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Justice in America Episode 18: What Happened to Clemency?

Josie and Clint talk to NYU law professor Rachel Barkow about presidential pardon powers.

US President Donald Trump speaks after granting posthumous pardon to former heavyweight champion Jack Johnson in the Oval Office of the White House
President Trump grants a posthumous pardon to former heavyweight champion Jack Johnson in the Oval Office of the White House on May 24, 2018.Olivier Douliery / Pool/Getty Images

The pardon power is one of the strongest presidential powers in our constitution. The president alone has the ability to pardon or commute the sentence of any person convicted of a federal offense. (For those convicted of a state offense, usually it’s the governor who has that power.) But despite the fact that we imprison more people than ever, over the last few decades, presidents have been increasingly less likely to pardon people or commute sentences. On this episode, Clint and Josie discuss pardons and commutations, including some of the bizarre and fascinating decisions of presidents past. They also talk to clemency expert and NYU Law Professor Rachel Barkow about where Obama failed on this issue and the potential for a restructured process.

Additional Resources:

Here’s a link to Professor Barkow’s new book, Prisoners of Politics: Breaking the Cycle of Mass Incarceration

Professor Barkow has written about clemency extensively. Here’s an article she wrote for the Washington Post with Mark Osler.

And here’s her paper, Restructuring Clemency: The Cost of Ignoring Clemency and a Plan for Renewal.

For more on the racial disparity in pardons and commutations, read the ProPublica study.

Another good piece: Pardons Have Changed A Lot (And We’re Not Just Talking About Arpaio), FiveThirtyEight

For an interesting look at the state level process, here’s a PSMag piece on California’s Governor, Jerry Brown, and his pardon and commutation legacy.

And check out New Thinking, a great podcast by Matt Watkins. We included a clip from his conversation with Bruce Western.

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[Begin Clip]

Rachel Barkow: We give really long sentences in the United States to people. And the idea that you could sentence somebody who is, you know, 21, 22 years old for 50 years and never look again so see whether that makes sense, either because that person has changed dramatically or because we as a society have changed. You know, we’ve changed our views on whatever the underlying criminal conduct was. Or we’ve just changed our views on the social circumstances surrounding that person’s commission of the crime. You know, to me that’s just messed up.

[End Clip]

Josie: Hi, I’m Josie Duffy Rice.

Clint: And I’m Clint Smith.

Josie: And this is Justice in America.  Each show we discuss a topic in the American criminal justice system and try to explain what it is and how it works.

Clint: Thank you everyone for joining us today. You can find us on Twitter at @justice_podcast, like us on our Facebook page at Justice in America and subscribe and rate us on iTunes, or wherever you listen, we’d really love to hear from you.

Josie: We opened the show with a clip from our guest, NYU Law Professor Rachel Barkow, whose book, Prisoners of Politics: Breaking the Cycle of Mass Incarceration, was released early this March.

Clint: She’s going to talk to us about our topic today, which has been in the news lately, if you’ve been paying attention to criminal justice news. Or anything related to Donald Trump.

Josie: Or if you’ve been following any news about Kim Kardashian.

Clint: Also true. And that is the power of clemency. Pardons, commutations, what they are, who can do them, who gets them, all that.

Josie: And we’re going to talk to Professor Barkow, who has done a ton of work on this issue. She’s going to tell us all the hoops a person has to jump through in order to even be considered for a commutation or pardon. She is also going to talk to us about Obama’s successes and failures on this issue, and even about her experience clerking for Justice Scalia. But before we start on commutations and pardons, we are going to do our very favorite word of the day.

Clint:  So, as many of you know, every week we spend just a quick minute talking about a word, or phrase, or term related to our criminal justice system that we think is misused or misunderstood, or frankly, just kinda useless. And today that word is, as sometimes is the case, actually two words: victim and offender. [Bell.] Now, to be clear, these words are certainly not useless. But they are far more complicated than we tend to think of them. Or, more specifically, far more complicated than the criminal legal system tends to employ them.

Josie: When we talk about the criminal justice system, as we’ve said tons of times before, we’re talking about a lot of different processes and situations and actors. But very very generally, on this particular point, we can think of things along two axis. On one, there is the actual alleged crime. So, the robbery or the drug sale or the incident, in other words.

Clint: And on the other axis, are the actual people involved. And in the way our criminal justice system talks about those people, in particular when we’re talking about the notion of violent crime, and what people consider to be violent or not violent, the people tend to be split into two groups: the victim and the offender.

Josie: Now, in any given situation, in any given incident, those words may totally apply. If I break into Clint’s house and steal all of his stuff, it is totally reasonable to call him the victim and me the offender, unless Clint deserved it.

Clint: (Chuckles.)

Josie: The problem with these terms tends to arise when we’re talking about people as a whole, their entire selves, rather than an individual incident.

Clint: So what we’re getting at here is something that we talk about a lot on this show which is our system’s tendency to flatten people, so sort of render them two dimensional, to categorize them, to put them in a box. And, in many situations, this betrays a fundamental misunderstanding of who people are and what they’ve experienced. Bruce Western, a mentor of mine, a brilliant criminal justice expert, former professor at Harvard, current professor at Columbia University, leader of their Justice Lab, he is someone that we would love to have on at some point, Bruce if you’re listening, please come on. He has talked about this extensively. And his recent book, Homeward, which is phenomenal and we highly recommend it, it is a book rooted in a reentry study that he did of people returning from prison in Boston. Here he is on the Center for Court Innovations podcast, a podcast called New Thinking, which is great, talking to Matt Watkins about the limits of this dichotomy between victim and offender and how it often creates a sort of false binary that, again, flattens people in ways that aren’t really reflective of the complicated nature of their circumstances. The conversation begins with Watkins here.

[Begin Clip]

Matt Watkins: In a sense this portrait that you’re offering of the people that you studied is making how we think about criminal offenses much more complex. You’re really complicating the simple binary between good and evil, guilty and innocent.

If we look for a moment specifically at the question of violence and people experiencing and witnessing violence in their early years, I was really struck by the statistic of 40 percent of people in your survey had witnessed someone being killed.

Bruce Western: Yeah it’s extraordinary.

Matt Watkins: I mean, that’s just an extraordinary number. So how do you think your findings complicate how we think about people who have been convicted of violent offenses?

