Oversight Hearing on Clemency and the Office of the Pardon Attorney — House Judiciary Subcommittee (May 19, 2022)
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Oversight hearing on Clemency and the Office of the Pardon Attorney before the Subcommittee on Crime, Terrorism, and Homeland Security of the Committee on the Judiciary, U.S. House of Representatives, on Thursday, May 19, 2022. Opening statements come from Sheila Jackson Lee, Andy Biggs and Jerrold Nadler. Panel I is Ayanna Pressley, a Member of Congress; Panel II witnesses include Mark Osler, Rachel E. Barkow, Morris Murray, Nkechi Taifa, Andrea C. James, Jason Hernandez and William Underwood. The contents also list articles and reports submitted for the record, and the hearing ends with remarks that the clemency and pardon process needs reform.
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“Oversight Hearing on Clemency and the Office of the Pardon Attorney — House Judiciary Subcommittee (May 19, 2022).”
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OVERSIGHT HEARING ON CLEMENCY AND
THE OFFICE OF THE PARDON ATTORNEY
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM,
AND HOMELAND SECURITY
OF THE
COMMITTEE ON THE JUDICIARY
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTEETH CONGRESS
SECOND SESSION
THURSDAY, MAY 19, 2022
Serial No. 117–69
Printed for the use of the Committee on the Judiciary
(
Available via: http://judiciary.house.gov
U.S. GOVERNMENT PUBLISHING OFFICE
48–949 WASHINGTON : 2022
COMMITTEE ON THE JUDICIARY
JERROLD NADLER, New York, Chair
MADELEINE DEAN, Pennsylvania, Vice-Chair
ZOE LOFGREN, California JIM JORDAN, Ohio, Ranking Member
SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
STEVE COHEN, Tennessee LOUIE GOHMERT, Texas
HENRY C. ‘‘HANK’’ JOHNSON, JR., Georgia DARRELL ISSA, California
THEODORE E. DEUTCH, Florida KEN BUCK, Colorado
KAREN BASS, California MATT GAETZ, Florida
HAKEEM S. JEFFRIES, New York MIKE JOHNSON, Louisiana
DAVID N. CICILLINE, Rhode Island ANDY BIGGS, Arizona
ERIC SWALWELL, California TOM MCCLINTOCK, California
TED LIEU, California W. GREG STEUBE, Florida
JAMIE RASKIN, Maryland TOM TIFFANY, Wisconsin
PRAMILA JAYAPAL, Washington THOMAS MASSIE, Kentucky
VAL BUTLER DEMINGS, Florida CHIP ROY, Texas
J. LUIS CORREA, California DAN BISHOP, North Carolina
MARY GAY SCANLON, Pennsylvania MICHELLE FISCHBACH, Minnesota
SYLVIA R. GARCIA, Texas VICTORIA SPARTZ, Indiana
JOE NEGUSE, Colorado SCOTT FITZGERALD, Wisconsin
LUCY MCBATH, Georgia CLIFF BENTZ, Oregon
GREG STANTON, Arizona BURGESS OWENS, Utah
VERONICA ESCOBAR, Texas
MONDAIRE JONES, New York
DEBORAH ROSS, North Carolina
CORI BUSH, Missouri
AMY RUTKIN, Majority Staff Director and Chief of Staff
CHRISTOPHER HIXON, Minority Staff Director
SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY
SHEILA JACKSON LEE, Texas, Chair
CORI BUSH, Missouri, Vice-Chair
KAREN BASS, California ANDY BIGGS, Arizona, Ranking Member
VAL DEMINGS, Florida STEVE CHABOT, Ohio
LUCY MCBATH, Georgia LOUIE GOHMERT, Texas
MADELEINE DEAN, Pennsylvania W. GREGORY STEUBE, Florida
MARY GAY SCANLON, Pennsylvania TOM TIFFANY, Wisconsin
DAVID CICILLINE, Rhode Island THOMAS MASSIE, Kentucky
TED LIEU, California VICTORIA SPARTZ, Indiana
J. LUIS CORREA, California SCOTT FITZGERALD, Wisconsin
VERONICA ESCOBAR, Texas BURGESS OWENS, Utah
STEVE COHEN, Tennessee
KEENAN KELLER, Chief Counsel
JASON CERVENAK, Minority Counsel
(II)
C O N T E N T S
THURSDAY, MAY 19, 2022
Page
OPENING STATEMENTS
The Honorable Sheila Jackson Lee, Chair of the Subcommittee on Crime,
Terrorism, and Homeland Security from the State of Texas ........................... 2
The Honorable Andy Biggs, Ranking Member of the Subcommittee Crime,
Terrorism, and Homeland Security from the State of Arizona ........................ 13
The Honorable Jerrold Nadler, Chair of the Committee on the Judiciary
from the State of New York ................................................................................ 14
WITNESSES
PANEL I
The Honorable Ayanna Pressley, Member of Congress from the State of
Massachusetts
Oral Testimony ..................................................................................................... 15
Prepared Statement ............................................................................................. 18
PANEL II
Mark Osler, Robert and Marion Short Distinguished Professor of Law, Uni-
versity of Saint Thomas School of Law
Oral Testimony ..................................................................................................... 22
Prepared Statement ............................................................................................. 25
D. Michael Hurst, Jr., Partner, Phelps Dunbar LLP
Oral Testimony ..................................................................................................... 32
Prepared Statement ............................................................................................. 34
Rachel E. Barkow, Vice Dean and Charles Seligson Professor of Law; Faculty
Director, Center on the Administration of Criminal Law; NYU School of
Law
Oral Testimony ..................................................................................................... 43
Prepared Statement ............................................................................................. 45
The Honorable Morris Murray, Prosecuting Attorney, Defiance County, Ohio
Oral Testimony ..................................................................................................... 57
Prepared Statement ............................................................................................. 59
Nkechi Taifa, Founder, Principal and CEO, The Taifa Group LLC
Oral Testimony ..................................................................................................... 61
Prepared Statement ............................................................................................. 63
Andrea C. James, Founder and Executive Director, The National Council
for Incarcerated and Formerly Incarcerated Women and Girls
Oral Testimony ..................................................................................................... 76
Prepared Statement ............................................................................................. 78
Jason Hernandez, McKinney, Texas
Oral Testimony ..................................................................................................... 90
Prepared Statement ............................................................................................. 92
William ‘‘Bill’’ Underwood, Senior Fellow, The Sentencing Project
