they
are just as deserving of relief, or maybe more so. These
nonviolent individuals should be released based on their
records and not celebrity endorsements, or arbitrary whims of
the President.
I have written President Trump and suggested setting up the
panel like President Obama had, and grant the clemency. Even
better than the bill that I think Congressman Collins might
have been a sponsor of, or the prime sponsor, the Second Chance
Act, which I proudly supported, even when Democrats were
resistant because it was a step in the right direction and a
good thing to do. But Second Step is not as good as, or can
cover as many people as clemency can. And so I urged President
Trump to use clemency, but did not hear back from him.
Clemency should be expanded to become a routine part of the
criminal justice system. The decisions as to when clemency
should be granted must be made on objective, transparent, and
systematic processes. This is right and just. This is the rule
of law. President Trump has granted clemency in 24 cases, but
there have been more than 7,700 petitions filed during his
President thus far. So it is not hard to figure. That is less
than 1 percent, way less than 1 percent. .3 percent, by the
way, and nowhere near the 36 percent of Richard Nixon.
Our Nation's prison population is larger than ever, and
many remain in prison because of mandatory minimums and
sentencing disparities that Congress repealed without making
the repeal retroactive. In other words, many remain in prison
based on public policy of Congress, avoiding leaving many
unjustly in prison. And while my concern is for justice and for
those without their families, and wallowing in our prison
system, everybody pays for this. The prison system is extremely
expensive, and taxpayers are paying for this lack of action.
We will hear from our witnesses' proposals for reform of
the clemency process, and ways to address the need for
clemency. In 2013, I proposed the creation of a compassionate
release review board that would review sentences of current
prisoners and make clemency recommendations. I also introduced
H.J. Res. 8, a constitutional amendment that would ensure that
no President could abuse the clemency power to escape
accountability for his or her own crimes. I hope we consider
these and other ideas.
I thank our witnesses for being here. I am looking forward
to a fulsome discussion on the subject, and I would now
recognize the ranking member of the subcommittee, the gentleman
from Louisiana, Mr. Johnson, for his opening statement.
Mr. Johnson. Thank you, Mr. Chairman, and welcome to the
House Constitution Subcommittee. I am glad to see students in
the audience. We are talking about important constitutional
matters here, so I hope you find it interesting.
This is an interesting hearing. It is on the presidential
clemency power. We get that power out of the Constitution. I
have to say at the beginning, I always disagree with the guy
sitting next to me, because we are in different parties, and I,
of course, disagree with his characterization of President
Trump's clemency decision process. And I am not so sure The New
York Times is the best source to evaluate the objectivity of
President Trump.
But that aside, Article II, Section 2 of the Constitution
is where we find the clemency power, and it gives the President
the authority, as the Constitution says, quote, ``to grant
reprieves and pardons for offenses against the United States
except in cases of impeachment,'' unquote.
Chief Justice John Marshall described the exercise of the
pardon power in 1833, and he said it this way: He said, quote,
``It is an act of grace preceding from the power entrusted with
the execution of the laws, which exempts the individual on whom
it is bestowed, from the punishment the law inflicts for a
crime he has committed,'' unquote.
Pardons have both a public and a private meaning, and to
some people, it even has a spiritual component. You think about
what the Apostle Paul explained to the church in Corinth in the
New Testament Book of Second Corinthians. He said it this way:
Now, if anyone has caused pain, he has caused it not to me but
in some measure to all of you. For such a one, this punishment
by the majority is enough. So you should rather turn to forgive
and comfort him, or he may be overwhelmed by excessive sorrow.
So I beg you to reaffirm your love for him.
I mean, that is what the Bible says. So the commission of a
crime, of course, does harm everyone, and that is why crimes
must be punished by government. That is kind of the role of
government is to maintain the rule of law. But not forgiving
also harms everyone, not only by denying individuals themselves
forgiveness when warranted, but by denying society as a whole,
the catharsis that comes with forgiveness, along with the
ability to move on as a people.
And, so, our Constitution grants the chief executive not
just the power to punish, but also the power to, in a legal
sense, forgive. That is a powerful thing. Of course, along with
any public power in democracy comes politics, and the larger
significance of any presidential pardon regarding any
particular person can too often be obscured today by partisan
political rhetoric. It happens all the time. You heard a little
bit of it already this morning. But as Alexander Hamilton wrote
of the pardon power in Federalist Paper No. 74, quote,
``Humanity and good policy conspire to dictate that the benign
prerogative of pardoning should be as little as impossible,
fettered or embarrassed. The criminal code of every country
partakes so much of necessary severity that without an easy
access to exceptions in favor of unfortunate guilt, justice
would wear a countenance too cruel,'' unquote.
See, our Founding Fathers sought to create a system in
which lines of accountability were clear so that people could
make reasonable decisions regarding whom was responsible for
what when they cast their votes for candidates. Too much
bureaucracy foils that plan of our Founders today. As one of
the witnesses here today, Professor Mark Osler, says in his
written testimony, quote, ``The Obama administration created a
system that not only left the broken system in place, but added
bureaucracy to it. The fact that good cases were left on the
table is revealed not only by the repeated rejection of Alice
Marie Johnson,'' who we heard about this morning, ``but the
thousands who have been released under the First Step Act. A
review by the DOJ's Inspector General revealed a wealth of
problems with the Obama program's implementation, many of which
could have been avoided if the underlying process had been
restructured,'' unquote.
Whatever its flawed implementation in any given
circumstance, the constitutional clemency power should not be
amended to limit presidential discretion. As Professor Osler
also states, quote, ``Clemency, after all, is not suited to be
a tool of tyranny. Tyrants gain power by putting people in
prison, not by letting them out. Hamilton was perhaps getting
to that and referring to clemency as a benign prerogative. We
may object to particular grants, but restrictions would be
consistent with neither the constitutional scheme or the intent
of the Framers,'' unquote.
I hope our hearing today will both recognize the need to
protect Americans from dangerous criminals which, we all
respect but also, allow some breathing space for the universal
soul of the pardon process, namely, forgiveness. The pursuit of
law and order, the encouragement of redemption are not mutually
exclusive pursuits. These are quintessential American values.
I will make one more Bible quote, since we are talking
about forgiveness. Micah 6:8 is in the Old Testament. It says,
He has shown the old man what is good and what the Lord
requires if you are to act justly, love mercy, and walk humbly
with your God. It must be possible to do all three because the
creator who has endowed us with all of these inalienable rights
and freedoms requires it of us. I hope we can do that.
I look forward to hearing from all of our witnesses here
today, and thank you again for being with us. I yield back.
Mr. Cohen. Before I recognize the chairman for his
statement, I want to address the school children who are here.
You heard some remarks by my colleague suggesting I had
injected politics into this and been partisan. I hope you were
here when I let you know that I have criticized President
Obama, too, for what I thought was a late process and not
issuing enough commutations; I wrote letters that I have
entered into the record about President Obama; and I supported
President Trump's Second Chance Act; and that I supported Alice
Marie Johnson's pardon, or commutation, excuse me.
But the fact is that is not partisan. And to say The New
York Times can't be objective, nobody can be in favor of giving
a pardon or a commutation to a junk bond king worth billions of
dollars who objects to and overrules the court's orders, and
flagrantly does.
I recognize Mr. Nadler.
Mr. Johnson of Louisiana. Touche, and I actually love the
guy. I really do.
Chairman Nadler. Thank you, Mr. Chairman. Before I begin my
prepared remarks, I would like to start by commenting on some
of the remarks we have just heard in the last few minutes. The
gentleman from Louisiana, I think it is, said that tyranny--and
quoted, I think, Alexander Hamilton. Tyranny can result from
putting people in jail, not from letting people out of jail. I
would point out it can result either way.
If you have a President or any executive who puts people in
jail when he shouldn't, who violates the rule of law, who
violates due process, obviously you are on the road to tyranny.
If you have a President who uses the pardon power to pardon his
own confederates in crimes, to pardon all of his friends, to
pardon anybody who may have committed a crime in his behalf so
that he can evade the rule of law, then that can lead to
tyranny, too.
And I would quote, the debates at the Constitutional
Convention, when they were debating the pardon power, and James
Iredell from Pennsylvania asked, or maybe the pardon power that
we are designing here is too broad, and what if a President
committed--what if a President engaged in criminal conspiracy
and pardoned his co-conspirators? And James Madison answered,
Well, that could never happen because a President would
immediately--any such President would be impeached. I would
submit the history of the last few months shows that Madison
was wrong, and that any such President would not necessarily
immediately be impeached, unfortunately, so we do not have an
effective guarantee against tyranny by a President, or by
anybody else or by a tyrant or would be tyrant who would use
the pardon power or threaten to use, as the current President
has, to pardon his own co-conspirators.
Article II, Section 2 of the Constitution provides the
President with the power, quote, ``to grant reprieves and
pardons for offenses against the United States except in cases
of impeachment.'' The fundamental purpose of the clemency power
is to ensure that justice is tempered with mercy. Although
presidential clemency is commonly viewed as an occasional act
of mercy, the Framers also understood that clemency is also
necessary to the fair administration of justice.
As Alexander Hamilton noted in Federalist 74 regarding the
clemency power, and I think this has already been quoted this
morning, without an easy access to exceptions in favor of
unfortunate guilt, justice would wear a countenance too
sanguinary and cruel. As such, presidential clemency should be
a routine part of the Federal criminal justice system.
Unfortunately, over the past several decades, under both
Republican and Democratic administrations, the executive branch
has failed to fully employ the clemency power to help remedy
injustice as the Framers intended.
For example, after decades of mandatory sentencing policies
in the so-called war on drugs, far too many non-violent Federal
offenders, disproportionately people of color, sit in prison
unnecessarily, serving unduly harsh sentences. And many others
continue to face hardships after serving their time and seeking
full entry, reentry into their communities because of the
collateral consequences caused by their Federal convictions.
Yet, thousands of petitions for clemency remain pending with
the Department of Justice's Office of Pardon Attorney, to which
the executive branch has customarily delegated the
responsibility of processing candidates for clemency.
Presidential administrations of both parties have been
rightly criticized for deficiencies in the Department of
Justice's clemency process. In fact, our witnesses today all
agree that the current process housed at the Justice
Department, must be reformed in order to increase the rate and
diversity of clemency grants. Some critics of the current
process even believe that it should be taken out of the
Department of Justice altogether.
I am pleased that this hearing will allow us to examine
various proposals for reforming the clemency process. While the
current DOJ process may be in real need of reform, at least it
is a process. Legitimate questions have been raised about
President Trump's seemingly arbitrary approach to clemency,
which seems to have completely bypassed the Department of
Justice.