Bruce Western: Yeah. I mean for me this was one of the really eye-opening aspects of the research. I felt through this work we had gained some window onto a world that was just shot through with ethical ambiguity. And because of the different kinds of material hardship that people were dealing with, they’re very often put in situations where they had to make choices that in many cases those choices were never very good. Violence in some cases became functional, became a way of dealing with problems, very difficult problems.

And I think this is very different from the moral universe that is contemplated by our criminal justice system, which tends to divide the world into innocent victims and guilty offenders. Guilty offenders prey on innocent victims, and the job of the system is to mete out punishment and separate offenders from victims.

But in the world of the Boston reentry study, that our respondents were sharing with us, you couldn’t divide the world into victims and offenders because people, who in some cases committed acts of serious violence, for example, and had gone to prison for them, had very serious histories of victimization themselves, had witnessed a lot of violence themselves. And I think the violence we observed in many cases was of a very contextual kind, which meant that people were growing up in chaotic homes, they were living in neighborhoods that were very high crime areas. And tt makes me think if you had grown up in that family, or if I had grown up in that family, we would have been exposed to a lot of violence in our lives too, and we may have well have become quite seriously involved in violence as well.

[End Clip]

Josie: At the beginning of that clip, Watkins references Western’s finding that 40 percent of the people he studied had witnessed someone being killed. Just think about that. Think about that number. In many situations, people who do terrible things have had terrible things done to them and they are victims of this deep deep trauma.

Clint: To be clear, this is not to discount any individual incident. We’re not saying that it’s acceptable to assault somebody because you’ve been assaulted and we’re not trying to strip people of their agency. But what we’re trying to do here is illuminate the ways in which people are often products of their experiences and the trajectories that their lives take can’t be disentangled from the circumstances that they’re coming from. On a previous episode this season, we talked about the word “violence” and how imprecise it is. But it’s not just that the categorization of violence is far more complicated than we often tend to use it, it’s the offender one as well.

Josie: And, like Watkins says in that clip, this is related to other ways we think and other ways we categorize people in this system. So good or evil, guilty people or innocent people. Things are complicated, but even more, people are complicated. Again, that doesn’t mean they shouldn’t be held responsible but it does mean that they cannot be easily categorized. As Professor Western said in a piece that he wrote, “The complex reality of their lives — and the lives of so many other men and women like them — as both violent perpetrator and violence victim is one the U.S. justice system is ill-prepared to acknowledge or treat.” So that is our word of the day, or words of the day. [Bell.] Now we are moving on to Clemency.

Clint: So, what is clemency? In the criminal justice context, clemency is the power given to the executive branch of a government that allows them to reduce the punishment a defendant has received. And when we say the executive branch of government, what we mean is that only the president has the power to make a final decision on a federal level. On the state level, the Governor or in some cases a Board, are the ones that has clemency power. Sometimes they both have power together. But ultimately, the point is, the clemency power is only granted to very few people, by very few people.

Josie: Clemency really takes two different forms. So the first is a pardon. The Department of Justice website describes a pardon as quote, “an expression of the President’s forgiveness.” This basically allows the government to absolve a person of guilt for a crime. To be clear, that means legal guilt. It basically makes it as if the person’s arrest and conviction and sentence had never happened. But it doesn’t mean they’re actually innocent. In fact, historically, it’s basically been a requirement that a person accept full responsibility for their wrongdoing in order to even be considered for a pardon. Now people can be pardoned while they’re serving their sentence or after its over. They can even be pardoned after they die actually.

Clint: The other primary type of clemency is a commutation, and that’s where a penalty is reduced. So perhaps you’ve been convicted of a crime, and you’ve served ten years of your thirty year sentence, and the governor decides to commute your sentence to ten years instead of thirty. That means that you no longer have to serve those last twenty years. But it doesn’t mean you’re now considered innocent, or that the criminal sentence is erased in it’s entirely. It is a reduction, not an elimination.  

Josie: Now, we did not invent clemency in America. In fact, it goes back centuries and even millennia to the British Monarchy and seventh century kings and even further to Ancient Greece and Rome. In fact, they talk about clemency in the Bible. But even though we didn’t create it, it is very deeply enshrined in our government and our country. The Presidential power to pardon is actually in Article II of the Constitution. As The Washington Post called it, it’s one of the quote, “strongest unilateral authorities of the presidency.” A pardon doesn’t have to be approved by Congress. It can’t be vetoed. It is, on the federal level, a presidential power. On the federal level there are just two limitations to the president’s power to pardon. Presidents can’t pardon people who have been convicted under state law, just federal law. People convicted under state law have to go to their state authority, either the governor or the board. And presidential pardons cannot quote, “derail or overrule the impeachment process.”

Clint: Yeah, and that one feels particularly relevant, given the time period that we’re occupying.

Josie: The question is whether presidents can pardon themselves but we’ll figure that out with time surely.

Clint: What’s interesting is that the people who founded the United States put the power in our Constitution with the expectation that it would be used pretty regularly. They realized that the justice system isn’t always fair, and they expected it to be a sort of fail safe. And for a long time, it pretty much was. It used to be that judges and prosecutors would actually come to the president with cases where they thought the law was way too harsh. Apparently, Thomas Jefferson received requests on behalf of two different people convicted of goose thievery within a two week period. Imagine a judge just being able to go to the president and being like, ‘yo we got another goose thief. Can you pardon this guy really quick? We got a lot going on, appreciate it.’ If only things were so simple.

Josie: (Laughs.) Back in the day. There used to be a lot of presidential pardons. Thomas Jefferson pardoned everyone who had been convicted under the Sedition Act. Lincoln was big on pardons, too, and he actually pardoned 264 of the 303 Native Americans, members of the Dakota Tribe, who had been sentenced to death for attacking and killing a number of white Americans who tried to take their land. But, before you give him too much credit, he also allowed the other 38 to hang to death, which remains the largest one-day mass execution in American history. And we’re not even talking about the 1,000 Dakota women, men, and children who were taken hostage by the US military during that time, but, I digress.