Oral Testimony ..................................................................................................... 97
Prepared Statement ............................................................................................. 99
(III)
IV
Page
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Materials submitted by the Honorable Sheila Jackson Lee, Chair of the Sub-
committee on Crime, Terrorism, and Homeland Security from the State
of Texas, for the record
An article entitled, ‘‘We Know How to Fix the Clemency Process. So Why
Don’t We?’’ New York Times ........................................................................... 6
A report entitled, ‘‘The Role of Clemency in Criminal Justice Reform, 2022,’’
Federal Sentencing Reporter ........................................................................... 9
An article entitled, ‘‘Michelle Miles,’’ Nation of Second Chances, submitted
by the Honorable Mary Gay Scanlon, a Member of the Subcommittee on
Crime, Terrorism, and Homeland Security from the State of Pennsylvania,
for the record ........................................................................................................ 160
An article entitled, ‘‘Ross Ulbricht Case Overview,’’ freeross.org, submitted
by the Honorable Thomas Massie, a Member of the Subcommittee on
Crime, Terrorism, and Homeland Security from the State of Kentucky,
for the record ........................................................................................................ 172
Materials submitted by the Honorable Sheila Jackson Lee, Chair of the Sub-
committee on Crime, Terrorism, and Homeland Security from the State
of Texas, for the record
An article entitled, ‘‘Anthony Robinson,’’ The National Registry of Exonera-
tions ................................................................................................................... 176
An article entitled, ‘‘Michelle Miles,’’ Nation of Second Chances ..................... 178
An article entitled, ‘‘Pedro Torres,’’ The National Registry of Exonerations .. 184
An article entitled, ‘‘Waylon Wilson,’’ Nation of Second Chances .................... 185
QUESTIONS AND RESPONSES FOR THE RECORD
Response to questions from Nkechi Taifa, Founder, Principal and CEO, The
Taifa Group LLC, submitted by the Honorable J. Luis Correa, a Member
of the Subcommittee on Crime, Terrorism, and Homeland Security from
the State of California, for the record ................................................................ 202
Response to questions from Rachel E. Barkow, Vice Dean and Charles
Seligson Professor of Law; Faculty Director, Center on the Administration
of Criminal Law; NYU School of Law, submitted by the Honorable J.
Luis Correa, a Member of the Subcommittee on Crime, Terrorism, and
Homeland Security from the State of California, for the record ...................... 203
Response to questions from William ‘‘Bill’’ Underwood, Senior Fellow, The
Sentencing Project, submitted by the Honorable J. Luis Correa, a Member
of the Subcommittee on Crime, Terrorism, and Homeland Security from
the State of California, for the record ................................................................ 204
OVERSIGHT HEARING ON CLEMENCY AND
THE OFFICE OF THE PARDON ATTORNEY
Thursday, May 19, 2022
HOUSE OF REPRESENTATIVES
SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY
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. Sheila Jackson Lee
[Chair of the Subcommittee] presiding.
Members present: Representatives Nadler, Jackson Lee, Scanlon,
Bush, Cicilline, Lieu, Correa, Biggs, Gohmert, Tiffany, Massie, and
Owens.
Staff present: Aaron Hiller, Chief Counsel and Deputy Staff Di-
rector; John Doty, Senior Advisor and Deputy Staff Director; David
Greengrass, Senior Counsel; Moh Sharma, Director of Member
Services and Outreach & Policy Advisor; Brady Young, Parliamen-
tarian; Cierra Fontenot, Chief Clerk; Merrick Nelson, Digital Direc-
tor; Mauri Gray, Deputy Chief Counsel for Crime; Nicole Banister,
Counsel for Crime; Veronica Eligan, Professional Staff Member/
Legislative Aide for Crime; Jason Cervenak, Minority Chief Coun-
sel for Crime; Michael Koren, Minority Professional Staff Member;
Andrea Woodard, Minority Professional Staff Member; and Kiley
Bidelman, Minority Clerk.
Ms. JACKSON LEE. [Presiding.] The Subcommittee will come to
order.
Without objection, the Chair is authorized to declare recesses of
the Committee at any time.
Good morning and welcome to today’s oversight hearing on
‘‘Clemency and the Office of the Pardon Attorney.’’
I would like to remind Members that we have established an
email address and distribution list to circulate exhibits, motions, or
other written materials that Members might want to offer as part
of our hearing today. If you would like to submit materials, please
send them to the email address that has previously been distrib-
uted to your offices, and we will circulate the materials to Members
and staff as quickly as we can.
I would also ask for all Members, both those in person and those
attending remotely, to please mute your microphones when you are
not speaking. This will help prevent feedback and other technical
issues. You may unmute yourself anytime if you seek recognition.
(1)
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Due to the size of our panels today, I will strictly enforce the
five-minute rule.
I now recognize myself for an opening statement.
During today’s hearing, the Subcommittee will examine Execu-
tive Clemency and explore solutions to improve the process of eval-
uating clemency petitions and making recommendations to the
President.
Although the authority to grant clemency vests solely with the
President, the Office of the Pardon Attorney, a unit within the De-
partment of Justice that is congressionally created and funded, aids
the President in the exercise of the clemency power through an ad-
ministrative process established by regulations that developed
somewhat haphazardly.
The rules, which were first promulgated by President McKinley
in 1898, provide that clemency petitions are to be directed to DOJ
and require the Attorney General to make a recommendation to the
President on the merits of those requests.
The relatively simple process for evaluating petitions and making
recommendations evolved during the 1970s and 1980s, and now, in-
clude seven levels of review, the first four of which reside within
the DOJ. The Office of the Pardon Attorney, under the direction of
the Deputy Attorney General, is responsible for processing peti-
tions for Executive Clemency, reviewing case materials, vetting pe-
titioners, and providing recommendations to the President. It is
where the clemency process begins and ends for some petitions.