To be clear, concerns that special access to the presidency
plays a role in the granting of clemency are not unique to
President Trump. This exercise of the clemency power over the
past 3 years, however, as pointedly demonstrated that special
access to the President is not just a factor in some clemency
grants, but in this administration, it may well be the only
factor.
Just last month, President Trump granted clemency to 11
individuals. The New York Times reported that these recent
clemency grants came about through, quote, ``An ad hoc scramble
to bypass formal procedures used by past Presidents,'' and
were, quote, ``driven by friendship, fame, personal empathy,
and a shared sense of persecution.''
The Times also noted that every single one of their
recipients had an inside connection or were promoted on Fox
News. This is not to say that every recipient of the clemency
grant by President Trump is undeserving of mercy and
forgiveness, but we must put his clemency decisions in context.
To the point of this hearing, while President Trump has
made publicizing clemency grants a hallmark of his
administration, he has issued very few of them. According to
one witness's data analysis, he has granted only 24 out of
7,748 petitions received during his administration, or .3
percent of petitions. These numbers are exceptionally low even
when compared to the historically low grant of President
Trump's recent predecessors.
While Congress has little authority over the President's
exercise of the clemency power, Congress does have the power to
enact criminal justice reform measures. I commend the President
for joining with Congress to enact the First Step Act into law
2 years ago. That said, paving the way for more clemency grants
does not lay in a process that depends almost entirely on
special access to the White House. It is within President
Trump's power today to create a process that ensures clemency
petitions are treated fairly as a routine aspect of the Federal
criminal justice system. To the extent that Congress can assist
with this process, we should examine all options available to
us.
With that, I would like to thank the witnesses for
appearing, and I look forward to hearing their testimony today.
Mr. Cohen. Thank you, Mr. Chair. I now recognize the
ranking member of the committee and the prime sponsor of the
First Step Act, Mr. Collins of Georgia.
Mr. Collins. Thank you, Mr. Chairman.
I came here this morning on a day in which we are flying
out, hoping that we would talk about a positive thing that we
are working for, and instead, they can't help themselves.
The chairman of the subcommittee, the chairman of the
committee can't help themselves but to politicize. They just
don't like the President. Let's put a sign in this committee
room. As long the Democrats are--we can put up there we don't
like the President. We know it, so let's get over it, okay.
Yes. I mean, if we want to go back, and we will talk about
President Obama on the last day commuting 300, including
Chelsea Manning? I mean, if we want to talk about these, let's
do that, but why don't we talk about the positive? We don't
want to, because we failed in impeachment, and we can't forget
it. I just--it is just stunning to me. This committee, which
can do so much to help those that are incarcerated, those that
are facing the criminal justice system, those that are going
through it, has frankly just been AWOL the last year and a
half.
But we did something in the last term, and in fact, this
what makes this so much sadder. At last Congress, I did partner
with a number of my colleagues across the aisle, dear friends,
Hakeem Jeffries and others, to get the First Step Act to
President Trump's desk for a signature. Yes. President Trump's
desk for a signature, after 8 years under the previous
administration, which we talked about it a lot. I was
supportive of those measures. It never happened. Never
happened. So the first meaningful stuff that actually happened
is from President Trump.
As many of you know, that bill was near and dear to my
heart. It was something we put a lot of time and effort into.
And my colleagues on the other side of the aisle, Hakeem in
particular, who did yeoman's work on his side and our friends
in the Senate who added things to it, but also worked yeoman's
work, made something different for the American people.
When Matthew Charles walked into the room just beside me in
that library and hugged me, and as he had done with Hakeem and
others, saying I am now out of prison because of the First Step
Act, thank you, and now his life has changed and is different.
Those are the positive stories we need to talk about. Those are
the things that clemency can bring, that pardons can bring.
Just simply griping at a President you don't like because the
way that it has been handled, and because you can go back on
both sides and talk about how Presidents have not done it over
the past 25 years is not the way to start this.
Since the First Step Act was signed into law, we have seen
communities restored, hope renewed, and families reunited. That
legislation is the measure of mercy that should serve as a
guide towards potential future reforms. The First Step Act
ensures dangerous violent criminals serve their time behind
bars. It excludes the Nation's most dangerous offenders from
applying any time credit for their sentences, and no prisoner
that has a recidivism risk level higher than low is eligible
for prerelease into custody under the First Step Act. And the
warden, who ultimately knows the prisoner best, makes the final
decision. There is a lot of lies going on about this act. This
is what it actually does.
And it all goes back to what I used to say about this
building, monies and morals. It is how we spend our money for
people that we do incarcerate, that our morals are how we feel
about them, that we give them a chance when they get out to
make something of their life. Ninety-five percent of all
individuals who go to jail get out. They don't go there to die.
They get out. What are we doing as a Federal system, and how
are we encouraging State and locals to look at them as human
beings that they are, many who made mistakes, many of them made
tragic mistakes, many of them with mental health, with
addictions and other things, we have got to provide a better
way.
For those 5 to 10 percent who need to stay in forever, they
have got plenty of jail space for them. If you want to live
outside the law, and you want to do something so heinous, you
are going to stay in there, and nobody has said you can get
out. But for those who deserve a chance, that is what this bill
does.
The First Step Act embodies the mercy and forgiveness that
must accompany any law enforcement regime governing human
affairs. I stood by the President when he made his remarks last
year at the Prison Reform Summit and the First Step Act
celebration, when he stated this landmark legislation will give
countless current and former prisoners a second chance at life,
and a new opportunity to contribute to their communities, their
States, and their Nations.
As President, I pledge to work with both parties for the
good of the whole Nation. The more I spoke and met with those
individuals, those involved in our criminal justice system, the
more clear it became, that unfair sentencing rules were
contributing to the cycle of poverty and crime like nothing
else before. It was time to fix this broken system and to
improve the lives of so many nonviolent prisoners who will have
opportunity to participate in vocational training, education,
drug treatment programs.
When they get out of prison, they will be ready to get a
job, instead of turning back to a life of crime. As we consider
executive clemency process, I would hope the same sentiments
will help guide us today, even with the start of this hearing.
The constitutional authority to the President to pardon
offenders under the Constitution is very broad, and not up for
changing by law in this committee. That is a constitutional
guarantee.
You want to have a constitutional amendment, maybe so, but
not any other way. Congress doesn't have the constitutional
authority to restrict the President's pardon authority in any
significant way. And the Constitution gives the President vast
ways to decide who may receive a pardon and when it be issued.
But there is also precedent for Congress to provide a
variety of ways in which we can, with the Department of Justice
and other entities, assist the President in evaluating
applications. The result of any such evaluation is simply
advisory, and they cannot bind the President's Article II
authority to pardon.
The President also can't be required to consult with any
person or entity before considering a pardon. But the President
can consider standards for reviewing pardon petitions, and the
Department of Justice has offered just that in the past and
continues to do so today.
Factors taken into consideration include post conviction
conduct, character, and reputation, seriousness and relative
offense, acceptance of responsibility, remorse, atonement, and
the need for relief, and official recommendations and reports.
Of course, beyond such official guidance, the President can
always consult with his beliefs and faith understandings.
In my experience, and from my background, I have been moved
again by the words of the Psalmist who said, You, Lord, are
forgiving and good, abounding in love all who call to You.
Stated in the New Testament in Corinthians, he says that we are
committed to a message of reconciliation. That is faith. But
the best many times comes from just the simple instructions
that we find in Ephesians, that says, Be kind and
compassionate, one to another, forgiving each other just as
Christ forgave you.
The fundamental message of Scripture which drives many,
including myself, speaks of promise, hope, and redemption
always following human cruelty. It is with that spirit that I
would hope from here on out we approach this subject today,
because at the end of the day, it is not about what goes on on
this stage right here. It is about those who right now who are
behind bars, it is behind those who are getting ready to enter
the criminal justice system, who are going through the
struggles that this committee can help and can be a part of.
And if we focus on them, then lives can be changed.
Instead of making it harder, we ought to be reaching out
with a hand to lift up, because they are the least among us.
With that, I yield back.
Mr. Cohen. Thank you. Now that we have had our spiritual
hour, I would remind the witnesses and the committee that this
hearing is entitled, and is, Presidential Clemency and
Opportunities for Reform, not what I have done in the past and
why you should elect me Senator from Georgia. I will now
introduce each of the witnesses, and after each introduction,
will recognize that witness for his or her oral testimony.
Please note that your written statement will be entered into
the record. I ask you to summarize your testimony to 5 minutes.
To help you stay within the time, there is lights in front of
you. The green light means go. The yellow means you have got a
minute left, and red means you should be finished at that time.
Each witness is under a legal obligation to provide
truthful testimony in answers to the subcommittee and that any
false statement you make today may be subject to prosecution
under Section 1001 of Title 18 of the United States Code.
Sometimes people have been sworn in by committees, sometimes
not. It is not a requirement, and there is nothing in law to
say that you should be sworn. That would mean that you would
take an oath under God as a witness to do so. That is what I
call the Mitt Romney oath, that God requires you to do what is
right. But we have only seen that happen once recently, so I
won't do that here.
Our first witness is Kemba Smith Pradia. In 1994, Mrs.
Pradia, who had no prior criminal record, was sentenced to 24-
1/2 years in prison for conspiracy in her boyfriend's illegal
drug-related activities, a nonviolent, first-time offense. Due
to Federal sentencing guidelines in place, the court could not
account for the substantial mitigating factors in her case,
including that she participated in her boyfriend's criminal
activities out of fear for her life. In 2000, President Clinton
commuted her sentence to time served. In December 2014, she was
appointed to the Virginia Criminal Sentencing Commission. In
2019, she was appointed to the Virginia Parole Board, the first
former inmate to serve on the parole board. She is also the
author of Poster Child, a book about her experiences with the
criminal justice system, and works as an advocate for criminal
justice reform.
After her release, Mrs. Pradia earned a Bachelor's degree
in social work from Virginia Union University and a law degree
from Howard University School of Law. Thank you, and you are
recognized. Was there a mistake there? You are shaking your
head, but you are recognized for 5 minutes. Did we make a
mistake in your intro?
Ms. Pradia. No law degree.
Mr. Cohen. Okay. You are recognized.