Clint: After Lincoln, Andrew Johnson — yes, Johnson, not Jackson — pardoned a bunch of people, almost all of whom were ex-Confederates. Usually, he’s at the bottom of my listen when we talk about the worst presidents of all time, he has some competition now, but, I digress. In 1865, he offered to pardon Confederate soldiers, offering them amnesty if they’d sign an oath of loyalty to the US. But there were fourteen exceptions to that offer, including Confederate office holders. Also, people with property worth over $20,000, which must mean, I’m not an economist but I imagine that’s a bajillion dollars right now, were not eligible, which is pretty interesting. Johnson was not okay with the big plantation owners getting pardoned. But by 1868, Johnson issued a full pardon to everyone who had been loyal to the confederacy, which was, of course, thousands and thousands of people and thousands and thousands of white supremacists, treasonists-

Josie: Yes. Correct.

Clint: Now US citizens who get to keep all their stuff.

Josie: Precisely. So, there are some other famous examples of clemency worth mentioning. In 1927, Calvin Coolidge commuted Marcus Garvey’s sentence, which I didn’t know, before recently. But then of course deported Garvey, so, not all good.

Clint: Gerald Ford, of course, pardoned Richard Nixon, which may have lost him re-election.

Josie: Gerald Ford also pardoned Robert E. Lee. Posthumously pardoned. Granted him his full citizenship rights, a full century later, which is weird.

Clint: And, also weird, Jimmy Carter, yes Jimmy-peanut-farmer-solar panel-on-the-White-House-Carter, liberal darling, posthumously pardoned Jefferson Davis. Yes, Jefferson Davis, who was the President of the Confederacy, and he had already basically ben pardoned by Andrew Johnson.

Josie: That’s true. Jimmy Carter also pardoned Patty Hearst, the kidnapping victim who was later convicted of bank robbery. Reagan pardoned George Steinbrenner, the former Yankees manager, for illegal contributions to Nixon.

Clint: Clinton pardoned his own brother, Roger Clinton, who had been convicted of a cocaine charge. George Bush commuted Scooter Libby’s sentence, who was the Chief of Staff to Dick Cheney and had been convicted of perjury because of that whole CIA leak scandal thing.  

Josie: And Obama, you may remember, commuted the sentence of Chelsea Manning. And our current president Trump, pardoned Dinesh D’Souza and Sheriff Joe Arpaio. True freedom fighters. He also pardoned Scooter Libby, who had already had his sentence commuted by George W. Bush. But he also commuted the sentence of Alice Marie Johnson, a first-time drug offender who was sentenced to life without parole in 1996. Now, in true Trump fashion, it was kind of a bizarre situation that included Kim Kardashian of all people, as we said earlier. Here she is talking about Ms. Johnson.

[Begin Clip]

Kim Kardashian: And you know I just really strongly believe that that she is someone that has completely rehabilitated herself and will continue to do so outside of prison. You know, she’s done her time. I mean she’s done almost twenty two years. You know, I think in life everyone makes mistakes and she really deserves a second chance.

[End Clip]

Josie: But despite the celebrity aspect, granting clemency to Alice Marie Johnson was really important and Johnson could have never seen the light of day again for a drug charge.

Clint: And the fact that no one had commuted her sentence before Trump highlights the kind of disturbing trend we see in clemency today. Basically, exercising executive clemency was fairly common until a few decades ago. Then, for reasons Professor Barkow will outline for us, it begins to become less and less common. Now, it is basically rarer than ever. And even presidents that have commuted or pardoned a lot of sentences compared to their predecessors, like Obama, for example, they are still exercising the power much less often relative to former presidents beyond a few decades ago.

Josie: Right. From Woodrow Wilson, who became president in 1913, all the way through Lyndon Johnson’s presidency, almost every president pardoned or commuted the sentence of over 1,000 people. There were only two exceptions, Warren Harding, who died 2 years and 4 months into his presidency and John F. Kennedy, who was assassinated 2 years and 10 months into his. Even Nixon, who also, you may remember, had his presidency cut short, granted clemency to over 900 people. But then, from Gerald Ford through now basically, the numbers were reduced significantly.

Clint: Now, Obama is the exception. He granted clemency to about 2000 people, many more than his recent predecessors. But there are a lot of complications with that record, as Professor Barkow will talk about. And he’s the exception in the past 40 years. Reagan granted only about 400 people clemency. George W. Bush only about 200. And George Bush Sr. granted just 77. So far, Trump has pardoned seven people and commuted just two sentences. One of the people he pardoned, boxer Jack Johnson, died in 1946.

Josie: That sharp downturn is even more pronounced when you remember the simultaneous increase in the prison population. So in 1915, when Woodrow Wilson was president, there were just about 4,000 people in federal prison total. And like we said he granted clemency to over 1,000. By 1940, there were about 24,000 people in federal prison. And then for decades, literally decades, that number stayed relatively steady. By 1980, the number of people in federal facilities was still about 24,000. To commute or pardon thousands of people made a much bigger impact back then.

Clint: By 1990 though, the prison population had more than doubled, to about 60,000 prisoners. By 2000, it had more than doubled again, to about 145,000. In 2007, the average daily population reached 200,000. And yet, the president at the time, George W., granted clemency to a measly 200 people over 8 years. And one of them was his vice president’s chief of staff.

Josie: Yea, it’s really wild. So,  A few things to note before we talk to Professor Barkow. First,  over the years we’ve seen incidents of prosecutors and law enforcement officials trying to limit the ability for sentences to be commuted. And this happens on the state level. In Oklahoma and Arkansas, for example, there is a board that advises the governor on who should be granted clemency. In the past, prosecutors have lobbied the state legislatures, trying to make it harder for the boards in those states to recommend people for clemency.

Clint:  It’s just another way that prosecutors wield their power, even in an area that is expressly out of their authority. They’re also a big impediment to clemency on a federal level, which Professor Barkow will discuss.  

Josie:  Another thing is that we mentioned George W. Bush’s decision to commute Scooter Libby’s sentence and we mentioned Trump’s decision to pardon Joe Arpaio, who was one of the country’s most brutal and racist sheriffs. These are two examples of how the clemency power can be used to really depraved ends. Presidents and most governors have the power to pardon their friends, their political allies, if you’re Clinton you can pardon your brother, even when these people have not been subject to injustice. So when we think about the potential power of clemency, it truly can be used as a mechanism for justice. But it can also, potentially, be used for the opposite. Of course, though, presidents and governors want to be re-elected and pardoning their buddies isn’t necessarily the way to do that. Just ask Gerald Ford.

Clint: Didn’t work out too well for him

Josie: Did not.  

