Biden Must Fix The Broken Executive Clemency Process. This Is Who He Should Select To Lead That Effort.

This commentary is part of The Appeal’s collection of opinion and analysis.

There is a moment in Hamlet, when Ophelia is ostensibly going mad (or reacting pretty reasonably to the absolutely maddening circumstances around her) and Claudius asks her how she’s doing. She replies, “We know what we are, but know not what we may be.” And in this one line, poor Ophelia sums up one of the most problematic, intractable inequities in America’s system of justice: what do we do with the fundamental fact that every human being, and accordingly, every human society, is in a near-constant state of change?

Much of the conversation surrounding how we can fix–or dismantle and replace–our deeply toxic criminal legal system has, correctly, focused on what states and counties must do to increase equity, liberty, and success for the most heavily-impacted communities. After all, the US Constitution designates criminal law as, for the most part, a state issue. But the President can still exert a profound influence over the fate of hundreds of thousands of people, and, by example, lead a transformation in the way we relate to past wrongdoing. The President, in fact, holds singularly powerful tools in the law–the often-overlooked, criminally-underutilized power of clemency. 

Clemency is the natural response to the quandary raised by Ophelia. In a nation that sentences people to unconscionably long sentences, wildly out of step with the rest of the world, we have collectively chosen to ignore the fundamental fact that people grow and change. The 24-year-old kid who broke into someone’s garage trying to steal a stereo system is not the same as the 40-year-old man who has devoted himself to learning, gotten a degree and some well-developed technical skills, and wants desperately to return to be a better dad to his kids on the outside. But also, clemency addresses a larger problem within our system: the fact that as a society, our priorities shift, our fears ebb, and the people we are in 2020 are not the people we were in 1994. 

This latter point is perhaps the most significant. Clemency, the Constitutional pardon power of the President to grant release to anyone, and to move faster and with more humanity, flexibility, and intelligence than a creaking legal system disinclined toward retroactive mercy. As Rachel Barkow, law professor, former clerk for U.S. Supreme Court Justice Antonin Scalia, and one of the foremost experts on clemency in America, wrote in 2015: 

“The current environment of expansive federal criminal laws and aggressive charging by federal prosecutors has produced a criminal justice system of unprecedented size and scope. Federal prisons are overcrowded and expensive, and hundreds of thousands of individuals are hindered from reentering society because of a federal record. Clemency is a key tool for addressing poor enforcement decisions and injustices in this system, as well as checking disparities in how different U.S. Attorneys enforce the law.”

In other words, we must work at all levels to transform our criminal legal system. But we can’t neglect powerful, fast tools like clemency. We shouldn’t box clemency away as merely some form of mercy, when in fact it is something much more akin to a high-speed mechanism for undoing the worst impacts of bad, outdated policy and enforcement choices. And yet, we have done exactly that: As Barkow has pointed out, we’ve taken this powerful tool and abandoned it in a dusty closet somewhere in the basement of the Department of Justice. That’s where a brave new Administration must begin. 

Right now, a single person petitioning for clemency must go through seven layers of review within DOJ before their petition might make it before the President. Seven different stages at which a simple “no thank you” ends the chances of turning a life around. This means that not only is the onus on the imprisoned person to make the case for their own release (enough of a challenge even by itself), they must do so repeatedly, persuasively, fighting through a slow and restrictive gauntlet that hampers the greatest power of clemency, which is to broaden the capacity of the executive to act as a check on systemic injustice. 

It wasn’t always this way. Historically, clemency was used frequently, with every president pardoning thousands of people up until the time of President Gerald Ford. Thomas Jefferson pardoned everyone who had been convicted under the Sedition Act, Abraham Lincoln pardoned hundreds of members of the Dakota Tribe, all previously sentenced to death for killing white Americans who tried to take their land. Andrew Johnson pardoned everyone who had been loyal to the Confederacy, which was, of course, thousands and thousands of people. But even more run-of-the-mill pardons were abundant, up until they were cut off and buried under layers and layers of process in recent years. 

As you might expect, this choking process has left clemency in a state of crisis. It is dysfunctional, available primarily to the powerful, and raises only false hopes for marginalized people. But we are standing, post-election, on the verge of tremendous change. Looking to a Biden Administration that, at its core, has indicated a commitment to righting the wrongs of the past and looking for smarter, more human (and humane) solutions. Clemency is a fantastic opportunity for such an administration: fixing clemency in a way that would spur transformative change doesn’t require congress, doesn’t require massive bureaucracy, and doesn’t require anything other than strong executive action–and an executive ready to leverage the unique depths of his own empathy. 

The process is simple: first, the new President Joe Biden must move the clemency process out of DOJ and into the White House, and appoint someone with deep grounding in the topic–and bipartisan credibility–to lead a committee on clemency that would not only build a system to process individual applications faster, but create proactive tactics for finding ways to use the clemency power to undo the worst impacts of bad, carceral law–even for people who hadn’t been able to file for relief on their own. Best of all, this idea isn’t particularly controversial: it was supported during the primary by everyone from Senators Amy Klobuchar to Bernie Sanders, it made it through the Biden-Sanders Unity Taskforce, and it was integrated into the 2020 Democratic Party platform. For context, this makes it significantly less controversial than, say, legalizing marijuana–a policy many, many states are already enacting. 

Rachel Barkow, of course, would be a very smart choice, as someone whose primary body of work has focused on building a better clemency system, and who has also been celebrated by advocates from across the political spectrum. She’s not only a respected scholar and former clerk to the iconic Justice Scalia, she’s a national policy player who has been through Senate confirmation once already, joining the U.S. Sentencing Commission in 2013. But importantly, her views aren’t limited to the ivory tower–she’s done the actual work of helping people apply for clemency: she and co-author Mark Osler started a “pop up” clemency clinic to help people apply for clemency in 2014. She earned the prestigious NYU Making A Difference Award for that effort–a prize reserved for those who make a lasting, profoundly beneficial impact on the world. In short, she could garner broad support, has deep expertise, is unafraid of smart solutions even when they mean bucking existing, rusted-out norms, and is hard to argue against given her combination of policy and tactical experience, and her history of bipartisan support. 

Leading a team that would not just include but center the experiences of people who had lived through incarceration, and also reserve space for public defenders, civil rights lawyers, and progressive prosecutors who carry a more modern understanding of second chances than their old-school peers, Barkow could hand the President a mechanism for fostering liberty, opportunity and restoration out of the wreckage of our bloated system. She could change the game by building a faster, smarter process. For people who love comparisons, Barkow’s role in the clemency conversation is not dissimilar from the robust academic-yet-tactical power Senator Elizabeth Warren has brought to the conversation around the Consumer Financial Protection Bureau. Tasking Barkow with bringing clemency into the White House would be a little like letting Sen. Warren supercharge the CFPB. 

Instead of placing endless barriers between deserving, promising people and their chance to be heard, or allowing prosecutorial dinosaurs at DOJ to stand between ordinary people and opportunity, she and her committee could fast-track applications and give President Biden an opportunity to be a groundbreaking leader in this area. They could seek out specific areas where we know sentences are too long and out of step with current enforcement priorities and find people who may not have had the capacity to file a petition, but whose sentence is wildly out of step with modern views. It would be especially beautiful to break down the legacy of 1994–and 1990s punitive measures more generally–with this unique and deceptively simple action. 

It’s too late for Ophelia, of course. But perhaps with a fresh strategy on second chances, President Biden can finally codify and recognize both our individual and collective capacity for change.