STATEMENTS OF KEMBA SMITH PRADIA, FOUNDER, KEMBA SMITH
FOUNDATION; CYNTHIA ROSEBERRY, DEPUTY DIRECTOR, NATIONAL POLICY
ADVOCACY DEPARTMENT, AMERICAN CIVIL LIBERTIES UNION; MARK
OSLER, PROFESSOR AND ROBERT AND MARION SHORT DISTINGUISHED
CHAIR IN LAW, UNIVERSITY OF ST. THOMAS SCHOOL OF LAW; AND
RACHEL BARKOW, VICE DEAN AND SEGAL FAMILY PROFESSOR OF
REGULATORY LAW AND POLICY AND FACULTY DIRECTOR, CENTER ON THE
ADMINISTRATION OF CRIMINAL LAW, NEW YORK UNIVERSITY SCHOOL OF
LAW
STATEMENT OF KEMBA SMITH PRADIA
Ms. Pradia. Good morning, committee members. I am humbled
to have this opportunity to testify before you today. Despite
me being already committed to speak at North Carolina Central
University later this evening, it was important for me to be
here. My prayer today is that our testimonies will go beyond
these walls, and move the hearts of Congress and our President.
Almost 20 years ago, President Clinton changed my life
forever by freeing me from an excessive prison sentence. It was
a U.S. President that had the power to change my fate. It was
an act of mercy. In 1994, I was sentenced to 24-1/2 years in
Federal prison, even though I had no prior record. The
prosecutor said I didn't handle, use, or sell the drugs that
were involved, and I didn't commit a violent crime.
Ultimately, I was a college student and girlfriend of a
drug dealer who was abusive. I turned myself in to the
authorities 7 months pregnant with my first child and was
denied bond.
But in the 1990s, there was no room to see me as a human
being. I was seen as a statistic, another single young black
mother who was involved with drugs. I was seen as a disposable,
like my life had no value. The judge sentenced me to 24 years
and 6 months. At 23 years old, I was sentenced to more time
than I had been living on this earth, and I wasn't supposed to
be released until my son was a grown man.
There were several factors that led to me receiving
executive clemency: First, the media. In particular, black
media took interest in reporting my story. There was a magazine
called Emerge Magazine that did an extensive article about my
story which led to the NAACP Legal Defense Fund, LDF, taking on
my case pro bono. I had two parents who were deeply dedicated
and sacrificed a great deal to support me, not only by caring
for my son, making sure I had money on my books, and prison
visits, but my dad is actually here in the room. They traveled
across the country advocating for my freedom, and educating the
public about drug policy and sentencing.
There were individuals in national organizations who
organized rallies and writing campaigns because they thought
what happened to me was unjust. In the 1990s, black women were
one of the fastest-growing populations going to prison, so
Elaine Jones, Director of LDF, enlisted black women's
organizations in which she was a member to invest in advocating
for my release, organizations such as Delta Sigma Theta
Sorority, Incorporated, Links, Incorporated, and the National
Council of Negro Women. It became bigger than just advocating
for me. They were hoping to set a precedent for others to
receive their freedom.
There were even congressional Members who were on this very
committee such as my dad told me how he met with Congressman
John Conyers, who was chair at the time, but there were
Congressman Bobby Scott and Maxine Waters who were champions in
advocating for my release.
The criminal justice reform movement wasn't what it is
today. And after serving 6\1/2\ years, it was a modern day
miracle for President Clinton to grant me executive clemency in
December 2000. It was said that he was trying to do a
redemptive act during the 25th hour of his presidency to write
the wrongs of him signing the crime bill that caused the big
prison boom. I, like Alice Johnson, came out singing praises to
the President, even though there was some people in the
community who felt it extremely different than me.
A few days after my release, my mother saw me tearing up,
and she asked me what was wrong. And I told her that I was
having a hard time dealing with the fact that I left so many
men and women behind bars that deserve to be home too. One of
those women was Michelle West, who is still serving a double
life sentence, and has been incarcerated for 27 years. On the
day that I was released, I spent all day in the visitation room
with my attorneys from LDF. As hours passed by, and no prison
staff told us anything, I had begun to think it, my
commutation, wasn't going to happen. After my visit, and going
through the squat and cough, Michelle was the first person
waiting for me outside the door as I walked back on the yard to
tell me, Kemba, you are going home. They said your name on CNN.
I remember vividly to this day how the prison was on lockdown,
and the women were yelling me well wishes as I walked out of my
unit to exit the prison yard.
Even though that was a surreal moment for me, the only
thing I can remember is the overwhelming feeling of heartache
that took over me. That heartache and survivors guilt motivated
me to speak about my experience, and I became a national and
international public speaker. My lived experience has led my
role as a domestic violence survivor, national advocate, and
consultant in the criminal justice arena for over 20 years,
working with women and youth, national organizations,
universities, and corporations and the media. I held the
position of State Advocacy Campaign Director with the ACLU of
Virginia, worked with senior White House and the United Nations
in Geneva, Switzerland, members of Congress, and I have led
trainings for Federal and State probation organizations across
the country. In 2019, I was appointed as a member of the
Virginia Parole Board by Governor Ralph Northam.
Today, I am not here just representing myself, I am
representing the formerly and currently incarcerated community.
There are some of us that have been in this movement for years.
In 2016, President Obama invited a group of us that had
received executive clemency from Presidents to the White House.
We had the opportunity to discuss our reentry back into society
and our lives now. It was said that it was an historic day
because that had never been done before.
President Obama commuted more sentences than any President
on record, which was over 1,700. Of those, were 568
incarcerated individuals with life sentences who applied. We
are grateful for what President Obama did, but we were also
disappointed that he wasn't able to do more, because there were
over 36,000 petitions submitted. We were disappointed that
Alice Johnson, Michelle West, and William Underwood and other
sentences had not been commuted as well.
When President Trump came into office, we assumed that
there would be no progress with criminal justice reform as it
related to drug policy and sentencing, especially with Jeff
Sessions being Attorney General. We were wrong.
To my surprise, I was invited to the White House to hear
President Trump introduce the First Step Act, and it evolved to
include language in which Congress was able to enact, and there
have been many beneficiaries of this legislation who are
singing praises to this administration.
We are all supportive and happy for those that are being
released. My criticism, ever since President Trump has been in
office, is what about the clemency initiative, and the
thousands of people that are still waiting on a response.
President Trump has only commuted 10 individual sentences since
being in office. I was an advocate for Alice Johnson. I am
grateful that she has a champion like Kim Kardashian who has
access to the President to advocate for her release. But there
are others who are deserving of this act of mercy, and the
President is their last resort.
There are shortcomings of the Federal clemency process.
Even with my own situation, I became the poster child for
sentencing, drug sentencing gone wrong, but I know I received
relief because I had the privilege of my background, of being a
college student with two middle class parents who were
advocating for my release who had support from organizations
that typically in the past had conservative views when it came
to criminal justice. Not everyone has this exposure and access
that I had, but they were just as deserving of this
presidential act of mercy.
Mr. Cohen. You have to wrap up.
Ms. Pradia. Just real--I will wrap up. Last year, I was
invited to the White House for a criminal justice reform
strategy session, discussing next steps of clemency. As I sat
at the table, I noticed that there was not a representative
from any of the national organizations that have typically been
involved in having these conversations. I participated, even
though I must admit I was uncomfortable. I leaned into knowing
that Van Jones and Topeka Sam sat at these tables before me in
order to generate movement on our issues. Needless to say,
after my participation, I heard nothing further.
As this administration moves forward with the new clemency
initiative, and putting the White House more directly in
control of the process than the Justice Department, I would
strongly suggest you include organizations that have been
working on the issues for decades, and have a diverse group of
individuals from attorneys, researchers, social workers, people
who are in the media who have received commutations.
Most importantly, I challenge this administration to break
President Obama's record with commutations. Some are critical
of how this power is being used to release President Trump's
allies. If I am brutally honest, I don't care about them as
long as you are releasing my people out of prison who deserve
the same opportunity that I have been given, who are no threat
to public safety, which could even mean few violent offenders.
To this judicial committee and Congress, I urge you to be
advocates like Virginia Congressman Bobby Scott, Maxine Waters.
I am sure you hear from plenty of family members who live in
your district. Please bring these compelling stories of
individuals who deserve second chances to this administration's
attention. Thank you. [The statement of Ms. Pradia follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you. And I appreciate your history and
your testimony, but you were 5 minutes over. And the yellow
light means you have got one left minute, and the red light
means your time is up. We have got to go have votes soon, and
we want everybody to have a chance.
Our next witness is Cynthia Roseberry. Ms. Roseberry is
Deputy Director of National Policy Advocacy for the ACLU. Prior
to joining that organization, she was a member of the Charles
Colson Task Force, a bipartisan task force charged with
examining overincarceration and making recommendations to the
President, Congress, and the Attorney General on reducing
prison populations.
In 2014, she served as manager of the Clemency Project, a
national pro bono effort to provide assistance to clemency
applicants. She has worked as a Federal defender in the Middle
District of Georgia. She has a J. D. From Georgia State
University, a B.S. From Wilberforce University. You are
recognized.
STATEMENT OF CYNTHIA ROSEBERRY
Ms. Roseberry. Mr. Chairman, Ranking Member Johnson, and
members of the committee, thank you for the opportunity to
appear before you today.
Thousands of people languish in Federal prison, subject to
draconian and unjust sentences because of the abolition of
parole and failure to retroactively apply reforms, like the
sentencing provision of the First Step Act. Long after they
have served substantial time in prison, been rehabilitated, and
are ready to return to their communities, tens of thousands of
people remain incarcerated because of the system's failure to
release them. And although it should not be the lone response
to overincarceration, the Article II clemency power is a useful
tool to begin to immediately correct the horror of
unnecessarily long sentences.
Clemency power belongs to the executive who has the broad
discretion to use it, but it is precisely because this power is
invested in this way that there is a heightened need for the
appearance and substance of fairness and justice.
This is the foundation of our faith and our democracy. This
power must not be exercised with people in the same manner as
it is used for turkeys in November, sparingly and reserved for
a lucky few who are called to the attention of the executive
because of connection, financial status, or celebrity.
Thousands should have access to clemency. The average
person should be assured that their petition for clemency will
not require more than evidence of the need for mercy under the
circumstances. Without this assurance, the least I among us,
and specifically those against whom the war on drugs and
overpolicing are aimed, suffer under a caste system. They are
required to watch from the cages in which they have been placed
as others, who have been incarcerated for the same acts, are
released.
During Clemency Project 2014, more than 36,000 applicants
for clemency appeared. Additionally, thousands of family
members called, emailed, sent postal mail, and personally
appeared in our office in hopes that their loved ones would be
lucky enough to be granted clemency. One mother called me every
week to pray for the release of those suffering under long
sentences. I was contacted by judges, probation officers,
defense lawyers, law professors, and some prosecutors who
sought to bring our attention to someone languishing in prison
with the hope for their release. The process was saturated with
desperation. Sadly, many of the petitions were denied while
many more remain unanswered, leaving thousands of petitioners
and interested parties wondering where is the justice? Where is
the fairness in the secretive deliberations on applications for
liberty?