Clint: So we haven’t talked a lot about state level clemency, since it’s kind of harder and more difficult to identify bigger clemency trends across all the states, of course, because there are many more moving parts. But here’s a story worth noting. In 2003, the governor of Illinois, Governor Homer Ryan, commuted the entirety of death row. All 167 people who were facing execution. Here he is talking about it.

[Begin Clip]

Homer Ryan: I stand before you to explain my frustrations and deep concerns about both the administration and the penalty of death. I’m commuting the sentence of all death row inmates. [Applause] …I realize that my decision will draw ridicule and scorn and anger from many who oppose this decision. And they’ll say that I’m usurping the decisions of judges and juries and state legislatures. But as I have said the people of our state have vested in me the power to act in the interest of justice. [Applause] It’s the only place in the Constitution done that way. And even if the exercise of my power becomes my burden  I’ll bear it… You know, Abraham Lincoln was a hell of a guy… and he said once, “I have always found that mercy bears richer fruits than strict justice.”

[End Clip]

Josie: This was an incredibly important moment and it’s really tragic that it hasn’t happened more often. This was a governor correcting what he saw as an extreme injustice using the power of clemency and the fact that he identified the importance of mercy is another really important part about it. The fact that our prison population has skyrocketed as executive clemency has gotten more and more rare is not a coincidence. Professor Barkow has actually written about this before and we’ll link to her article on this episode’s page on The Appeal. The point is that our criminal justice system values mercy less now than it ever has before. And this is a distressing theme we see across all issues, including clemency.

Clint: Joining us to talk about this is Rachel Barkow, a professor of Administrative, Constitutional, and of course, Criminal Law at New York University. Much of Professor Barkow’s scholarship has been on sentencing and clemency, and in 2013, the Senate appointed her to the United States Sentencing Commission, where she served until last January. Her new book, Prisoners of Politics: Breaking the Cycle of Mass Incarceration, was just released in March.


Josie: Rachel thank you so much for joining us today. We’re really excited to talk to you.

Rachel Barkow: Thanks for having me.

Josie: So today we’re talking about clemency, about commutations and pardons and that’s been such a huge part of the work that you’ve done and I was hoping you could start by telling us a bit about why you’ve focused so heavily on the power of clemency in your work.

Rachel Barkow: Sure, you know, it’s really a natural outgrowth for working on sentencing so I’ve done a lot on criminal punishment and sentences. And when you do that, you pretty quickly run into really long sentences that people are given and no ability for those folks to get relief from them if you’re in a jurisdiction that doesn’t have parole or any other second look mechanism other than seeking some kind of commutation or clemency grant from either the governor, or if it’s a federal sentence, from the president. So my interest in this came really from working on federal sentencing and seeing so many of those long sentences without the ability of these people to get parole and wondering what kind of correction might be out there and thinking about using the presidential clemency power as one of the key correctives.

Clint: So presidents used to pardon and commute far more sentences than they have in recent years. Can you talk about the trends that have existed in clemency? Sort of what has clemency looked like on a federal level from Carter, Reagan, Clinton, Bush, Obama and sort of give us a sense of how different presidents have thought about the process of clemency. And if you have a sense what that has kind of looked like nationally and on a state by state level over the most sort of recent history.

Rachel Barkow: Absolutely. So just to give you some historical context, clemency grants were very common throughout most of the nation’s history, both by presidents and by governors. They would be a routine part of the criminal justice system’s operations. So the idea that people would ask for relief from sentences and get reductions or to get pardons and clear their record was something that was done pretty routinely. And really we don’t see a big drop off in that. There’s kind of two big things that happen. So one is when parole comes on the scene, it replaces clemency to some extent because there’s this other mechanism you could go to to get your sentence reduced.

Josie: About when was that?

Rachel Barkow: That would have been hundreds of years, you know, like about a hundred years ago, 1900 ish, thereabouts, at least at the federal level. So when we see parole come along, the idea that you could go seek relief from a parole board, takes some of the pressure off of governors, and you’ll still see in some states today they have a board that both does parole and clemency, which just shows you the unity between those two things. But when parole starts to fall out of favor, you know, in the 1970s and gets eliminated at the federal system in the mid 1980s what we don’t see is clemency come back. You know, at that point parole is off the table, but you don’t see a corresponding increase in clemency and it really corresponds with a drop off in clemency grants more broadly. I’d say that’s the kind of the second big movement in terms of seeing the decline in clemency. So the first one is this idea that there’s an alternative mechanism, so we’re still gonna recognize that you need to get relief over time from sentences but the second period I would say is really that rise in tough on crime politics that we see in the 1980s and that’s the next kind of big cliff in giving clemency grants. So you see that across states and at the federal level as well. Just a really big dip in the numbers of grants. And it’s the same political climate that causes politicians to worry about having a furlough program like the one that involved Willie Horton. It’s the same kind of dynamic where there’s a worry that if you were to give commutation, if you were to reduce somebody’s sentence and then they were to be released and commit some high profile crime, that blame would ultimately be cast upon the governor or the president that gave the grant. So there’s this political climate that makes it riskier or perceived to be riskier to give people clemency. And as a result of that, you see this decline nationwide because I think that political dynamic exists nationwide, but there is something specific to the federal system that also leads to a decline in the federal numbers that doesn’t necessarily apply, you know, in other states and that would be that around that same time, the authority for clemency had been in the Department of Justice, but it was the attorney general who was responsible for it. And what happens is that shifts to the deputy attorney general. And the reason that some people think that matters is because the deputy attorney general at the Department of Justice is the person who’s basically the head criminal prosecutor, supervises the criminal prosecutions around the country. And so putting clemency within the same portfolio as the person who’s in charge of all criminal prosecutions doesn’t create an ideal climate for having that person be very pro-clemency. You know, they would have effectively supervised all those prosecutions. So the idea that they’re in a good position to then say, actually that sentence is too long and it needs to be reduced, you know, that’s not a great institutional setup. So I think that institutional shift is another reason why some people have said the federal system numbers decline right around the presidency of Reagan and thereafter. But you know, it’s probably more a political dynamic. And I think that’s why we see it at the state level. But it’s worth mentioning that there was this institutional change at DoJ as well.

Josie: That’s so interesting.

Clint: You mentioned that parole was abandoned on the federal level. Can you talk a little bit about that and what the sort of catalyst to that decision was? Is that tied to the sort of larger political paradigm at that moment in which tough on crime and Willie Horton is at the forefront of the political discourse?