Understanding the central importance of the Office of Pardon At-
torney to a discussion about clemency and our Committee’s over-
sight over both the Department of Justice and the Office of the
Pardon Attorney, I thought it best to have the Pardon Attorney
participate in our conversation today. It is unfortunate that we
were unable to reach an agreement with the Department of Justice
to have the Pardon Attorney here to discuss how we can efficiency
and account for and reduce bias in the clemency process because,
as the Supreme Court has noted, Executive Clemency serves a vital
role in the criminal justice system.
We know so many families that are struggling with loved ones
who deserve to have that consideration. So, I expect to have the
Pardon Attorney here in the very near future, singly in a hearing
or at a briefing before this Committee. It is imperative that all ele-
ments of this process come before this Committee for our appro-
priate oversight.
The Framers of the Constitution understood that the criminal
justice system needed a check that would guard against unjust or
excessive punishments. Clemency can be a useful tool to right the
wrongs of the failed war on many aspects of the criminal justice
system and overcome misguided policies that led to mass incarcer-
ation by unburdening those who languish in prison or who suffer
from the collateral consequences of their convictions. Certainly,
some of those were in the times of the excessive penalties for those
who had basic possession in terms of drug cases, minimal drug
cases with decades of sentencing and incarceration.
If that is to be the case, Congress should encourage the President
to use Executive Clemency and power routinely by fixing an appar-
3
ently broken system and providing the President with the support
he needs. That was done just a few weeks ago by President Biden.
Clemency decisions should be made objectively, systematically,
and with transparency. Yet, we know that the modern clemency
process cycles between periods of inaction and controversy, but
there have been a few instances in the exercise of Executive Clem-
ency that varied from what we have become accustomed and from
what we must learn.
In 1974, President Ford establishes a temporary Presidential
Clemency Board and identified more than 13,000 clemency recipi-
ents following the Vietnam War. Presidents Ford and Carter grant-
ed clemency to hundreds of thousands of men who evaded the
draft.
Then, in 2014, DOJ, at the behest of former President Barack
Obama, announced the Clemency Initiative which focused on non-
violent drug offenders, so many that were incarcerated for decades.
Despite initial problems in planning, implementation, and manage-
ment, through the initiative, DOJ substantially increased the num-
ber of recommendations to the White House, resulting in 1,696 in-
dividuals receiving clemency, appropriately so.
Significant changes, which we would make note of, were made in
the final year of the initiative that enabled DOJ to meet its goal
of making recommendations to the White House on over 13,000 pe-
titions. For example, DOJ temporarily increased staffing at the Of-
fice of the Pardon Attorney to meet the demands of the initiative.
The Office of the Pardon Attorney prioritized the review of peti-
tions from individuals who were strong candidates for clemency,
and DOJ streamlined the review process.
Taking lessons from Obama’s Clemency Initiative, we should con-
sider whether there are incentives or measures Congress can im-
plement to permanently streamline and shorten the timing of the
review process to avoid the dilemma President Biden currently
faces. I would have liked to ask the Pardon Attorney how she plans
to tackle the backlog of 15,000 clemency petitions President Biden
inherited upon taking office in an efficient and just manner or how
Congress can help.
We must also consider the longstanding criticism that there is a
merit conflict in the review process when it begins with DOJ if the
President is to make better use of the clemency power.
Since the Pardon Attorney is not here, I hope our Witnesses can
offer sensible solutions and proposals for reform of the clemency
process, as well as ways in which clemency can be used as the
Framers of the Constitution expected.
I thank each of our Witnesses for their participation. I look for-
ward to a robust discussion.
Without objection, I will submit into the record the following doc-
uments:
A New York Times guest essay written by Rachel E. Barkow and
Mark Osler entitled, ‘‘We Know How to Fix the Clemency Process.
So Why Don’t We?’’ dated July 13, 2021.
An entry from the Federal Sentencing Reporter, Volume 32, by
Mark Osler entitled, ‘‘The Role of the Clemency in Criminal Justice
Reform.’’
[The information follows:]
MS. JACKSON LEE FOR THE RECORD
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Ms. JACKSON LEE. Let me also thank my colleague and Vice
Chair, Congresswoman Cori Bush, for her interest in this hearing
and her invaluable help as we proceeded to have this hearing, and
as we proceed further to secure the Pardon Attorney.
Might I also mention with deepest sympathy to the families of
those lost in Buffalo, New York, and those lost to guns and hatred.
As we proceed in this hearing, I hope that we will find as many
facts as necessary to improve this process and to improve the crimi-
nal justice system.
I now recognize the gentleman from Arizona, Mr. Biggs, for his
opening statement.
Mr. Biggs, you are recognized.
Mr. BIGGS. Thank you, Madam Chair, and I appreciate you hold-
ing this hearing today.
Today’s hearing is entitled, ‘‘Oversight Hearing on Clemency and
the Office of the Pardon Attorney.’’ It is interesting and I appre-
ciate you reporting that you attempted to bring the new Pardon At-
torney to our hearing today. The new Pardon Attorney is Elizabeth
G. Oyer. She served 10 years as a Federal public defender, and I
look forward to hearing her in the future about the Pardon Attor-
ney’s position and her thoughts on the proposals that we are going
to hear today.
This hearing is actually just another in a series of hearings that
furthers the agenda of my friends on the other side of the aisle
with their intention of totally reforming the justice system, and
with some of their initiatives actually putting the public safety at
risk.
The first in this series was a hearing on ‘‘Controlled Substances,
Federal Policies, and Enforcement.’’ In that hearing, while arguing
for drastic reform of our drug laws, one of the majority’s Witnesses
likened our nation’s drug laws to Jim Crow laws.
When the Subcommittee held a hearing entitled, ‘‘From Miranda
to Gideon,’’ they called for pretrial reform. My colleagues on this
Subcommittee have some interesting—actually dangerous—ideas
about pretrial criminal justice reform. One of them introduced the
No Money Bail Act of 2021. This bill would eliminate bail in the
Federal system and withhold Federal grant money from States that
don’t eliminate their bail.
We have seen time and time again all over this country the dis-
astrous and deadly consequences of eliminating bail. At that hear-
ing, we heard from a grieving mother who lost her son because the
State of New Jersey implemented bail reform that allowed a con-
victed felon back out onto the street.