How can we be assured of fairness and justice? The clemency
process must be completely independent of the system employed
to incarcerate the millions of people. An independent
commission should be established with representatives from all
stages of the criminal legal system, including those who were
formerly incarcerated, prosecutors, defense lawyers,
corrections experts, and members of the public.
Independence would ensure that one actor could not put a
thumb on the scales of justice, as is the case in our current
system where the very same officers in the Department of
Justice who prosecuted the case have the power. The commission
should have the necessary resources to review the inevitable
deluge of petitions from the masses. The commission would
promulgate clear and equitable criteria for release. Applicants
would have notice of the evidence necessary to successfully
submit a petition. Newly incarcerated persons would have an
incentive to immediately work to achieve rehabilitation, and
the general public would understand and believe that the system
is just and broadly available, and not reserved for privileged
few under a secret process.
Further, members of society would have faith that those who
return have been rehabilitated and are prepared to safely
reenter society, and society would be prepared to welcome them.
Paramount among the criteria would be the consideration of
anyone affected by the failure to retroactively apply
sentencing reform. If we, the people, determine that we are no
longer willing to incarcerate certain acts, then those who
commit those acts and are incarcerated should go free in order
for equal justice under the law to have meaning.
Categorical clemency could be granted, for example, to
those serving sentences subject to enhancements that no longer
apply. Additionally, those serving long sentences suffering
under a trial penalty, for exercising their constitutional
right to trial, and those political prisoners for the shameful
COINTELCO prosecutions. Also, there is a mechanism for
compassionate release, but it is underutilized. Clemency could
be used to clear this backlog.
It is my hope that you remove the scourge of mass
incarceration from our justice system--I would ask for just 2
more seconds. The scourge that informs one in three black boys
born today that they can expect to be incarcerated, the scourge
that prevents $80 billion from being spent on their education,
because it is being spent to incarcerate them.
When historians look back on us, and what we did during our
watch, let them record that we were enlightened. May they extol
the virtual of our quest for equal justice for all, and may
they marvel at the expediency with which it was achieved
through an independent, transparent, fair, and just process. I
am personally grateful to you for taking an interest in the
Nation's most urgent issues, for there is nothing more urgent
than freedom. Thank you.
[The statement of Ms. Roseberry follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you, Ms. Roseberry.
We are joined by one of the most distinguished members of
our committee, Mr. Ben Cline, an outstanding Congressman and a
good family man, I presume.
I now recognize the next witness as Mr. Mark Osler. Mr.
Osler is a Professor and Robert and Marion Short Distinguished
Chair in Law at the University of St. Thomas School of Law,
advocates for sentencing in clemency policies rooted in the
principle of human dignity, a former Federal prosecutor that
argued the case of Spear versus United States before the
Supreme Court, which held in that case that judges could
categorically reject the 100-to-1 mandatory ratio in crack and
powder cocaine sentences for Federal sentencing guidelines. In
2015, he co-founded with our fellow witness, Rachel Barkow, The
Clemency Resource Center, a 1-year, pop-up law firm that
prepared clemency petitions. Thank you for that, sir. He
received his J. D. From Yale and his B. A. From William and
Mary. minutes. Professor Osler, you are recognized for 5
minutes
STATEMENT OF MARK OSLER
Mr. Osler. Mr. Chairman, members of the committee, thank
you for this opportunity to be heard.
In the course of doing the work that you just mentioned,
Mr. Chairman, one of our clients was a man named Robert Shipp,
and you were kind enough to write a letter of support, twice,
in fact, on his behalf. One of the things you recognized in
that letter was the unfairness of Mr. Shipp's story, that he
was someone who turned to dealing drugs after the murder of his
brother. The murderer of his brother served a 10-year sentence.
Mr. Shipp was doing life for the nonviolent narcotics crime.
Unfortunately, he was denied clemency. But we know these
stories as all of us on this panel have gotten to do. We care
about the institution of clemency, and I want to spend a little
time talking about how that institution is framed right now.
The process to evaluate and make recommendations on
petitions to the President, I think of it as a pipe. Water goes
through the pipe, and there is seven valves, and each one of
those valves is spring-loaded to be shut. And somebody has to
turn each valve open as the water goes through. And those seven
valves are first, it is the staff of the pardon attorney,
second, it is the pardon attorney, staff at the Deputy Attorney
General, then the Deputy Attorney General, then the staff at
the White House Counsel, then the White House Counsel, and then
the President, and that is sequential.
It is a terrible system. No one in business would create a
decision mechanism like that. It grew up organically. It wasn't
intentional. No one thought about it very hard. It seems just
people wanted to review the cases that were coming through and
took that on.
What we saw was pretty telling under the Obama
administration. There, the President was deeply committed to
making clemency work. And there were people, Ms. Roseberry to
my right, who played a huge role in that program and worked
very hard, and what happened, much of it was due to her
efforts, and also to the efforts of advocates like Nkechi Taifa
who is here today, who advocated for clients, learned their
stories.
But in the end, even though Eric Holder, the Attorney
General, said we would get 10,000 people out, ended up with
1,700. 1,715. Don't get me wrong. It is a wonderful thing for
those people, but it is a tragedy about the people like Robert
Shipp, who did not receive clemency.
And one thing, too, about that, that is telling about this
process is that when things started to flow through that pipe,
when President Obama was able to get it to work at the end, the
Inspector General report on that project tells us that what
they did was skip the Deputy Attorney General. They bypassed
that valve, basically, for the noes which allowed the Deputy
Attorney General to focus on the yeses, and that was part of
what made it work.
I would like to return briefly to Robert Shipp. As I said,
he was denied clemency under President Obama, and I was floored
by that decision. He was imprisoned at Sandstone Prison in
Minnesota, about an hour north of where I live and teach, and I
felt compelled to drive up and tell him in person, and talk to
him about his denial, and I did that. And I sat in the cell,
the visiting attorney area. And that was a hard day. And on the
drive back, I determined that we had to come up with a system
that works, one that doesn't have that many valves that are
spring-loaded shut.
Mr. Johnson, you quoted Micah 6:8. As a pastor, that is
very meaningful to me. When I taught at Baylor Law School, I
walked into the school every day under those words. And you
know, the thing about that, as I think about it, and I have for
a long time, is that justice and mercy are intention if
``justice'' means we treat everyone the same, and ``mercy''
means that we give some people a break, that part of our
project is to resolve those two poles. And I think the answer,
in part, is the third part of that passage. It is humility,
that we have to humble ourselves to know those stories, to care
about them, to agree that mercy is good. We need the humility
to see the change in others, to know the limits of our
judgments, and to see the human dignity in all people,
including those who are incarcerated. Thank you.
[The statement of Mr. Osler follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you, Professor. Our next witness is Rachel
Barkow, Vice Dean and Segal Family Professor of Regulatory Law
and Policy and Faculty Director, Center on the Administration
of Criminal Law at NYU. She has taught at NYU since 2002, where
she teaches courses in criminal law, common law, and
administrative law.
From June 2013 to 2019 of January, she served as a member
of the U.S. Sentencing Commission. Among her various areas of
scholarly focus the role of mercy and criminal in the criminal
justice system. In 2015, she co-authored, together with Mr.
Osler, Professor Osler, a University of Chicago Law Review
article arguing for the independent clemency commission outside
the Department of Justice. She received her J.D. From Harvard,
magna cum laude. She served as editor of the Harvard Law
Review, B.A. with honors from Northwestern, served as law clerk
for the Honorable Lawrence Silverman of the U.S. Court of
Appeals for the D.C. circuit, and for the Honorable Anton
Scalia, Associate Justice of the Supreme Court of the United
States. Professor, you are recognized for 5 minutes.
STATEMENT OF RACHEL E. BARKOW
Ms. Barkow. Thank you very much, Mr. Chairman, Ranking
Member Johnson, and members of the subcommittee, thank you for
inviting me today to testify. There were two problems with
Federal clemency today. The first, and, by far, the biggest
concern, is that it is not being used enough. The second is
that of the few grants that are being given, a large proportion
have gone to presidential supporters and those with connections
to him. So, the good news is that Congress has the power to
address the more pressing concern of inadequate numbers of
clemency grants, and I urge you to do so.
Clemency, as you have heard many of us talk about, is a
critical avenue for achieving justice and proportional
sentencing in the Federal system because Congress abolished
parole in 1984, and that was previously the major avenue for
getting sentence reductions.
Pardons are also essential, because there is no other
mechanism at the Federal level for an individual to seek relief
from the collateral consequences of convictions. And now,
unfortunately, it is difficult to get either commutations or
pardons under the current application process, because the
Department of Justice, the same agency that brought the
prosecution in the first place, plays a gatekeeping role and it
is institutionally biased against clemency, because it is
reviewing its own prior decisions. So I don't think you need to
look any further than the output of DOJ'S process to see this
bias at play.
According to DOJ's own clemency statistics, there have been
more than 7,700 petitions filed since President Trump took
office, and only 24 grants. So that is a rate of 0.3 percent.
And this is part of a pattern of low grant rates in recent
decades, because of DOJ resistance to clemency.
During the administrations of Bill Clinton and George W.
Bush, the Department received more than 14,000 petitions for
commutations, but the Department only recommended that 13 of
them should be granted.
Now, President Obama had to create a designated initiative
with specific criteria to try to spark more positive
recommendations from the Department. And even with that effort,
he fell short of his goals precisely because it was
administered by DOJ. Only 3.4 percent of the people who met
President Obama's stated criteria received clemency, and
thousands were left behind.
And I do think the case of Alice Marie Johnson illustrates
the flaws with keeping DOJ as a gatekeeper. Johnson was a
first-time offender who got a life sentence for her role in a
drug trafficking conspiracy. She was a model prisoner, helped
others, accepted full responsibility for what she had done. And
after serving almost two decades, she asked President Obama for
clemency. But she was rejected without her application ever
reaching President Obama's desk. And that is because DOJ
thought her petition should be denied.
Now, she came to President Trump's attention not because
DOJ had a change of heart, but because her case got the
attention of Kim Kardashian, who then made a personal plea to
the President.
There are thousands of cases like Alice Marie Johnson out
there, but they are waiting in a line of 14,000 petitions,
where the end result is most likely going to be the Department
of Justice recommending no. So Congress can't force the
President to grant those petitions through clemency, but you
can create mechanisms of release that do a good job.
Congress can create second-look mechanisms such as parole
or an opportunity for resentencing by a judge, and that can
serve the same function as commutations. Congress can also help
prevent excessive sentencing from occurring in the first place,
by eliminating mandatory minimums and giving judges more
flexibility to have the facts fit the actual case before him or
her.