Rachel Barkow: Yeah, so we’re in the mid 1980s and there’s the tough on crime politics and this idea that we need sentencing reform and we need truth in sentencing. And the idea of truth in sentencing is that with parole you don’t really know what kind of sentence somebody is going to get. You might hear that someone, oh that person got, you know, three to five years. Well which is it? Is it three, is it five?

Josie: Right.

Rachel Barkow: And so there’s a push to get transparent, clear sentencing and the Sentencing Reform Act, which passes in 1984, has both the creation of a sentencing commission that’s ultimately going to produce sentencing guidelines that are going to be quite tough and it eliminates parole in the federal system. But the impetus for doing that would have been the same kinds of things that promoted tougher and longer sentences. So there’s a sense that people should serve real time, that we should know exactly what sentence they’re getting from the outset. And there was some concern on the left about discriminatory parole grants, just like we saw with the creation of the sentencing commission and the idea that guidelines might create more equitable sentences and we wouldn’t see as much disparity among judges, there was this sense that the parole board and parole grants also were discriminatory in application. So you had that same kind of combination of the left worried about the discrimination and application and the right concerned about sentences being too light coming together to create a bigger reform package. But that package would ultimately lead to more severe sentences for pretty much everybody.

Clint: It sounds like that’s the same, sort of similar interest convergence that happened around mandatory minimums.

Rachel Barkow: Yes. And that’s all happening in the 1980s as well. So at the same time that Congress is contemplating this big overhaul of federal criminal justice creating a sentencing commission, abolishing parole, and it’s supposed to be that the sentencing commission is going to be the expert body that’s going to set all the sentences. At the same time that that’s happening, before the commission even gets to pass their first set of guidelines, Congress goes ahead and passes mandatory minimums on its own. So without even waiting to see what would be the right sentence for certain things, they just decide to usurp that authority right off the bat and set mandatory minimums and then that in turn affects what the Sentencing Commission will do later. So it’s, it’s all part of that same political climate that is very much seeking to respond to public concerns with crime or perceived concerns with crime, media attention to high profile crime, the war on drugs, you know, it’s all part of that same kind of cauldron in the 1980s. President Reagan’s commitment to being tough. We see all that happening at one point in time.

Josie: Wow, that’s such great context. I didn’t realize that about them passing the mandatory minimums before Sentencing Commission could even make a recommendation. So I wanted to talk about, because I’ve heard you talk about this before, just about how difficult it is to get pardoned, to get your sentence commuted and what kind of a process looks like. If I’m a defendant in federal, so, you know, serving time in the federal system, what typically happens between the point of me being sentenced and the president actually commuting my sentence or pardoning me?

Rachel Barkow: Yeah, it’s a doozy. So you’re going to go through seven layers of review. So the first thing you’re going to do is you’re going to file your petition with the Office of the Pardon Attorney and your petition will go to a line assistant in that office to review it. And if they aren’t favorable toward a grant, you know, it will probably die at that stage of the review. But, you know, if they see something there that makes them think it should go forward, it would then go to the pardon attorney. And then if the pardon attorney thinks there’s something to it and again could decide, ‘yeah, no, not really, this is a no,’ and again, at each stage of the process, if the person who’s reviewing it says no, that probably means the end of your chances. So you’re going to have to run the gauntlet seven times to get all the way through to the president.

Josie: And all of these people are within the Department of Justice?

Rachel Barkow: Yes. So the Office of the Pardon Attorney is within the Department of Justice. Oftentimes they are people who may have prosecution experience themselves, but they are certainly within the rubric of the Department of Justice. So the nations office of prosecutors. So you will seek your petition from them and then you’d have to get through that first level line attorney and then the pardon attorney and assuming you make it through that process and in the course of doing that, by the way, if they were inclined to be favorable to you and think about a grant, before they did that, they would go and request the views of the prosecutor who brought your case. So they would go to the US Attorney’s Office where your case had been brought and say, ‘hey, what do you think?’ And now remember that’s the prosecutor who thought it was a good idea to prosecute and seek whatever sentence it was. So, you know, built into this process from the get go is a request for information from the very person who brought the case and you know, it would really take a kind of Herculean ability to disassociate yourself from having brought the case to then reflect on it later objectively. But that’s what they do. They ask this prosecutor and then they, if for some reason, and it’s rare, it is really rare for a prosecutor to say ‘yes, I think this person should get a reduced sentence,’ you know, it’s usually they say ‘absolutely not.’ You know, ‘that’s why we sought the sentence we did is because this person is involved in you know, serious drug trafficking or they had a serious arrest record’ or whatever it is they say. They often just say no, but if you somehow make it through that stage, the next place you would go would be to a lawyer in the Deputy Attorney General’s Office. So you’re still within the Department of Justice but you’re moving around the building now, your papers are, and it was a paper system by the way. There’s like a actual folder that makes its way around as opposed to electronic.

Clint: And just to clarify, so you don’t even move to this part of the process unless the prosecutor who brought your case in the first place has had a 180 degree ostensibly change of heart to decide that the charges that they at first brought against you are no longer applicable in the same way. Still to even begin the process, you have to move past that phenomenon.

Rachel Barkow: That’s correct. Or if the pardon attorney, in spite of what the prosecution says, believes there’s a strong enough case to go forward. But that’s pretty rare. They’re pretty deferential to the prosecutor who brought the case. So, you know, effectively it’s a pretty powerful veto but it doesn’t absolutely amount to that. There are some instances where the prosecutor may say no but the case will go forward. But it takes a lot to overcome that. And I can give you some examples of that from the Obama Clemency Initiative, but it’s something like that where the president has indicated that he is really interested in clemency grants. But in your kind of day to day operation of the pardon attorney’s office, that prosecutors view is going to be given great deference. So you can see why there are going to be so few grants. But if you do make it through that first stage, the next place you go after going through the pardon attorney’s office would be to the Deputy Attorney General’s Office, to a lawyer there. And if the lawyer there thinks that the petition has merit, it would then go to the deputy attorney general. So here you also have to keep in mind the deputy attorney general is a very busy person and it’s not as if clemency is necessarily top on the list of priorities. So there is often a backlog there to get the deputy attorney general tell, you know, focus and review all these things. And we definitely know that there have been instances where even when the pardon attorney says ‘yes, we think this is a good case for a grant,’ if the deputy attorney general says no, that too is another place where petitions have gone to die. That happened a lot during the Obama administration before it came to light that that was happening. At which point they changed their practice and previously what they had done is if the deputy attorney general said no, they just weren’t letting the White House know that the pardon attorney had recommended a positive grant. They were just hearing the, the deputy attorney general said no. That came to light so there was a little bit of press attention to it and they shifted their practice and sent the applications over to the White House with an indication that the pardon attorney had recommended a grant but the deputy attorney general had said no. So you go through those four layers of review in the Department of Justice. If you make it out from there, the next place you go is to the White House Counsel’s Office within the Executive Office of the President and one of the, you know, deputy White House counsel, one of the lawyers there, would take a look at the petition and then if they thought there was something to it, it goes to the White House counsel. Again, another really busy person with a huge portfolio of which clemency is going to be really low down the list of things that they’re going to prioritize.