Next, we had another hearing on ‘‘Undoing the Damage of the
War on Drugs: A Renewed Call for Sentencing Reform.’’ This was
another hearing where the majority’s Witnesses called for decrimi-
nalizing drug possession for all drugs, and no matter how much
drugs that they had in their possession.
That brings us to today’s hearing on clemency. My reading of ar-
ticle II, section 2, is that the President has broad, broad authority
to grant reprieves and pardons for offenses. The President, ulti-
mately, makes the decision on how to reprieve or provide clemency,
and thus, the President actually has the opportunity—and, quite
frankly, I think has the obligation—to create the rubric for grant-
13
ing clemency and the standards that the President is going to look
at before granting reprieves, pardons, commutations, or clemency.
So, with that in mind, I don’t think anybody in the room doubts
the President has constitutional authority in this area, nor do we
think that the President’s authority to commute sentencing of drug
offenders is outside of the scope of the President’s authority. So, be-
cause the Constitution seems to vest that authority with the Presi-
dent, the rubric seems to also lie with the President.
Just because the President may commute such sentences does
not necessarily mean that the President should take action at all.
While such commutations do not raise constitutional concerns, they
certainly can raise public safety concerns.
During the last two years, the United States has seen a spike in
violent crime. In 2020, the United States tallied more than 20,000
murders, the highest total since 1995 and 4,000 more than in 2019.
FBI data, preliminarily, for 2020 points to a 25 percent surge in
murders. This would be the largest single year increase since the
agency began publishing uniform data in 1960.
Last year, in America, there were more than 105,000 drug
overdoses. That follows a record in 2020 with more than 91,000
overdose deaths. Now, may not be the time, despite what the Biden
Administration and any of my colleagues believe, to release drug
traffickers and dealers back into our communities and neighbor-
hoods.
Just last month, the Biden Administration commuted the sen-
tences of 75 drug traffickers and dealers. President Obama, simi-
larly, commuted the sentence of 1,715 drug offenders, and some of
those granted clemency by President Obama went on to reoffend
not longer after they were released—many back to selling and traf-
ficking drugs.
At a time when overdose deaths and violent crimes is surging,
this Subcommittee should probably not look to ways to let more
drug dealers and traffickers out of prison early. More importantly
in some respects is the philosophy of this, and that is that it is the
President’s prerogative—that means it is the President who either
designs, accepts the current rubric, or implements a new rubric in
determining early releases, commutations, pardons, and reprieves.
We can comment on it, it is my position, but I don’t think we can
legislatively, at least in a constitutional manner, impose upon the
President our will on how the President determines to grant re-
prieves and pardons. That is plenary power exclusively reserved to
the President of the United States.
Madam Chair, with that, I will yield back.
Ms. JACKSON LEE. Thank you.
The Chair now recognizes the Chair of the Full Committee, the
gentleman from New York, Mr. Nadler, for his opening statement.
Chair NADLER. Good morning.
Thank you. I thank Chair Jackson Lee for holding this important
oversight hearing on ‘‘Executive Clemency and the Office of the
Pardon Attorney.’’
I hope that today’s discussion provides us with proposals that
will enable President Biden and his successors to apply the power
of Executive Clemency as the Framers intended—as a tool nec-
14
essary to the fair Administration of justice that tempers justice
with mercy.
Over the past several decades, Republicans and Democrats have
failed to employ this power, which rests solely in the President, to
help remedy injustice, as the Framers first conceived. After decades
of Draconian mandatory sentencing policies, far too many non-
violent Federal offenders, disproportionately, people of color, re-
main in prison serving what we know now are unnecessarily harsh
sentences. Some of these prisoners are elderly and suffering from
chronic illnesses and have served their debt to society many times
over. Many others face hardships when seeking reentry into their
communities after completing their sentences because of the collat-
eral consequences of their convictions.
Clemency is the only remaining relief for many of these people.
Yet, thousands of clemency petitions are currently pending due to
the more than 15,000 petitions left by the previous Administration
for President Biden to consider.
The tremendous responsibility of reviewing these petitions and
making recommendations to the President has been customarily
delegated to the Office of the Pardon Attorney, an agency within
the Department of Justice.
This Subcommittee has both the authority and the obligation to
evaluate the efficacy of this office and to improve upon its ability
to support a vital authority of the Executive. I know that many of
our Witnesses today agree that the current clemency process re-
quires immediate reform. Some may even argue that the process
should be removed from the Department of Justice altogether be-
cause of the inherent conflict of interest posed by placing the au-
thority to review petitions for clemency within the same depart-
ment that prosecuted each prisoner.
In recent years, much of this Committee’s consideration of clem-
ency presented around abuse of the pardon power by Presidents of
both parties in individual cases. I appreciate the opportunity today,
instead, to focus on clear-minded systemic reforms that will in-
crease the rate and diversity of clemency grants, paying special at-
tention to the plight of incarcerated women and minorities who
have borne the brunt of the so-called War on Drugs.
I commend President Biden for doing what many previous Presi-
dents have not; that is, issuing grants of clemency earlier in his
term and not just before his presidency ends. Last month, he used
criteria similar to those used by President Obama to issue more
than 1,700 grants of clemency, primarily to nonviolent drug offend-
ers who would have received a lower sentence if they were charged
with the same offense today.
Recalling our recent discussion surrounding the exercise of com-
passionate release and the limitation of the First Step Act, we
know that there are thousands more remaining in prison who are
now released in home confinement with similar stories.
I hope that our Witnesses today will discuss how Congress can
help the Office of the Pardon Attorney and the President reach
more of these individuals and provide relief that will allow them
the ability to return to their communities and home confinement
without risking return to prison.
15
Although Congress has little authority over the President’s exer-
cise of the clemency power, we can enact measures that will pave
the way for more clemency grants. We can also assist in reforming
the processes we do have control over to ensure that petitions are
treated fairly and timely, and as a routine mechanism of the crimi-
nal justice system.
I would like to thank the Witnesses for appearing today. I look
forward to hearing their testimony, and I yield back the balance of
my time.
Ms. JACKSON LEE. I thank the gentleman.
[Audio malfunction.]