Additionally, Congress, when it recognizes that its
sentencing laws have gone too far, as it did with the First
Step Act, can, and I believe should, provide retroactive relief
for the people who were still serving sentences under the old
laws that Congress has recognized should be overturned.
Congress can also address the low rate of pardons by enacting
legislation that allows individuals to expunge Federal
convictions and restore their rights. And, again, reduce the
need for such relief in the first place by removing some of
those oppressive collateral consequences.
But, in addition to passing legislation along these lines
that could serve as a substitute for clemency, Congress can
also improve the operation of clemency itself, by providing the
necessary resources to enable the President to use the power
more effectively.
Several recent Presidents of both parties have indicated
frustration with clemency being run out of the Department of
Justice, as have some of the candidates who are currently
running for President, and they want to switch to a model that
relies on an advisory board that exists outside of DOJ. And
President Trump appears to be transitioning to such a model as
well. Congress can and should provide funding to support this
change so that this board has the resources it needs to do the
job effectively.
The one thing that Congress can't do is tell the President
how to exercise the clemency power, which is why solving the
second problem of grants given to supporters, or cronies, isn't
subject to a legislative fix. The main mechanism for checking a
President who does that, who gives grants and/or exercises the
discretion in ways that people might find disserving, is to
elect a new President with better judgment and better values.
So thank you, again, for allowing me to testify and share
my thoughts on clemency. And I would be happy to answer any
questions that you have.
[The statement of Ms. Barkow follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you very much. We are now in the period
where we ask questions of 5 minutes of each. And I will start
with my 5-minute period.
And, first, I want you to reiterate, Professor Barkow, the
suggestions you had. Because the reality is, we can do
oversight. And that is part of what this hearing is about is
oversight. But we can't stop or change the President's pardon
power, unless he tries to pardon himself, and that would go to
court. What were your suggestions of legislation that could
serve the same purposes?
Ms. Barkow. Thank you for the opportunity to talk about
them further. So, I think on the--so commutations reduce
sentences that are excessive. That is the Presidential power.
So you could create other mechanisms that do the same thing,
just not with the President.
So we used to have parole in our system, and that was the
main mechanism by which people got sentencing reductions. If
you look at the charts on when clemency starts to fall
initially, it is when we have the advent of parole. So bringing
some form of parole back, or a second look by a judge that
allow you----
Mr. Cohen. When was parole eliminated?
Ms. Barkow. 1984's legislation eliminated it. So anyone
sentenced after November 1st, 1987, in the Federal system
cannot get parole.
Chairman Nadler. Excuse me, chairman, may I have moment?
Mr. Cohen. Yes.
Chairman Nadler. When you are referring to the parole
elimination, you are referring to the institution of
determinative sentencing, right?
Ms. Barkow. Correct. It was part of the Sentencing Reform
Act package of eliminating parole and creating a sentencing
commission. And people testified before Congress at that time
saying, now that you have eliminated parole, it is going to put
a lot of weight on clemency. Because we need to have an avenue
for commutations. And that turned out to be particularly true
because there were so many new mandatory minimums that came
into play at the same time, and then continued to come.
So you have this, lots of disproportionate sentences that
were mandatory, that the judge had no power to do otherwise,
and no back-end mechanism to correct them. So reinstituting
some form of parole or a second look by a judge after a period
of time could do the same thing as a commutation. It would just
be giving it to a different actor in the system.
Mr. Cohen. Do you know if that was discussed as part of the
First Step Act?
Ms. Barkow. I do know there is legislation that is being
considered that others may know more about--the second look,
which would allow for more back-end review. And I also know
that the part of the First Step Act that allows people to earn
credits as opposed to good-time credits, participate in
programming and be eligible for some reductions, you know, that
is one other way that was supposed to expand the opportunity.
And then also, removing the requirement that DOJ had to file
your petition for compassionate release. You know, that also
opened up one other opportunity. But that is for people who
have terminal illnesses and the like. For your kind of core
group of folks who have excessively long sentences, I do think
there needs to be more opportunities for them. And I do think
having a second look in the system would do it. And it would
take some of the pressure off the President.
Mr. Cohen. Are there limits to the Compassionate Release
Act, as far as number of years somebody would have had to have
served?
Ms. Barkow. No, you can--a person can file their petition
now directly with a judge. You know, can ask obviously to go
through the Bureau of Prisons process, but does have the
ability now to file with a judge and explain why they merit
compassionate release.
So, for example, if they have a terminal illness, if they
are a caregiver for a child, they are the only caregiver that
is left that could take care of a family member, because you
know someone has passed away and the like. I do know that
people are filing petitions for extraordinary sentencing relief
under that provision, arguing that they can do it in the case--
--
Mr. Cohen. Do you have any recommendations of changes in
the compassionate release to make it more effective?
Ms. Barkow. I do think it should be explicitly made
available to people who are serving excessively long sentences
and can demonstrate good behavior while they have been
incarcerated. I think that is something that could be more
explicitly made clear, because right now, the folks who are
trying to do that, you know, it will remain a question whether
judges will accept those petitions.
Mr. Cohen. How do you know that? Are you suggesting putting
out a public paper to the prisoners?
Ms. Barkow. Well, I think that--so there could be
legislative changes that may clear who is eligible and who
Congress has in mind should be asking for sentencing relief. I
do think--and I will let some of the other advocates who work
there more directly with people who are currently
incarcerated--I do think word gets around about what
opportunities are available in terms of opportunities, but not
everybody has access to counsel to help them and the resources
they need to----
Mr. Cohen. Ms. Roseberry, do you have any suggestions on
things we can do legislatively to improve people's
opportunities to get their freedom?
Ms. Roseberry. Yes, sir. Thank you for that question. I
agree that the Second Chance Act, passing the Second Chance Act
will be helpful to give folks a second look. We recommended
that on the Culson task force. Of course, getting rid of
mandatory minimums stops the process on the first end. Fully
funding the First Step Act so that people can avail themselves
of that. I think as of July of 2019, only about 3,000 people
have been able to be released through that Act. There needs to
be programming so that people can come out.
I would just also add that if we are concerned about
safety, that we they about the fact that if prisons are
overcrowded, then the folks who work in corrections are unsafe
as well. That is one of the things that we found in the Culson
task force. So there is a need for mercy for them as well to
have folks come out.
Mr. Cohen. Thank you. I recognize Mr. Johnson for 5
minutes.
Mr. Johnson. Thank you, Mr. Chairman. And thank you all for
your thoughtful comments and contributions. And there is a lot
of competing events going on in the Hill right now. You know
how this works. The record of this is very important. And your
writings are important.
What you said just a moment ago is exactly right. We hear
from those who work within the prisons about the underfunding
crisis, really, that they have. So they have jeopardized the
safety of those who are in charge in these facilities. Because
that is a whole other issue.
Professor Osler, I really appreciated your frank discussion
and our mutual reference to Micah 6:8, in how there is this
tension between acting justly and love and mercy, and how it is
resolved really with that third phrase of humility. And that is
a lot to unpack, and something we ought to consider.
But can you describe, just real quickly, why you think
clemency grants can be consistent with public safety? Because I
think there is a lot of misconception out there about that.
Mr. Osler. Yes, thank you. Thank you for that question. And
yes, absolutely. One thing that clemency allows for is the
capacity for people to change. That someone who at 18, 19, 20,
was committing a felony, even a violent felony, is going to be
very different later in their life. And clemency gives us the
opportunity to hold them accountable, to monitor that change,
and to recognize it, and to free them what they are ready to be
a productive member of society. And that is something that
clemency is especially well-suited for is considering those
individual circumstances.
One thing that doesn't work so well right now is that
mostly we reach back for advice to the people who are involved
at the time of the criminality--back to the prosecutor, back to
the sentencing judge. It is always appropriate to go back to
the victim and include them. Although in Federal crimes, very
often, there is not a victim.
But I think we need, as well, to reach out to those who
currently know that person as they are incarcerated. Too often,
we think of people who are incarcerated as their life ended
when the prison door closed. But they do have a life going
forward, as many of us on that panel know very well. And the
people who. know them in the prison who work with them are able
to give us a good view of what they are now.
Mr. Johnson. So you are talking about people--the employees
within the prison. I mean those who are charged with guarding
the inmates, so to speak?
Mr. Osler. It will be corrections officers; it will be
wardens; but it will also be people who provide educational
opportunities, who do ministry within the prison as well.
Mr. Johnson. So one of the concerns, of course, is about
the risk associated with early release. There is always
exceptions: Someone gets out who shouldn't. Mistakes are made.
How do you--how can we reduce those risks?
Mr. Osler. I think one thing that we can do to reduce those
risks is to do a better job of tracking the success of the
commutations that have already been granted. That is one
problem with the system that we have, is that there is no one
who is in charge of data collection and analysis. That is
something that Professor Barkow has done a lot of work on. That
if we had a clemency board, one that was able to perform these
other functions, and also be able to track recidivism by people
who had received commutations and be able to give us a better
idea of who is successful and who is not.
Mr. Johnson. We heard a lot this morning, several
references to Alice Marie Johnson's case--and I am not an
expert in the background of it. But can you summarize why it
took so long for her to receive clemency? Are there lessons to
be learned there?
Mr. Osler. There are certainly lessons to be learned, and
one of them is about transparency. That is the thing about
Alice Marie Johnson being denied those three times is that we
don't really know why. That we don't have a sense of that
process. Which for those of us that are lawyers, it is very
frustrating. Where you used to be able to have a back and
forth, and that is not a part of this process.
And so, I think one of the takeaways is that we don't know,
and that is wrong. Because that way we don't know how to
advocate for people going forward. We don't know what to avoid,
what kind of cases are--shouldn't be taken forward. The other
thing is that although we don't know this, I think many people
believe that there was resistance from the DOJ in granting her
petition. And, again, that goes back to the problems that many
of us have already talked about in reference to clemency as it
works today.
Mr. Johnson. And that would have been the DOJ under perhaps
several previous administrations, right?
Mr. Osler. Yeah, that is correct. And this is something
that, again, Professor Barkow and I wrote an article about
this, about the role of the DOJ. And the one thing that is
remarkable is it is pretty consistent across administration's
resistance to reform and correcting problems that we find from
that department.
Mr. Johnson. Because no one wants to be perceived as soft
on crime, right?
Mr. Osler. That is correct. And also the people who make
the decisions and work on policy--for example, the deputy
attorney general, in this circumstance, that is who the U.S.
attorneys report directly to. And they have to maintain a good
relationship with those people, and they avoid making decisions
that would imperil that relationship.
Mr. Johnson. Thank you. I yield back.
Mr. Cohen. Thank you, Mr. Johnson. Mr. Nadler.