Josie: Right.

Rachel Barkow: And then if the White House counsel thinks it’s a good idea, then it gets on the desk of the president and then the president would still have to decide to grant. So you can see this is a huge bureaucratic maze of, you know, seven different people evaluating this and really just lots of points at which someone could say no and it probably dies at that point.

Clint: I’m just curious, how likely is it that a commutation request would end up on the president’s desk without people already having a sense of whether that president will sign it or not? Like is it possible that something would ever end up on Obama’s desk and have made it through all of those various obstacles that you’ve outlined and that he would say, ‘actually, no, I don’t think this person should be let out.’ Because intuitively I would think that people have a sense of whether or not he would sign it in the first place. And I guess I’m curious, have there been examples of the case where a clemency request has made it all the way through the bureaucratic process and ended up on the president’s desk and the president said, ‘no, actually I’m not going to do this?’

Rachel Barkow: Yeah, I’m not sure cause I don’t know, we don’t have access to those internal deliberations. None of this is transparent. So there would be no way to know unless somebody told that story and I’m just not aware. But I can tell you that what presidents typically do is let it be known what their priorities are. So it was certainly the case that President Obama made clear the kind of cases he was interested in. He ultimately made that quite formal with an announcement by the deputy attorney general of six specific criteria of cases that he was interested in looking at. So those kind of instructions would be very specific, but you don’t necessarily have to have that kind of formality for a president to indicate, you know, in general these are the kinds of cases I’m interested in. You know, it would be really hard to figure out what that is in the current administration, you know, it’s hard to draw any kind of pattern from the grants that we’ve seen so far. So I would bet it’s more difficult for the current pardon attorney folks to figure out what they should be looking for unless they’ve been given instructions that we just don’t know about.

Clint: Or unless Kim Kardashian gives them a call.

Rachel Barkow: That is another way that you can get clemency currently.

Josie: (Laughs.)

Clint: So for my work, I spent a lot of time in prisons and jails and, and spent a lot of time with folks who were sentenced to juvenile life without parole and life without parole. And it’s been interesting over the past year of my sort of research for my dissertation and part of what I’ve found is that even for folks who are sentenced to life without parole, there is still something that allows them to maintain even the slightest semblance of hope, is this idea that if they behave well enough, if they get enough education, if they’re participating in enough programs, if they can demonstrate enough good behavior and good time and sort of exemplary behavior while incarcerated, that maybe the governor or maybe the president will commute their sentence. And it’s interesting because I never thought about the existence of commutation as a source of hope and as a sort of final thing that even when everything else is gone, even when it feels like you can’t appeal your case anymore, even when you’ve been sentenced to life without parole, that there was this one thing that might provide someone who is incarcerated with the hope and the slightest sense of optimism to keep going. I’m, I’m curious, do you think that commutation as it exists has a role beyond the commutation itself? If that makes sense. It’s sort of the idea of what commutation as a policy represents regardless of if someone is going to materially be released from prison or not.

Rachel Barkow: I mean, I think it can serve that motivating function for people so they don’t lose all hope. Although I have to say, one of the things that I’ve found so discouraging in my work in this area is when I think that there’s been someone like President Obama for example, who makes it quite specific, the kinds of people that he wants to give grants to and that does create hope in those people because they can say, ‘oh, these are six criteria and I can self evaluate and I know that I meet them’ and then to have those folks get denied after that to me was one of the biggest tragedies that had happened. I just felt like that was another great injustice to those people because they legitimately got their hopes up and really frankly should have and then only had them dashed afterward. So it could serve that function and I guess it’s a question of whether it’s good or bad, may depend upon what those expectations that they have are. I think in some places where governors don’t say anything and it’s really just this kind of very faint notion of at least the possibility and they haven’t made kind of any more specific statement than that. If it helps people to kind of get through the day and to motivate and still see a purpose, I think that’s all to the good. But I think it should be more than that. I do think it should be more than just this kind of potential thing that’s out there. I think it should be an actual thing that people get because we give really long sentences in the United States to people. And as you pointed out the group that you work with to very young people and the idea that you could sentence somebody who is, you know, 21, 22 years old for 50 years and never look again to see whether that makes sense either because that person has changed dramatically or because we as a society have changed. You know, we’ve changed our views on whatever the underlying criminal conduct was or we’ve just changed our views on the social circumstances surrounding that person’s commission of the crime. You know, to me that’s just messed up. So we should reevaluate things. We certainly do that in our own personal lives. You know, I don’t think we would pass a judgment on a human being in our life and kind of never revisit it no matter how much they had changed. So the idea that our penal system wouldn’t do that to me is crazy. So I like the idea of clemency as a potential source of hope, but I think it should be way more than that. I think it should be fully functioning as a second look mechanism to recognize when people and circumstances change.

Josie: You know what you just said about Obama and how heartbreaking it was to watch people who did fit these qualifications not actually get their sentences commuted or get a pardon, I think Obama is perceived by so many as having been really generous in this field of having commuted a lot of sentences, pardoned a lot of people and I recognize that among a lot of people who work in criminal justice reform, the perception is quite different. How do you see what he did? Do you feel like he actually was as generous as he is perceived to have been? Or what is kind of your hindsight look at the Obama commutation process?