Mr. BIGGS. Madam Chair, you are frozen. We have got a tech-
nical issue going on, Madam Chair.
Ms. JACKSON LEE. Am I back?
Chair NADLER. Yes.
Ms. JACKSON LEE. Am I back?
Chair NADLER. Yes, you are.
Ms. JACKSON LEE. All right. Is Mr. Jordan present? Is Mr. Jor-
dan present?
Mr. BIGGS. No, he is not present, Madam Chair.
Ms. JACKSON LEE. Thank you.
When he comes, Ranking Member Jordan will be recognized—
[Audio malfunction.]
It is now my pleasure to introduce the Witnesses for the first
panel.
The Honorable Ayanna Pressley was elected to represent—can
you hear me?
Chair NADLER. Yes.
Ms. JACKSON LEE. Can you hear me?
Chair NADLER. Yes.
Ms. JACKSON LEE. The next Witness, the Honorable Ayanna
Pressley, was elected to represent Massachusetts’ 7th Congres-
sional District in the House of Representatives on November 6,
2018. She was also the first woman of color to serve in the 100-
year history of the Boston City Council. She is an advocate and a
fighter for informed and robust policies and an advocate for posi-
tive change for the most vulnerable, and an important legislator.
We are delighted to have her here, and we welcome you as our
distinguished Witness. Thank you for your participation.
Please summarize your testimony in five minutes. To help you
stay within the timeframe, there is a timing light on your table and
on your screen. When the light switches from green to yellow, you
have one minute to conclude your testimony. When the light turns
red, it signals that your five minutes has expired.
STATEMENT OF HON. AYANNA PRESSLEY
Ms. PRESSLEY. Should I go? All right.
Good morning.
Ms. JACKSON LEE. Yes, yes.
Ms. PRESSLEY. All right. Thank you.
Good morning, Chair Jackson Lee—
Ms. JACKSON LEE. Good morning.
Ms. PRESSLEY. —Ranking Member Biggs, and Chair Nadler, and
Members of the Subcommittee on Crime, Terrorism, and Homeland
16
Security. Thank you for the invitation to testify on my legislation,
the Fair and Independent Experts in Clemency Act, also known as
the FIX Clemency Act.
In the United States, there are approximately two million people
incarcerated in the criminal legal system and over 200,000 in Fed-
eral custody—disproportionately, Black, Latino, indigenous, dis-
abled, and LGBTQ+. Our nation has the highest incarceration rate
of any country in the world. This should ring alarm bells for every
lawmaker because it impacts mass incarceration in each and every
one of our districts, and it should stoke the moral outrage of every-
one who calls this nation home, as this is a shameful legacy.
The people locked in cages throughout this nation are real peo-
ple. Their families and friends are serving their sentences along-
side them. I know this all too well, growing up with an incarcer-
ated parent. I can only imagine how different my own childhood
would have been if my father was able to get the medical help and
treatment he desperately needed and deserved. Instead, his opioid
addiction, which today would be treated as a public health issue,
was criminalized and his addiction robbed me of his physical pres-
ence during my most formative years.
Today, my father, Martin Terrell, like millions of Black men and
women, is a survivor of mass incarceration. He has obtained mul-
tiple degrees, gone on to be a college professor and published au-
thor. Nonetheless, my having been robbed of his presence during
my formative years, it has been an ongoing healing process for my-
self and our family.
My story is hardly an anomaly. Across the country, more than
five million children have experienced the incarceration of a parent.
As policymakers, we must reject this unjust status quo and disrupt
the cycle and legacy in this country of treating trauma with more
trauma. We need to end the crisis of mass incarceration and fixing
our clemency process is a central part of the solution.
That is why I am proud to have introduced The FIX Clemency
Act with two distinguished Members of the Judiciary Committee,
Representatives Cori Bush and Hakeem Jeffries. My legislation
would transform how clemency works by replacing the redundant
and biased Department of Justice process with a new and inde-
pendent U.S. Clemency Board. The Board would be composed of ex-
perts in fields like behavioral health and rehabilitation, appointed
by the President. There would also be a seat at the table for a per-
son who was formerly incarcerated because I believe the people
closest to the pain should be the closest to the power driving and
informing the policymaking.
Currently, applications for clemency are under the full control of
staff in the Department of Justice and must undergo repeated scru-
tiny with duplicative layers of bureaucratic review. Experts have
warned that this structure creates a prosecutorial bias against each
applicant, and at any point in this process one lone staffer can uni-
laterally prevent an application from moving forward.
The FIX Clemency Act makes clear that prosecutors and people
who run prisons should not have outsized influence when it comes
to evaluating clemency applicants. With my bill, the newly created
Board would be transparent and independent. All recommendations
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by the Board would be transmitted directly to the President and in-
cluded in an annual report to Congress.
With more than 17,000 clemency applications pending for years
before the DOJ, we must pass the FIX Clemency Act. That is over
17,000 people, and their lives hang in the balance.
I am proud that my bill was drafted in close partnership with
lawyers, constitutional scholars, advocates from across the political
spectrum, and those who understand clemency best, people who
were formerly incarcerated, people like Danielle Metz, who is a re-
cipient of clemency herself.
She was punished with three consecutive life sentences and an
additional 20 years in Federal prison for nonviolent drug offenses.
Danielle Metz served more than two decades in prison away from
family and her children before her sentence was finally commuted.
I am grateful for her partnership in this legislation.
Congress has the power to legislate a just and equitable clem-
ency process by passing my legislation to create an independent
Board.
I applaud President Biden for granting 78 commutations and
pardons last month. It establishes a historic precedent and will
help set the individuals, their families, and communities on a path-
way to healing. We must continue this historic momentum.
To truly confront the backlog of over 17,000 applications and pre-
vent it from ever occurring again, there must be structural change.
More than 150 years ago, Congress created the current clemency
process. Now, it is time for Congress to fix it.
Thank you.
[The statement of Ms. Pressley follows:]
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Ms. JACKSON LEE. Let me thank you for very insightful testi-
mony. We were very pleased to have you before our Committee and
very pleased that you accepted. So, thank you very much.
At this time, we will move to the second panel.