Chairman Nadler. Thank you, Mr. Chairman. The witnesses
have referred to a number of things that we have dealt with in
the last few years, mistakes that were made by Congress back in
1986, instituting determinative sentencing. The war on drugs
was a terrible mistake. I don't know if you have referred to
it, but the Crime Bill of 1994, which is a terrible mistake,
all of which led to mass incarceration. We have tried--I should
tell you, because someone raised this--that we tried to get
interactive application, new sentencing guidelines into the
First Step Act last year, or 2 years ago. So these are issues
that we have been dealing with.
My problem, and I--before all of this stuff, I was
successful in getting someone a pardon the same day that you
had, the last day of the Clinton administration. A 22-year-old
woman who had been sentenced to 68 years in jail and served, at
that point, 19 or 20 years, and it was--it was a terrible
miscarriage of justice. But it would not have been solved if I,
as a Congressman, did not happen to hear about it. And I was
able to work for 3 or 4 years and got it done.
Now, undoubtedly, you know of Ms. Smith Pradia's case, we
know about the Marie Johnson case, there are undoubtedly
thousands of cases we don't know about. And, yes, the advisory
committee that was set up to advise the President is probably
prejudiced because it has got the Department of Justice in it.
We should take the Department of Justice out of it and set it
up more independently. But how do you guarantee, how could we
institutionally improve the likelihood that a President, any
President, President Smith who gets elected next year, is going
to exercise better judgment, going to grant more pardons, more
commutations? What can we, as an institution, do to--aside from
hope that the next President is a good guy and has good
judgment and so forth, what can we do as an institution to
maximize the odds that the pardon power would be used decently?
Mr. Osler. I have a couple of thoughts on that, though, I
will put forward quickly. And one is that encouraging a process
that creates regularity of consideration is something where
right now, Presidents for the, you know, past two decades,
three decades, clemency comes up when it comes up. There is no
regular meeting with someone who is making those advisory
decisions.
The second thing is that we don't talk about it during
elections. That we don't--the answer to clemency problems is
politics. And yet, we are in the middle of a Presidential
election season, and during the Democratic primaries, nobody
talks about clemency. I think Amy Klobuchar did once. Where
does Joe Biden, for example, stand on clemency? I don't know.
But we need to ask that question when we can, when it matters.
Chairman Nadler. And the odds are he doesn't know because
he probably hasn't thought about it like anybody else.
Mr. Osler. Right. And we need to make him think about it.
And you all have a platform to do that. And I hope that you
will use that political platform to press our political
leaders, be they Democratic or Republican, to articulate,
before they take office what it is that they would do with
clemency.
Ms. Pradia. And I would like to add that with my particular
situation, the Department of Justice did not want me to be
released. And the attorneys from LDF didn't want me to even
speak publicly, because they knew that the Department of
Justice was upset, I was on probation for 5 years, they were
worried about my probation officer violating me.
But I do want to highlight that I do believe the Department
of Justice needs to be eliminated from the process. And
recently there was a Virginia Supreme Court judge that told me,
the government should not be concerned with being right.
Instead, it should be concerned with making sure justice has
been served.
And, you know, this was part of my statement. I thank God
that President Clinton didn't adhere to the Department of
Justice's opinion that I needed to serve my full sentence.
There was a President that felt as if justice had been served.
There are many others like me who are waiting on their
opportunity to live life that would overshadow who they used to
be if given the opportunity. Like Alice Johnson and I, they
would be an asset to our great Nation. And I apologize for
going over earlier as well. Thank you.
Chairman Nadler. I yield back.
Mr. Cohen. We are going to recognize Mr. Armstrong for 5
minutes. And then, I think, we should probably break for votes,
and then we will come--then we will come back.
Mr. Armstrong. Could you do Mr. Reschenthaler first?
Mr. Cohen. I am just taking instructions from the
Republicans, whoever you all want to yield.
All right. Mr. Reschenthaler, you are on.
Mr. Reschenthaler. Thank you, Mr. Chairman. And I yield my
good friend from North Dakota.
Mr. Armstrong. Thank you. One thing we can do--let's be
honest. The biggest problem with clemency isn't that it is an
inefficient system, because it has been an inefficient system
regardless of who the government is. The biggest problem with
clemency is that we have too many people that need it. This
started a long time ago. And you can go to Richard Nixon and
the war on drugs. You can go to the sentencing guidelines and
the enhancement for crack cocaine, which absolutely,
disproportionately, affected African Americans in cities. You
can go to States like mine who end up in Federal court off of
Native American reservations in an incredibly period of time.
So what do we do? We try to retroactively apply sentencing
guideline reform again. That is how you do it. Because you
diffuse it between 535 Members of Congress instead of one
person sitting in the executive branch. Because nobody has ever
lost an election being tough on crime.
And instead of having hearings where we are taking pot
shots at the ranking member of the committee and instead of
taking pot shots at the ranking member of the full committee,
we should have hearings like this every single day of the week.
We should be talking about it. And the reason I know this is
because I have done it.
You didn't have to worry about minimum mandatory sentences.
You blew so far past the minimum mandatory sentence because you
had a boyfriend who was dealing drugs. And I assuming
somewhere, somewhere along the line in that conspiracy,
somebody had a gun, so they made it violent. Which comes back
when you look at this. One of the first things we can do--and I
know U.S. attorneys are great people. I supported the last
Democratic U.S. appointee in North Dakota, and I supported the
last two Republican ones. But I don't think anybody ever
intended prosecutors to be able to determine sentences, and
that is what happened, because how they charge something, how
we draconianly enhance drug weights in historical
methamphetamine or drug conspiracies without ever having a drug
in the courtroom, how we put those drugs on a low-level member
of that conspiracy, because they are using minors amounts of
drugs to feed their addiction, and we treat them just like the
leader of a drug cartel, that is how we end up in this
situation.
We did sentencing--Federal sentencing guideline reform.
Have we checked to see what States that have mirrored their
sentencing guidelines are starting to reform theirs as well?
Minnesota is a neighboring state. I used to practice law in
Minnesota. If anybody thinks Minnesota is a liberal State, you
get convicted of a crime there.
After the first step back, their state sentencing
guidelines are worse than the Federal ones. Do we know if they
are--do they know if they are taking it forward? And there are
States that are doing this. Texas has done criminal justice
reform. North Dakota has done criminal justice reform. How are
we providing services? Why aren't we not utilizing--the one
thing the Federal Government does really, really well is a
pretrial release program. It is actually one of the greatest
ironies in anything. It is nonconfrontational.
They get you into life choices. They get you into addiction
treatment. They do all of those things. Then you show up at
court and you get a 10-year minimum mandatory sentence. I don't
know how good your pretrial release program is. If you are
going to prison for 8.5 years, you are not really going to
remember anything about it.
So instead of pointing fingers at the executive branch when
we are doing this, how do we solve it? This is hard, hard, hard
work. And the reason it is hard work is if you make 1,000 right
decisions and one wrong decision and that happens to be in your
district, you are going to penalized politically for it, every
one of us. We run every 2 years.
So, you have to stand up and be counted, and you have to do
it. And you have to do it in a way that actually effectuates
change. Are there ways to do it. One, you go back and you
concentrate on nonviolent crimes. But you define nonviolent
crimes not in how they were prosecuted in 1998, you look at
them. If there was a gun associated in a drug conspiracy, but
it was associated 17 levels, 17 levels removed from that
particular sentence, that is not a violent crime. It is simply
not.
And so, instead of sitting here and blaming people and
doing those--and I am supporting clemency. I am on the letters
for clemency. I will advocate for people all the time. But
let's recognize the fundamental problem. The fundamental
problem is we started down this path 48 to 50 years ago, and
have allowed it to snowball ever since.
And let's also recognize that regardless of how anybody
feels about anybody, the single biggest piece of criminal
justice reform that has ever come out of Washington, D.C. was
the First Step Act. But that is only the first step. And then
we should also recognize the fact that the vast 95 percent of
this happens at the local and state level. County jails are
full of people serving pretrial.
So let's utilize technology. Let's invest in those things.
Let's do GPS tracking. Let's do SCRAM bracelets. Let's work at
those things. Because the vast majority of people, whoever get
sentenced in the Federal court system, it ain't their first
trip to the rodeo. They have been in misdemeanor cases. They
have been in county jail. They have been in State jail. They
have been through all of these things. So let's utilize the
resources to attack this before they get it.
Then, finally, we need to start addressing the fact that we
are felonizing nonviolent drug offenders from the age of 18 to
22. Because you talk about collateral consequences, but here is
what I can tell you: If you have one felony, the chances of you
having another one go up exponentially, because we have created
perverse incentives for every government program we have to
avoid felons like the plague. So if we want to deal with this,
we can deal with it. But I don't think throwing political pot
shots at each other is the right way. And with that, I yield
back.
Mr. Cohen. Thank you. With the exception of the suggestions
of political pot shots, Mr. Armstrong did a splendid job. We
will now recess until after the votes.
[Recess.]
Mr. Cohen. We are back, and Mr. Raskin will be first to ask
questions. It is 5 minutes, and he is recognized.
Mr. Raskin. Thank you very much, Mr. Chairman. Let's see, I
see Ms. Smith is not with us. Is she coming back?
Mr. Cohen. No, she has left the building.
Mr. Raskin. Oh, okay. All right. So Ms. Roseberry, let me
start with you. Thank you very much for your excellent
testimony.
Do we need some kind of structural change in the way that
pardons are being issued? And let me ask you this specifically,
is there a problem in the pardon attorney's office, or is it
just that the President is disregarding the pardon attorney's
office?
Ms. Roseberry. Sir, you are asking--thank you for your
question. You are, of course, asking a lifelong criminal
defense lawyer. There is a problem in the pardon attorney's
office. The culture there, of course, is one of prosecution.
And so, when you have a system that looks back to the same
system that created the problem to solve the problem without
interjecting anything independent, you have the same problem.
Mr. Raskin. So the President is the one under Article II is
given the power to render pardons. And so, certainly in this
administration, probably in any administration, they are going
to view it as an executive function. Do you think that we
should set up an advisory congressional panel on pardons that
is bipartisan in nature that operates like the Joint Economic
Committee or the House Ethics Committee?
Ms. Roseberry. Absolutely. You have that oversight power.
And to be guided by independent and transparent objectives
would be much better than having it lie in the agency that did
it. And in Maryland, when Governor Ehrlich pardoned so many
people between 2003 and 2009----
Mr. Raskin. Yeah.
Ms. Roseberry [continuing]. It was a seamless process that
pulled on many experts in the field. And that is what I would
suggest for our Federal system.
Mr. Raskin. Professor Barkow, let me ask you: Do you agree
it would make sense for us to set up some kind of independent
advisory congressional commission that would look at big cases
and bring them to the attention of the President?