Rachel Barkow: I mean, I have mixed views honestly. I’m grateful that he made it a priority to think about people’s sentences and that he granted commutations to, you know, roughly 1,700 people. I think that should be applauded and I’m glad that he did it, but, and it’s a pretty big but, you know, the way that he set this up, as he said, he wanted to grant clemency to people who met these criteria, which were basically, they wouldn’t get the same sentence today, they didn’t have violence in their background, they didn’t have problems with their prison record and no significant criminal history. You know, basically the criteria were about that. And if you were to really conservatively look at how many people met the stated criteria, there would have been about, according to a Sentencing Commission report, about 2,700 people who fit that bill really conservatively defined mind you, it’s thousands more if you are more expansive in how you define those things. But taking the narrowest definition, it’s about 2,700 people. And of those people, 3 percent got it. So I view that as an epic failure because again, I think those people legitimately had expectations they’d get the grant once this was announced and then they didn’t. And then they saw other people getting grants because, you do your math quickly, he gave about 92 people of the people who received clemency, met the criteria, which means, you know, there were about 1,600 people who really didn’t fall squarely within the criteria. Now I still think they deserved it. So I’m not criticizing those grants. I’m more concerned with the people left behind. But I also think looking at the people who did get it also show us another deficiency with the way this was all set up, which was the way the criteria were defined at the outset, you know? So, first of all, it was this idea you’d have to be sentenced differently today, which suggests that none of our existing sentencing laws that haven’t been changed could yield unjust sentences, which, you know, anyone who works in the system knows that’s not true. There’s all kinds of people serving excessive sentences and still getting them today because we have a lot of laws on the books that are just frankly too harsh and too harsh in application. So that was overly limiting. And then this notion that they couldn’t have any significant criminal history or any kind of violence, you know, I think that too was just overly restrictive of the kinds of people that you’d want to give commutations too. You know, again, even if you had some of those things in your past that doesn’t tell us what kind of person somebody is today. And I think once they started reviewing the applications, they realized that. And I think that’s how you get 1,600 people who frankly don’t squarely meet the criteria because I think it’s more a reflection of how narrow and artificial those criteria were. But at the same time, you know, this process should have been able to capture those people plus all the people who squarely met the criteria, you know, plus tons more. So I hate to be this kind of glass is half empty kind of person and I know it sounds that way, but I really do think this was in that sense of very big failure and I, it really was very painful to hear about the people who thought they were going to get this and then find that the end of the Obama administration came and they got either denials or their petition was just never acted on. And you know, that’s thousands of people who to my mind now suffer their second great injustice at the hands of criminal justice administration. The first they had to deal with the sentence in the first place, but now this idea that their hopes had gotten up and then they didn’t get it. So I think it’s appropriate to criticize that. And one of the reasons I think it is is because I think, you know, we’ll have future presidents who may look at that and wonder is that a model or not? And I would want them to not look at that as the model of what to do going forward because I do think it failed in what it set out to do.

Clint: Is there any transparency around why someone, under the Obama administration specifically, why someone who would’ve met all six of those criteria was denied the commutation or, or didn’t even have their commutation reviewed?

Rachel Barkow: Yeah, it’s just radio silence or you get the denial. So we had a little clemency pop up that operated here out of NYU with, you know, about 94 of the people that we worked with did get grants. But then we had just as many clients who did not. And you couldn’t make any sense out of who did versus who didn’t. There was no rhyme or reason to the people who got grants versus the people who were denied versus the people who never heard back. And we couldn’t make any sense of it from our client pool. We could not distinguish the 94 people who got yeses from the many more who were waiting to hear answers or who got a no. And, you know, I think a good example of that, just to give you a high profile example would be Alice Marie Johnson. She was denied under the Obama Clemency Initiative. And I think when people hear about her case now and follow her, that’s a good example to say really, how did you deny that? You know, why, why would that not be an example of somebody who merited a clemency grant? But you know, she was a deny and there were many other cases like hers, you know, cases as sympathetic, more sympathetic, where there was just no explanation and you couldn’t figure it out. Like I said, there were some rumors around some of these things. And, uh, one of the factors we would hear a lot would be the prosecutor in the case said no. And they were really adamant about it. And sometimes when they said no, they would say things like, ‘oh, this person has done a lot worse than what you’re seeing in front of you,’ you know, ‘we had heard this person had a prior arrest for domestic violence’ or ‘we heard that the person had X.’ So there was also this idea of some of the denials maybe, uh, were about reputational claims that prosecutors were making maybe outside the record of what was actually before the decision makers. You know, it’s hard to know cause these really were just the kinds of things we were hearing casually, but you wouldn’t be able to figure it out just by looking at the files. Certainly not the files of our clients. It was mystifying.

Josie: The point about Alice Marie Johnson, because I felt like that was, when Trump pardoned her, my first kind of thought was like, how could she have possibly not been pardoned under Obama? Which I think you’ve laid out how difficult this process is. There’s also this other side of it, right? Which are these like famous, questionable pardons like Dinesh D’Souza or Joe Arpaio or Scooter Libby and this idea that you’re pardoning your friends or your commuting your friends’ sentences or you’re making it clear that people can get away with a different sort of crime, a different sort of wrongdoing as long as you’re in the White House. Do you think that these have had an impact on the way people view this power and the importance of it?

Rachel Barkow: Yeah, I think it’s terrible when we have just the kind of high profile and connected are the people who get clemency grants and, and, you know, to President Obama’s credit, you know, to make sure that he gets credit in the areas where I think he did an exceptionally good job is his process was not like that at all. There was absolutely no indication of preferential treatment for anyone with any kind of connection. That process was truly, you know, kind of a Rawlsian veil of just looking at the applications and not who those people happen to know. And that was a big departure from what we had seen previously. And what we’ve seen since. And you know, there was a really good ProPublica study of clemency that Dafna Linzer did where she, this was before the Obama administration had looked at clemency grants, and had shown that the kind of key variable in whether or not you were going to get a grant was whether you had somebody in Congress who was pulling for your application to get a grant. And of course when it’s based on those kinds of connections, it’s not going to be surprising that we’re also going to see enormous racial bias in terms of what the grants look like. So she found you were four times as likely to get a pardon if you were white. So that kind of who you know process is going to have all kinds of implications for racial discrimination, probably social class as well. And so I do think that really calls people to question, you know, what kind of a process is this as opposed to it being something that should be available for everyone that shows people change over time, what we think about sentencing changes over time and it should be made available to all. Then it starts to look like this kind of corrupt backroom process that casts a shadow on its use really in any circumstance. So I think it’s terrible when it’s used that way.