This concludes the first panel of today’s hearing. I would like to
thank Representative Pressley for participating in this hearing.
We will now take a short recess to set up our second panel of
Witnesses. We will recess for five minutes.
[Recess.]
Ms. JACKSON LEE. The Subcommittee will reconvene to hear the
testimony of our second panel. I will now introduce our second
panel of Witnesses.
Professor Mark Osler is a Robert and Marion Short Professor of
Law at the University of St. Thomas School of Law. He is a former
Federal prosecutor and author whose writings on clemency, sen-
tencing, and narcotics policy have appeared in The New York
Times, The Washington Post, The Atlantic, and many law journals,
including at Harvard, Stanford, the University of Chicago, and
Georgetown. Professor Osler is a graduate of the College of William
and Mary and Yale Law School.
Mr. D. Michael Hurst, Jr., is a partner with Phelps Dunbar LLP.
He was a U.S. Attorney for the Southern District of Mississippi
from 2017–2021, and previously served as Legislative Director and
Counsel to Congressman Chip Pickering and as counsel for the
Constitution Subcommittee of the House Judiciary Committee.
That was Congressman Chip Pickering. He graduated from
Millsaps College and the George Washington University Law
School.
Professor Rachel Barkow is Vice Dean and Charles Seligson Pro-
fessor of Law at NYU School of Law. She serves as a faculty direc-
tor of the Zimroth Center on the Administration of Criminal Law
at NYU. From 2013–2019, she served as a member of the United
States Sentencing Commission. Professor Barkow graduated from
Northwestern University and Harvard Law School. She served as
a law clerk to Judge Laurence H. Silberman on the D.C. Circuit
and Justice Antonin Scalia on the U.S. Supreme Court.
The Honorable Morris Murray has been the prosecuting attorney
for Defiance County, Ohio, since his election in 2009. He also
serves as legal counsel for the Board of County Commissioners,
County Officials, and several other public boards and agencies. At-
torney Murray is a graduate of the University of Dayton and the
University of Dayton School of Law.
Nkechi Taifa is President and CEO of The Taifa Group LLC;
founder and convener of the Justice Roundtable and serves as sen-
ior fellow for the Columbia University Center for Justice.
She served as advocacy director for criminal justice at the Open
Society Foundation. She has also served as legislative and policy
counsel for the ACLU, the Women’s Legal Defense Fund; Director
of Howard University’s School of Law’s Equal Justice Program, and
staff attorney for the National Prison Project. She graduated from
Howard University and George Washington University Law School.
Ms. Andrea James is the founder and Executive Director of the
National Council for Incarcerated and Formerly Incarcerated
Women and Girls and the founder of Families for Justice as Heal-
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ing. She is a former criminal defense attorney, formerly incarcer-
ated woman, and author. Ms. James is a 2015 Soros Justice Fellow
and a recipient of the 2016 Robert F. Kennedy Human Rights
Award.
Mr. Jason Hernandez was granted clemency by President Barack
Obama on December 19, 2013. Upon his release, he earned his high
school diploma and founded several nonprofit organizations, includ-
ing at Last, which empowers Latino students to become leaders in
their schools and communities and helps them pursue careers
where Latinos are underrepresented. Mr. Hernandez received fel-
lowships from the Open Society Foundation, Open Philanthropy,
and the Latino Justice, and serves as a consultant to the ACLU’s
Redemption Campaign, Embracing Clemency.
Mr. William R. Underwood received compassionate release after
33 years of incarceration. Mr. Underwood is currently a senior fel-
low at the Sentencing Project’s Campaign to End Life Imprison-
ment. He is also a consultant, public speaker, advisor, and advo-
cate at the Underwood Legacy Fund, where he advocates for the
rights of songwriters, producers, composers, lyricists, and music
publishers.
We welcome all our distinguished Witnesses. We thank them for
their participation.
I will begin by swearing in our Witnesses. I ask our Witnesses
testifying in person to rise and ask our Witnesses testifying re-
motely to turn on your audio and make sure that I can see your
face and your raised hand while I administer the oath.
Witnesses are unmuted.
Do you swear or affirm, under penalty of perjury, that the testi-
mony you are about to give is true and correct to the best of your
knowledge, information, and belief, so help you God?
Let the record show the Witnesses answered in the affirmative.
Thank you, and please be seated.
Please note that your written testimony will be entered into the
record in its entirety. Accordingly, I ask that you summarize your
testimony in five minutes.
To help you stay within that timeframe, there is a timing light
on your table and on your screen. When the light switches from
green to yellow, you have one minute to conclude your testimony.
When the light turns red, it signals that your time is up.
You are now welcomed.
Mr. Osler, you may give your statement.
STATEMENT OF MARK OSLER
Mr. OSLER. Thank you, Madam Chair, Mr. Ranking Member.
Thank you for this opportunity to be heard this morning on this
important subject.
I am going to use my time to describe the broken system that
we used to evaluate clemency petitions. The Pardon Attorney is a
part of this broken process, but only a part, and probably not the
most important part.
I have prepared a chart of the current process. It is also included
in my written testimony as well. If you look at the chart that is
here to my left, you will see that there is a green box at the bottom
lefthand corner. What that represents is—this is a commutation
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petition—someone in prison usually preparing the petition them-
selves. They are going to fill out the form. They are going to send
it in to the Pardon Attorney staff that is going to do an analysis
of it and come up with an opinion.
Now, they are going to reach out to the local U.S. Attorney’s Of-
fice and get their opinion, which will be given considerable weight
going up the chain. Once the Pardon Attorney staff has their re-
port, it goes to the Pardon Attorney, who is going to make an inde-
pendent evaluation.
Now, from there, it doesn’t go to the President. Instead, it goes
to a staff member at the Deputy Attorney General’s Office. That is
the middle blue box in the rank of three there. That staff member
is going to make a recommendation, and then, that goes to the
Deputy Attorney General.
From there, it goes to a staff member at the White House Coun-
sel’s Office. After that, it goes to the White House Counsel. Only
after that, after seven sequential steps, does it go to the President.
This is a terrible process. Whether you think a lot of clemency
should be granted or only just a few, this is a bad process for get-
ting to the right ones.