Ms. Barkow. I don't think that is actually the solution
that this problem needs. I think that creating a review by
another political body, I think, is going to face some of those
same political pressures about being risk averse to
recommending grants for cases. It think it would be hard for a
body set up in Congress to do that.
There is actually some--there is a need to have people who
really understand our prison systems, who really understand
programming in prisons, people who have themselves been
incarcerated, people like that on an advisory body, I think,
can do a lot more helpful and productive good. So I think it
would be--a better alternative, in my view, would be for
Congress to fund an advisory board that is bipartisan, but is
not made up of congressional representatives, but it is
actually made up of people in the field that really would
understand what they are reviewing when they review
commutations and pardons. So people who understand the
difficulties with reentry, people who would understand
sentencing.
And, so, I think it would be a question of Congress
providing funding for something like that. But I do think it
has to be cooperative with the President. Because the President
doesn't need to take advice from any outside body. And to keep
it constitutional, I do think it would have to be something
that the President wants to do that Congress funds.
Just as an example of that, I would say when President
Obama wanted to use the office of the pardon attorney for his
initiative and wanted kind of additional funding for his
process, my understanding is that funding was denied by
Congress, and it was one of the setbacks in getting more
grants. And so I think more productive type thing for Congress
to do is to make sure that the President has funding when, you
know, he or she wants to really up the ante.
Mr. Raskin. Professor Osler, do you agree with that, and do
you think that this is something we should do before the end of
this Congress?
Mr. Osler. I agree with Professor Barkow. I think that it
is for the executive to form, that an advisory body, that
certainly, there would be input from Congress informing that in
terms of the dialogue that you have regularly on a number of
executive decisions. The way that we are going to fix this
process is going to be collaborative, and it is going to have
to be.
Now, that said, one thing that Professor Barkow mentioned
that I think is really important is about the funding, that one
of the reasons we didn't get an administrative body under the
Obama administration is because they didn't believe they could
get the funding for that, much less fund the pardon of office
appropriately.
Mr. Raskin. And do you think there is anything that can be
done with this President? I mean, he is definitely drawn to
luminaries and celebrities in cases like that. I almost thought
we should have a TV show called, You Are Pardoned, where people
can get up and make their case. Is there some way to enlarge
his pool of applicants that are coming to him to get beyond
just Kim Kardashian? Or should she be the pardon attorney?
Mr. Osler. Well, I would say that I think there is
encouraging signs that the President is moving in that
direction to broadening the pool. And we have to encourage
that. I think that, again, this is something where the control
on the pardon is politics. And in terms of being critical of
particular pardons, that is something that is going to happen,
and it should happen going both ways. Having that dialogue--and
that kind of a TV show, I would watch it.
Mr. Raskin. All right. I would yield back, Mr. Chairman.
Thank you.
Mr. Cohen. Ms. Scanlon.
Ms. Scanlon. Thank you very much. First, I would like to
ask unanimous consent to introduce the U.S. Department of
Justice statistics on clemency and pardons, going all the way
back to William McKinley. So we have a factual basis to talk
about how many petitions have been submitted, and how they have
been dealt with.
Thank you. So in looking at those, I noted that under the
Obama administration, over 36,000 clemency and pardon petitions
were submitted, which is more than four times any prior
administration. And, in fact, more pardons--more clemency
petitions were granted than under prior administrations. And I
am familiar with that because I have worked with that project,
the Clemency 2014 Project, in my last job.
As I understand it, that program was started largely in the
face of congressional inaction to address mass incarceration,
and the inhumane and expensive results of the mandatory
sentencing laws that this body passed. So Clemency 2014 invited
clemency petitions from Federal prisoners who had served
substantial sentences for low-level nonviolent crimes. And my
former law firm worked with Ms. Roseberry and, indeed, I think
just about everyone at this table, to recruit and train
volunteer attorneys to screen applicants for clemency, and then
represent them for free. Because there were no resources
available to screen these applicants or to represent them.
So, I came away with a few takes on this whole process. The
first was the toll of excessive sentencing. The human toll of
excessive sentencing. We heard from Ms. Smith before, I think,
about the impact on her life. I would also suggest that people
look at the documentary movie, The Sentence, which tells the
story of one of my firm's clients and what happened to her and
her family as a result of really unnecessary sentencing.
The second thing I came away with was the need for
resources to assist the people who are in jail. Because, in
addition to the 29 people for whom we were able to receive
Presidential clemency, we also found a number of clients who
were entitled to relief, but had been unable to get it because
they lacked legal representation. So, you know, the ongoing
issue of making sure that people have actual access to justice.
And then the third piece is, okay, where are we now? What
can we do to try to get out of the situation? Obviously not
imposing a lot of new mandatory sentences that, you know, don't
really move the ball forward in terms of criminal justice
reform.
I was interested in hearing a little bit more about the
Second Look Act, and if you can tell me kind of how that would
work? I am not sure who is most familiar.
Ms. Barkow. I am happy to start, and then Cynthia can jump
in. There is proposed legislation that would allow people,
after a certain length of time, to go back in for a
resentencing. And I can't recall if it is 10 or 15 years. But
the idea is you would have a second chance to go back before a
judge for a resentencing at that point. And certainly, there
are other models that are like that, that the American Law
Institute had suggested that jurisdictions have that kind of
lookback after a certain period of time that would allow judges
to do it.
And I will just say that you are absolutely right in terms
of clemency was trying to fill a need that was actually just an
inadequacy in other spaces. And First Step Act retroactivity,
for example, really helped to address some of those petitions,
allowing there to be retroactivity for people with the crack
powder reduction. But it really should just be the general rule
that when Congress makes any legislative changes to sentences
that are lower, it should automatically be eligible for
retroactive relief. I would really encourage that as a
mechanism to deal with this backlog. That would probably be one
of the best things that you could do. All it would mean, it
would give people an opportunity to petition for that
retroactive relief.
And judges do a very good job at that. I will just tell
you, if you are worried about public safety, the sentencing
commission has the authority to make its guidelines
retroactive, and had done so in 2007 for crack reductions, and
was able to follow the people that got the reductions 5 years
later. And the people that got the early release did not
recidivate any higher than the people served their full
sentence.
And so, I think you can be quite confident that retroactive
adjustments will be exercised wisely. And it is really one of
the best things I think that you could do to deal with the
backlog.
Mr. Osler. I agree. I support Second Look. One thing to be
conscious of, though, is that that can't represent place
clemency, and it can't supplant it. And one of the reasons that
we have seen this with First Step is that if there is a judge
out there who gives a harsh sentence, rescinding that same case
back to the same judge and saying, now review it, and that
then--and of course there are more likely to deny the second
look. Whereas the judge that is easier on the sentence is also
easier on the second look. And that enhances disparities. We
have to be very careful about that. And that is one reason that
we are always going to need clemency as a backup to these
things because those disparities are going to persist.
Ms. Roseberry. And I would like to add we are soon to
schedule a briefing on the second look that would be able to
members who would like to learn more about it as well.
Ms. Scanlon. Thank you. And I see my time has expired.
Thank you all.
Mr. Cohen. Thank you. You are recognized for 5 minutes.
Ms. Dean. I am Madeleine Dean from Pennsylvania, and I, in
anticipating this hearing, I was thinking over and over in my
head of words that I used to teach. I was a professor at La
Salle University for 10 years, a professor of writing. And we
would look at the question of justice and mercy. And one of my
favorite all-time speeches on the question of mercy, of course,
is the woman attorney, Portia, from the Merchant of Venice.
And so while we got the Bible in here, I wanted to make
sure we got a little Shakespeare in here to frame this picture.
Because we are talking not just justice, but mercy, and as some
of you said, grace. As Portia argued, the quality of mercy is
not strained. It droppeth as the gentle rain upon the place
beneath. It is twice blest. It blesseth him that gives and him
that takes. It is mightiest in the mightiest. It becomes the
throne a monarch better than his crown. And earthly power doth
then show likest God's when mercy seasons justice.
I love that thought--when mercy seasons justice. I am not
so interested in the monarch or throned crown, but it is a
warning to us all. That when we remember to look beyond just
justice, to look to that next higher level, and season whatever
we do.
And so, as I approached this hearing, I thought of that.
And I thought of women I visited Muncy Prison in Pennsylvania,
an all-women's prison. Many women that I met with are lifers.
And so, the issue of pardon of clemency is on my mind. And
you have given us many suggestions. Obviously, within the
constitutional pardon power, it is so broad. We don't know or
how we can influence directly this President or any others in
the future. How can I make a difference for folks who are
sitting in State prisons, like the women at Muncy, in terms of
pushing toward greater clemency?
Ms. Roseberry. Thank you for that question. And I have seen
the lady lifers. I know they sing. I wept when I saw them sing.
I think what you did is the first thing that we must do, and
that is to get proximate to the people who are suffering under
these sentences. As long as we can continue to quote numbers
around them and about them, we don't know who they are.
Kemba made a lasting impression on us all. So once we get
proximate to them, we can lift their stories and their voices
up to support categorical approaches like the lady lifers. I
know one was recently pardoned in Pennsylvania. That is a
category of people who don't need to be in prison. And we can
go back to our States and say we want to look at our system to
save money to give grace.
I, often, when I tried a case, would say to a judge, it is
really easy to give mercy to someone you like. The more
difficult way to do it is someone who has done something you
don't like, or with which you don't agree. The statistics show
that people who commit violent acts have a lower probability of
recidivism.
So I would also like to include not just the people we like
and who make us weep from sympathy, but those who have been
rehabilitated because of a severely long sentence.
Mr. Osler. And Ms. Dean, if I could, the quote from
Shakespeare isn't irrelevant. It is striking that the Framers
of the Constitution lived at a time that Shakespeare was
revered. During the Constitutional Convention, George
Washington went to see The Tempest, which has similar themes.
Jefferson saw the Merchant of Venice twice. Jefferson and
Adams, together, as rivals went to Stratford-Upon-Avon. So this
is part of what influenced them, directly, as they chose to put
the pardon power in the Constitution.
Ms. Dean. Thank you for telling me that. Thank you. My next
thought is, and you have given us some indication of it.
And I was thinking, Professor Barkow, in your written
testimony, you highlighted the differences, sort of general
differences that struck me from H. W. Bush administration, and
to the Obama administration, and petitions that were granted at
least in the single digits. Yet, from the Nixon to Carter
administrations, the grant was in the double digits, varying
from 36 to 21 percent. In fact, you wrote that the grant rate
between 1892 and 1930 was 27 percent.
So for those who think pardon is so rare, and it happens
only when you get a Kim Kardashian, or you get on Fox News, and
that is just the way the system works historically, it wasn't
that way. Can you identify some of the differences and how we
could go back to higher pardon rates?