Clint: Pivoting just a little bit, you have a remarkable bio and it’s clear, you know, you graduated from Harvard at the top of your class, you were on the Law Review, you were the, I think had one of the top two GPAs at Harvard Law School, which sounds amazing and exhausting to me.

Josie: I can tell you that I was not, I did not have one of the top GPAs in my Harvard Law School class. (Laughs.)

Clint: And something that’s also super fascinating is that you were a clerk for Justice Scalia and I read that you were a quote “counter clerk” among his clerks who was meant to sort of ensure that there was not at a sort of political bias that was injecting itself into the way that he and the sort of ecosystem around him wasn’t overly partisan in the way they thought about cases. And, and so I’m just kind of curious personally what it was like to work for Justice Scalia and how you navigated your own political commitments and your own orientations around justice in that sort of space?

Rachel Barkow: Sure.

Josie: Yeah. And can I just add it also be great to hear about how that influenced the way that you think about the criminal justice system. I personally don’t think Scalia gets enough credit on some of the good criminal justice stuff he did and I’d be interested to hear what your experience was like.

Rachel Barkow: So I should say at the outset that I don’t know that I was hired as the quote unquote “counter clerk.” I mean it’s true, I am a Democrat and I was hired by him, but it’s not like, you know, on the interview there’s a special box that says, ‘could I be the counter clerk?’ I was just hired and it was a really great experience. I think one of the things that I like most about having done that was to see how many areas he and I saw eye to eye, particularly when it comes to criminal justice. I’ve always been interested in that. So when I was a law clerk, those were the cases I wanted, I wanted all the criminal and administrative law cases. So particularly the administrative law cases were really easy to get from my co clerks. But, but I got a good share of the criminal ones too. And what was so interesting to me is really the way in which we saw them quite similarly. And I think it reflects this broader sense that I see really right now in society where there’s a lot of folks on the right who see the operation of the administration of criminal justice right now in America for what it is, which is a big, bloated, ineffective government program that doesn’t work, that’s not accountable, that costs a fortune, that ruins people’s lives, that gets all in people’s business and really has nothing to say for it. So if you kind of have those instincts about government writ large, absolutely you’re going to have it about criminal justice. And I think if you have those kind of libertarian sensibilities where you’re not trusting of government in all ways, then you’re going to be really suspicious when it’s using its powers to put people in cages. So that was something that kind of, I think he came there from his constitutional commitments to originalism and interpreting statutes according to their text. But when you do that, you find, you know, the framers were quite concerned about the government’s power in criminal cases. If you look at the Bill of Rights, all over it is concerns with the operation of power in criminal matters. You know, that’s like a big chunk of those amendments. And if you are a textualist and you insist that statutes be read according to their text and not broadly, that means that you’re not going to give the government so many breaks in criminal cases, which he didn’t. You know, he was kind of the biggest rule of lenity guy on the court. And so it’s heartening actually to think about things that way. And even now I work in the reform space and I talk to people on the left and the right and I think there’s a lot of common ground there that, that people have come together to recognize that for a variety of different reasons, the way we pursue criminal justice in America today is just really messed up. And so, you know, you could get there by looking at racial inequality and class inequality and the way we kind of shuttle lots of social problems into criminal justice, but you can also get there because you recognize that this is the government and the government often doesn’t do things well. And, you know, this is an area where you can see that all over the place.

Josie: So your new book just came out on March 4th, it’s called Prisoners of Politics: Breaking the Cycle of Mass Incarceration and it deals with the criminal justice system still, but a much bigger look at it and not just from the perspective of clemency. So can you talk to us about your book? Tell us about it and how it relates to your past work on clemency?

Rachel Barkow: Sure. Thank you for the opportunity to do that. I would say that, you know, clemency is a microcosm of some of the themes in the book that I explore, which is, you know, this idea that we set our policies in criminal justice based on cases and the fear of cases going wrong and it’s really story driven. You know, when you go to law school and you have your professors say that bad facts make bad law, that is pretty much the way we make criminal law. Just a lot of bad facts making a lot of bad law and it’s because we have a political process that is just generated by concerns with what’s on the media and what gets the focus in the press. And there’s really no accountability for any of those decisions. And it’s, you know, you can look at it across a range of areas, which I do in the book, starting from how we define crimes in the first place. One of the things you guys do that I think is great is take those terms that exist that really need to be unpacked and if only our legislators would do that, but you know they don’t. So we have these really overbroad criminal laws. We set sentencing policy in ways that are irrational. We fail to take second looks at sentencing so I do have a chapter on clemency. We don’t offer programming in prisons or do the kinds of things we would want to do to set people up to succeed when they come out. We impose all these collateral consequences that similarly make it hard for people to reintegrate. So all these policies that end up undermining the goal of trying to promote public safety because we’re setting people up to fail and we’re not making the most of our limited resources. So what I try to do in the book after describing those is explain the political dynamics that produce them and then offer some institutional solutions that would hopefully get us on a path to making better decisions. Because I really do think this is one of those spaces where we are getting the worst of all worlds, and if people could just step back and assess this more rationally, we would see that we could actually get both better public safety outcomes and we could treat people more equally and more decently, and we would get both of those things. But what it’s going to take is to overcome this political irrationality that we see everywhere.

Josie: Wow, that’s, that was awesome.

Clint: Yeah, and I think that that’s a fantastic place to end. I hope that everyone will be going to buy your book. I know that I will, and we just want to thank you so much for coming on the show and sharing so much context with us, so much of your knowledge and expertise with us and I’m sure that this is not the last we’ll see of you.

Rachel Barkow: Well thank you so much. I’m a devote listener so it won’t be the last that I hear from you guys. So thank you.

Clint: Much appreciated.

Josie: Thank you so much Rachel.


Josie: That was NYU Law Professor Rachel Barkow, thank you so much for joining us.

Clint: Thanks for listening to Justice in America. I’m Clint Smith.

Josie: I’m Josie Duffy Rice.

Clint: As always you can find us on Twitter at @justice_podcast, like us on Facebook page at Justice in America and subscribe and rate us on iTunes or wherever you listen.

Josie: Justice in America is produced by Florence Barrau-Adams. The production Assistant is Trendel Lightburn. Thank you so much and join us next week.