Mr. Ranking Member, I would note that, in terms of the Presi-
dent having input and having the rubric that would be controlling,
having so much separation of bureaucracy between the President
and the people who are doing the evaluation doesn’t help that at
all. It is undisputed that no business, at least no decent business,
no successful business, would make decisions in a process like this.
Now, this process was not designed in any coherent way. It grew
up organically over time. For example, the Attorney General origi-
nally met with the President to advise him directly about these pe-
titions. Then, that was delegated to the Deputy Attorney General,
who then had a staff member intercede in between the Pardon At-
torney and the DAG. Then, the White House Counsel got involved.
So, over time, as bureaucracy does, it grew up and it just doesn’t
work.
A couple of the problems here. One is the sequential nature of
the decisions. This combines with another problem, which is nega-
tive decision bias. No one gets in trouble for saying no. All the risk
is in saying yes.
So, if we think about this as a pipe with seven valves, and they
all have to be opened for any petition, even the best petition, to get
to the end, and they are spring-loaded shut. No wonder this process
doesn’t work.
Another problem is that you have two key positions here that are
people who are generalists who are really busy. One of them is the
Deputy Attorney General, who has operating control of much of the
Department of Justice. What has happened with this process isn’t
just that the Deputy Attorney General oversees the process, but
personally vets each petition. When you have 17,000–18,000 peti-
tions, that is just not going to work, and frankly, it hasn’t. The
White House Counsel, as well, of course, has many jobs to do, and
this is just one of them.
So, what to do? Well, we just heard about the well-named FIX
Clemency Act. That would eliminate much of this bureaucracy and,
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yes, bring the process closer to the President, so that the Presi-
dent’s will about clemency can be respected in a more direct way.
I want to close by telling you why I care so much about this. This
has become my life’s work. In part, it is because I hate bureauc-
racy. It is also a matter of faith. My work has integrity because a
core value of my Christian faith—mercy—is also found in the con-
stitutional pardon power. It is rare to find a faith imperative that
so clearly is also a constitutional imperative. Even though in my
own perspective, just as a Christian, I know that mercy is a core
value of Judaism, of Islam, and nearly every moral system that is
either religious or secular.
Americans love freedom and we believe in mercy. We just need
to build a machine that reliably can provide us with just that.
Thank you.
[The statement of Mr. Osler follows:]
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Ms. JACKSON LEE. Thank you very much, Professor Osler, for
your testimony. Thank you again.
Mr. Hurst, you are now recognized for five minutes.
STATEMENT OF D. MICHAEL HURST, JR.
Mr. HURST. Thank you, Madam Chair, Ranking Member, and
Members of the Subcommittee.
My name is D. Mike Hurst. I am a partner in the Jackson, Mis-
sissippi office of Phelps Dunbar, and before that, I served as United
States Attorney for the Southern District of Mississippi.
I appreciate the invitation to be here today to testify about the
clemency process and the DOJ’s Office of the Pardon Attorney.
Before joining Phelps in January of 2021, not only did I serve as
United States Attorney, but I also had stints as an Assistant
United States Attorney, a nonprofit lawyer, a private practitioner
here in Washington, DC, a congressional staffer, and as the Madam
Chair said, counsel to the Constitution Subcommittee, which Mr.
Nadler was the Ranking Member at the time.
I am here today, though, to give my perspective on clemency and
the Office of the Pardon Attorney; specifically, in my experience as
a former chief Federal law enforcement officer and a former Fed-
eral prosecutor on the front lines, and also now, as a criminal de-
fense attorney.
Let me just be clear. The views I am expressing today are my
own. They do not represent my firm, my clients, or anyone else.
First, during my tenure as United States Attorney, I was asked
by the Office of the Pardon Attorney on several occasions to give
my thoughts on petitions for clemency of defendants who had been
prosecuted in our office. I believe, as a policy matter, that asking
the prosecutor’s opinion of a petition is not only appropriate, but
it is vitally important, as no one knows these defendants and the
circumstances surrounding their criminal cases better than the
prosecutor.
As U.S. Attorney, and before that, as an Assistant U.S. Attorney,
my role was not to lock someone up or to keep someone locked up.
Rather, our role as Federal prosecutors was to ensure that just was
done.
For brevity’s sake, I will summarize or paraphrase Justice
Sutherland’s 1935 language in Berger v. United States which says,
The United States Attorney’s interest in a criminal prosecution is not that
it shall win a case, but that justice shall be done. As such, he is in a pecu-
liar and very definite sense a servant of the law, the twofold aim of which
is that guilt shall not escape nor innocence suffer. It is as much his duty
to refrain from improper methods calculated to produce a wrongful convic-
tion as it is to use every legitimate means to bring about a just one.
Thus, in my role as U.S. Attorney, I recommended approval of
some petitions and disapproval for others—always with a mindset
towards ensuring that justice was done. DOJ’s policies that clem-
ency petitions should only be granted in extraordinary cir-
cumstances, and clemency should be exercised rarely, are the cor-
rect judicious approaches to this issue. These approaches ensure
that justice is done.
Second, the process for clemency entrusted to the Pardon Attor-
ney is, and has been, working and does not need revising or whole-
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sale revamping. The attorneys in the Office of the Pardon Attorney,
in my experience, have always been professional, fair, methodical,
and deliberate—exactly what we all should want and expect of
those reviewing petitions of people who want out of prison.
I have never experienced any type of bias or skewed judgment
from the Pardon Attorney, either for or against petitions, nor did
I ever hear or witness any type of pressure on the Pardon Attorney
from prosecutors or others within the Department of Justice.
The multiple possible veto points throughout the process is not
a flaw, but, rather, a positive part of the system, as those checks
and balances, these multiple points of review, are reevaluating
someone who has been investigated, prosecuted, and convicted for
violating our criminal laws, and we should make damn sure that
they are not a threat to society, and run all the traps necessary to
ensure that before releasing them back to the public.
Finally, there are some advocating for creating a new, inde-
pendent Federal government agency to address these perceived
issues, but believe President Ronald Reagan had it right when he
said, ‘‘The closest thing to internal life on Earth is a government
program.’’ The last thing we need is another government agency or
program.
Even if Congress were successful in establishing this new U.S.