Ms. Barkow. Yeah, I think we should think of it as a normal
part of our operation of justice, because mistakes were a
system that fails. And we need to also recognize that people
change over time, and circumstances change over time. And
clemency is there to correct for those failings, and also
recognize the change in people. And we used to do that, and we
used to do it regularly. And I think the switch was really the
kind of Willie Horton-style politics that scared politicians
away from using the courage to show people mercy.
And I do think another part of that problem was giving more
authority to within the Department of Justice, the Office of
the Deputy Attorney General, really kind of taking over the
clemency process and being more inclined to say no.
So I think we can make an institutional change, but a big
part of it is also just rethinking the politics surrounding
these issues, and to vocally support giving people clemency. I
think it is somewhat of the things you do for the people who
are incarcerated with life sentences. The more politicians who
speak out on these issues, I think the better.
Ms. Dean. Thank you, Mr. Chairman, I yield back.
Mr. Cohen. Thank you, Ms. Dean.
Mr. Armstrong, I presume you are here to engage in some
discussion.
Mr. Armstrong. I am, Mr. Chairman. Thank you.
Mr. Cohen. You are recognized for 5 minutes of cogent and
interesting and pithy analysis.
Mr. Armstrong. Perfect. I think we have people at the table
that understand a lot of this stuff really well. So I will end
my rant and come back to asking some questions. And I think the
first one I would start with is when we talk about dealing with
clemency and things we can do--I think too often we make binary
choices. We talked earlier about retroactive application of
those types of things. But are there ways where if we pass
something like sentencing guideline reform, that we can work
that into a presumption of existing cases? Because they are
moving forward and looking back. And if we get into an all-or-
nothing situation, we always run into a situation where we may
get nothing.
Just to get some structure, as an example, anybody who had
a nonviolent drug crime with a sentencing guideline above X and
we change that law, I mean, in order to put it into the system
with a presumption towards it? Does that make sense?
Ms. Barkow. I think if you are asking, if I am
understanding correctly, Congress has given directives to the
sentencing commission in the past. But almost every directive
Congress has ever given the sentencing commission is to
increase sentences. But you have the power to give directives
to lower sentences. So if the question is, could, should it be
appropriate to give directives to lower sentences, I would say
absolutely. And I think that, and also fixing mandatory
minimums. Because you see both of those as kind of inputs that
creates these problems are the mandatory minimums. And then,
you could have excessive guideline cases.
Mr. Armstrong. Well, I appreciate that, because I think one
of the things you see on minimum mandatory sentences is where
they fall under the guidelines. One of the things the First
Step Act did that, I think, is hopefully going to show a lot of
long-term results, is how we allowed for the safety valve. And,
I mean, getting a Class B misdemeanor deferred imposition of
sentence when you were 18 years old for having a joint used to
be where you wouldn't qualify for the safety valve anymore and
how we are dealing with those issues.
I mean--and then so I am going to just switch a little bit.
When we are dealing with this moving forward, and not so much
in the clemency area, what are some things we can do to work
towards either, A--because it is usually the minor people in
these cases. And there are just so many perverse incentives for
somebody with a decent case to not go to trial--whether it is a
5Kl substantial cooperation or qualifying for a safety valve.
Are there ways we can appropriate those things so they can
actually be utilized, and also work towards people's ability to
go to trial?
Mr. Osler. I am sure Professor Barkow will have comments on
that. But just briefly, I would say that a couple things to
look at relating to that would be the conspiracy law, and the
way that conspiracy built on top of the way we used the weight
of narcotics is the proxy for culpability. It leads to the
problems with a lot of the cases that I as a Federal prosecutor
and you as a Federal prosecutor saw.
Mr. Armstrong. Well, I was a defense attorney. I was on the
side of righteousness and goodness.
Mr. Osler. But you saw the same thing, though.
Mr. Armstrong. We did.
Mr. Osler. But that is one thing. Also, you know, insofar
as there are other laws that we have in the Federal system, the
bootstrap accomplished liability into sentencing. We need to
review those, and that is something that would really use the
attention of this body.
Mr. Armstrong. And before I--go ahead, ma'am.
Ms. Roseberry. I would also add, looking at the trial
penalty that is often put on a person who exercises their
constitutional right to a trial and doesn't accept the plea
agreement, we need more transparency around plea agreements,
and how and whether they are offered and to whom so that we
will know how people are choosing and/or being coerced into
taking pleas.
Mr. Armstrong. I have seen that just on the ground. It is
not that necessarily sometimes don't want to take
responsibility for their actions. They just don't think their
actions quite correlate with 375 pounds of methamphetamine,
because of what you were talking about, about the total weight
of the process.
So, again, that is not always binary. Yes. Am I guilty of
something? No. Should I be going to prison for 37 years? I
mean, so having the ability to do some of that post sentencing,
which would back to my point of, you know, we--we have done an
okay job of making guidelines discretionary instead of
mandatory. But I still stand by the--if we are appointing
Federal judges for life, we need to give them a little more
control over their courtrooms. And that could work into a
clemency scenario as well.
Ms. Barkow. Could I just add that if you wanted to address
the plea-bargaining issue, one of the directives, for example,
you could have is that you would allow defendants to challenge
relevant conduct and it would not count against acceptance of
responsibility. It is a kind of precise way to deal with the
problem that you are talking about. Because right now, the
Department frequently tells people that you cannot get
acceptance of responsibility if you are going to challenge
relevant conduct on appeal. That makes a big difference, and it
creates all kinds of issues with whether or not people can
challenge things later.
So do I think that--I mean, that is the kind of more
micromanaging things that happen over at the commission. But
Congress has done that a lot over the years, but always in the
direction of severity. And so I do think it wouldn't be
inappropriate to do it in the other direction, and also to
emphasize you want more role adjustments.
Mr. Armstrong. Thank you. And thank you all for being here.
Mr. Cohen. Thank you, Mr. Armstrong.
Mr. Cohen. Does anybody have anything else in the short and
cogent, pithy manner they would like to voice.
Ms. Roseberry. I do, your Honor.
Mr. Cohen. Go ahead.
Ms. Roseberry. Mr. Chair, I think looking at these issues
in a vacuum is what has kept us in a system of mass
incarceration. I think we have to look beyond the scope of
nearly our criminal legal system to policing, and how
communities, or particularly communities of colors and poor
communities are policed, so that there is more interaction with
the criminal legal system, and there is more difficulty getting
out of the criminal legal system.
And I also lift up the idea of reentry. I know that we are
not here for reentry, but clemency affects that. When people
come home, they need to be able to fully integrate, not just
having a job, but understanding the technology that works or
has come into existence since they have been away,
understanding how the world works.
Yesterday, I had a briefing with the Justice Round Table
where I saw that Washington State is working to reintegrate
parents with children earlier. You heard about Mr. Underwood
who is prison here, who has been away from his children
forever. We need to think about families, and reintegrating
those families with each other as we bring people home as well.
And that means preparing people while they are in prison, for a
short period of time, preparing them to come home so that the
community can be assured that they are coming home
rehabilitated and that the environment is safe.
Mr. Cohen. Thank you, Ms. Roseberry. We have a Subcommittee
on Crime, and the chairwoman, Karen Bass, had a hearing on that
subject. It might have been this week, but it was recently. If
not this week, it was last week, and we went into several of
those issues, but that is important, reentry.
Professor.
Mr. Osler. Yes. I would just like to follow up on something
Mr. Armstrong said about--you mentioned the 100-to-1 ratio
between crack and powder and the influence that had. That is
what pulled me into this whole thing. I was a Federal
prosecutor in Detroit in the 1990s. I prosecuted those cases. I
sought those sentences, and I received them, but I stopped
believing in it. And it was coming to the other side, and
eventually, we did win in the Supreme Court, and we did win at
least in the Fair Sentencing Act through the work of Ms. Taifa
and others, you know, changed prospectively. But clemency was
what allowed us to look retrospectively.
Now, that brings me to my final point, which is, too often,
we talk about criminal justice reforms as this or this. It
needs to be this and this. And so, when we talk about other
reforms, and I think Professor Barkow did a great job of
outlining some of those other reforms that are necessary. That
is not at the exclusion of fixing clemency. It has to be fixing
clemency and creating those reforms to prevent the tragedies
that you described. Thank you.
Ms. Barkow. Just quickly, I would just say that mercy and
reducing sentences aren't inconsistent with safety. This is a
really good opportunity. You can do both. And actually,
lowering sentences can help improve safety. It makes reentry
easier for people when they serve shorter sentences. Longer
sentences are not--I think people make an assumption that we
want to keep sentences as long as possible, and we don't want
retroactive relief because that is good for safety, but we have
mounds of data that shows that is not true.
Mr. Cohen. Let me ask a question of the panel. You all have
mentioned 1,700 people who were commuted, had sentence
commutations under President Obama. Were there maybe 7- or 800
pardons as well?
Ms. Barkow. No. The pardon process--there were almost no
pardons because all the effort was brought into commutations.
Mr. Osler. It was in the 200s, I believe, the number of
pardons. And this is described in the Inspector General's
report as well, that as they were working on the commutations,
they intentionally set aside pardons and said to the pardon
office, don't worry about pardons. Just focus on commutations.
Eventually towards the end of the process, they changed their
mind. They dedicated one person to the pardon office to work on
just pardons, and that's how we got that relatively small
number.
Mr. Cohen. And it is referred to as the 2014 plan. When did
they start issuing clemencies?
Mr. Osler. I believe that the first eight came----
Ms. Roseberry. In 2015.
Mr. Osler. 2015.
Ms. Roseberry. It was calendar year 2015.
Mr. Cohen. Was it light in 2015.
Ms. Roseberry. It was. Yes, it was. It took a while to get
up and get going. We had to receive data from the Bureau of
Prisons in order to identify people. And I should also say that
the 36,000 were people who came to the project looking for a
petition to be filed. Ultimately, under the discrete criteria
that were announced, many of them were not passed on through
petition because it was found that they appeared not to
qualify.
Mr. Cohen. Thank you. Thank you.
Kelly. Do you have anything else, Representative Armstrong?
Mr. Armstrong. I don't. I just want to say, again, thank
you all for being here.
Mr. Cohen. Nobody else. No.
All right. That concludes today's hearing. I want to thank
all of our witnesses and Ms. Smith Pradia, who had to catch a
plane to get to Carolina to speak. I thank everybody for
appearing. Without objection, all members have 5 legislative
days to submit additional written questions for the witnesses
and additional materials for the record.
This hearing is adjourned.
[Whereupon, at 12:07 p.m., the subcommittee was adjourned.]
APPENDIX
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