Protecting Your Litigation: Biden’s Clemency Announcement

President Biden may flex the clemency power early in his term. Here's what those who are seeking sentencing reform should consider.

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President Biden has hinted at the use of clemency early on in his Presidency to address the backlog of clemency petitions before him.  This could lead to many inmates being released early.  This could also lead to confusion among inmates with pending litigation. 

The Presidential Power of Clemency

Article II, Section 2 of the Constitution gives the President pardon power.  The relevant text of that section states as follows:

“…he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” 

While put simply, this is an enormous power that includes both commutations, where a person who is actively serving their sentence has said sentence or fine reduced in any amount (from one day off all the way down to no days left), and pardons, which is a form of executive form of forgiveness for a conviction and sentence, usually one that has already been completed, and serves as the only way a person can receive certain rights again (such as voting or the ability to carry a firearm). 

The Pardon Attorney’s website states that the Pardon Attorney has assisted the President in the exercise of the executive clemency power for the past 125 years.  Important to note is that the Pardon Attorney is a part of the Department of Justice, which also presides over the United States Attorneys who are involved in the prosecution of alleged defendants.  This allows those two agencies to share information, such as police reports or victim statements (when applicable). 

The Clemency Backlog Created by Former Administrations

Clemency is a function of the President. Therefore, the President determines when a clemency will be granted or denied.  As of now, there is no external committee to determine who should or should not get clemency.  There is also no real oversight over who receives clemency. 

It is solely up to the President.  If the President does not decide a pending clemency matter then it “rolls over” to the next President. 

Some quick math on the pardon attorney’s statistics page indicates that Former President Bush ruled on over 9500 pardons and commutations, Former President Obama ruled on over 22,000 and President Trump ruled on 418.  The Hill estimates that over 15,000 clemency matters are waiting to be ruled upon by President Biden.

Given Democrats’ slim majorities in Congress, the broad clemency powers afforded to the president could be an attractive way for Biden to show he is taking action on reforming the justice system. The Justice Department faces a backlog of some 15,000 petitions for clemency.

Source: The Hill, Biden set to flex clemency powers

This happened in our office on more than one occasion: Our office submitted a clemency petition to Former President Obama that he did not get to.  The clemency was then carried over to now Former President Trump.  Many of those clemencies are now pending with President Biden. 

The unevenness present with the Clemency Process has led to many calls for clemency reform.  Many ideas have been floated such as removing power from the Department of Justice as an initial step or preventing self-pardons.  Other more practical reforms include supplying more resources to the pardon attorney’s office so the office has the staff to review applications.  But most of these reforms would require other laws to be passed.   

President Biden’s Statement on Willingness to Utilize Clemency

President Biden has sent signals that he is interested in using his pardon power early in his term:

White House officials are signaling that President Biden is prepared to flex his clemency powers as officials wade through a large backlog of requests behind the scenes, according to advocates with whom the White House has consulted on criminal justice reform.

The White House held a Zoom call last week to discuss criminal justice reform with advocates and formerly incarcerated people, some of whom are pressing Biden to use his powers to free people jailed on drug offenses and sick and elderly people who pose no threat to society.

While the White House did not signal any imminent moves, officials indicated that Biden will not hold off until later in his term to issue pardons or commutations.

Source: The Hill, Biden set to flex clemency powers

Early grants of clemency would be a great way to continue the downward trend of the prison population and even prevent people on home confinement from going back to prison after the pandemic is over.  But the Department of Justice has created an impediment that could work to hinder the clemency process.   

Risks of Other Litigation While in the Clemency Process

The Department of Justice has a self-imposed guideline that prohibits a pardon petition from being heard when the person has other litigation pending. 

Under well-established procedures, this office will not process a clemency application while litigation concerning the case is pending.  Should the inmate’s case be resolved adversely to the inmate and should no other litigation follow, the inmate may submit a new commutation of sentence petition to this Office, through the case manager, along with the standard reports detailed in the Bureau of Prisons Program Statement No. 1330.15, effective August 23, 2001 (28 C.F.R. §§ 571.40 – 571.41

Source:  Office of the Pardon Attorney Frequently Asked Questions Page. 

This carries special significance this year when there are several sentencing reforms that are being considered by a unified legislative and executive branch.  The bills that have originated in the senate such as the Smarter Sentencing Act and the First Step Implementation Act are particularly significant. 

The reforms cause a difficult question for those who are also seeking clemency:  If reforms are passed should I seek them or should I seek or continue my clemency?  There is a potential for the worst case scenario where someone seeks a reduction in sentence due to pending legislation, their clemency is administratively closed and then they lose their motion for reduction in sentence as well. 

Steps to Protect Clemency Seeker Rights:

In light of the above, there are several things things that we recommend that prospective clemency seekers consider. 

File for Clemency Today: Get in the Front of the Line! 

We cannot say what future is going to hold at all.  There may be reform that is signed by the President.  But there is always the possibility of amendments or proposed reforms do not get passed at all. 

Changes can happen quickly. When the FIRST STEP Act was passed, it happened shortly after an amendment was passed that made substantial changes. So try to get a clemency petition in as soon as possible to protect your rights. 

Talk to a Lawyer for Information

If laws are passed then you need to make sure that those laws affect you. The easiest way to do this is to reach out to an attorney and ask them if you can get relief from passed legislation.  This is not something that you want to leave up to chance. 

By filing a motion before you know that you are an appropriate candidate you run the risk of getting denied and losing your spot in line due to administrative closure of your pardon case.  The writing of a letter to the judge asking for either relief or even asking for the appointment of counsel may be construed as filing a motion even if that was not your intention.  You might need to go to your counselor’s or case manager’s office to get your PSI for the lawyer. 

Keep Copies of your Clemency Filings

If your clemency is administratively closed because you filed a motion, then monitor your case.  If your motion is decided adversely then seek clemency again. You will be glad you kept the paperwork.

An administrative closure is different from a denial and can be filed again after the criminal litigation is over without the one-year wait that comes with a denial.  

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