Clemency Board, as the Ranking Member has pointed out, the
President has almost unlimited authority to grant clemency. So,
there would be no authority requiring the President to use, rely
upon, or defer to this new government agency.
In conclusion, the clemency process today is not perfect, but it
works relatively well, considering the resources of the Office of the
Pardon Attorney and the professionalism that the office exhibits.
Clemency should be granted only in rare, extraordinary cir-
cumstances, and petitions for clemency should continue to have
many levels of review before they reach the President’s desk.
If a President wants to expedite the process, he has more than
enough authority to do so.
Ms. JACKSON LEE. The gentleman’s time has expired. You can
finish.
Mr. HURST. Yes, Madam.
Those who want to simply release more criminals, defund our po-
lice, and not enforce our criminal laws will only further increase al-
ready rising crime throughout America and make America less
safe.
Thank you.
[The statement of Mr. Hurst follows:]
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Ms. JACKSON LEE. The gentleman’s time has expired.
Let me, for the record, make sure that Mr. Hurst’s full name is
complete. It is D. Michael Hurst who is the Witness that we just
heard.
Thank you so very much for your testimony, Mr. Hurst.
I now wish to recognize Professor Barkow for five minutes.
STATEMENT OF RACHEL E. BARKOW
Ms. BARKOW. Thank you, Madam Chair, Mr. Ranking Member,
Members of the Subcommittee. I am honored to testify before you
today.
So, as you have heard, there are currently approximately 18,000
clemency petitions awaiting answers from President Biden. Almost
15,000 of those are commutation petitions seeking relief from ex-
cessive sentences being served right now, and another 3,000 peti-
tions are requesting pardons.
Unfortunately, clemency appears to be a low priority for the cur-
rent Administration. It inherited a backlog of 14,000 petitions, and
instead of urgently addressing it, the backlog has grown by more
than 28 percent.
It is hard to overstate the level of mismanagement responsible
for this unconscionable backlog. These people, many of whom have
been waiting for years, deserve answers to their petitions. Yet, the
Administration has done nothing to suggest it has any grasp of the
exigency of the situation. It hasn’t changed any aspect of the clem-
ency process that created this backlog.
President Biden granted just 78 clemency petitions so far: Three
pardons, 75 commutations, leaving 99.6 percent of the rest of the
petitions in their holding pattern. It is not just the paltry number,
but the nature of the grants that shows just how narrowly the Ad-
ministration is viewing this power.
Most of the grantees were already released to home confinement
under the CARES Act, but it is hard to see why only a few dozen
people released under the CARES Act merited such relief, instead
of all of them as a categorical matter.
The Administration also noted that its recent grants included in-
dividuals who would be sentenced differently today under laws like
the First Step Act that shorten sentences. Here, too, the Adminis-
tration granted only a handful of these cases out of thousands just
like them. If this were in any other area of government responsi-
bility, there would be alarm bells ringing about the ineptitude of
those in charge.
Sadly, because clemency often fails to get the attention it de-
serves from the press and public officials, those calls haven’t come
as loudly as they should. Make no mistake, the failure to take dras-
tic action to address the current backlog of clemency is presidential
malpractice.
So, the question is what to do about it. In my written testimony
and my prior testimony to you, I have urged Congress to use its
legislative authority to create other second-look mechanisms, pre-
vent excessive sentences from occurring in the first place, and cre-
ate an expungement option.
Congress can also use its authority to improve the clemency proc-
ess itself. Congress can’t dictate how a President should exercise
44
the constitutional power of clemency, but it can provide funding
and incentives for needed institutional changes.
The President currently relies on a process in the Office of the
Pardon Attorney, as you have heard, and that is funded by Con-
gress. Congress could, instead, fund a separate advisory board that
exists outside the Department of Justice to provide advice to the
President on clemency. Taking clemency out of the Department of
Justice would address the bureaucratic duplication that Professor
Osler described and that is responsible for much of the holdup in
petition processing.
It would also address the fundamental conflict of interest in hav-
ing the same agency that prosecuted all those cases reviewing them
for clemency, a structure that has resulted in egregiously low clem-
ency grants in all recent presidential Administrations.
Congress can’t require a President to use that board, but a des-
ignated funding stream for a clemency board would signal the
broad support this idea has, and it would be more likely that it
would be consulted, especially when a President like President
Biden has already indicated his desire to do this as part of the
Biden-Sanders Unity Task Force.
While the proposal doesn’t have to mirror the one in the FIX
Clemency Act, that is one option for making this change. Setting
up a permanent board is, in my view, the preferred option, but a
second-best scenario would be to create at least a temporary board
to deal with the clemency petition backlog. President Ford used a
temporary board to address a large number of cases associated
with evasion of the Vietnam draft, and that could be a model for
this approach.
A less effective strategy, but better than nothing, would be for
Congress to increase dedicated funding for positions in the Office
of the Pardon Attorney. Eighty of these have been approved, but
they have not been funded because of the continuing resolution.
The reason this approach is less desirable is that it would ad-
dress only delays from initial review in the Pardon Attorney’s Of-
fice, when a big reason for the backlog is the failure of the Deputy
Attorney General and White House Counsel’s Office to act.
For example, we know that, in fiscal year 2020, 63 percent of the
pending petitions were awaiting decisions by the DAG or White
House Counsel. They had already been processed through the Par-
don Attorney’s Office.
So, a board that is outside of DOJ would definitely be the pre-
ferred approach, in my view, and I urge Congress to do that or take
other measures to create replacement mechanisms for clemency.
Thank you for allowing me to testify and share my thoughts. I
am happy to answer any questions you might have.
[The statement of Ms. Barkow follows:]
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Ms. JACKSON LEE. I thank the gentlelady for her testimony.
Now, I recognize Prosecuting Attorney Murray, who is recognized
for five minutes.
STATEMENT OF THE HON. MORRIS MURRAY
Mr. MURRAY. Thank you.
Good morning, Chair Jackson Lee, Ranking Member Biggs, and
Members of the Judiciary Committee.
My focus today is really I want to take a pause, or I hope this
Committee will take a pause, and think about public safety and the
impact on local communities.
My name is Morris Murray. I am the elected Prosecuting Attor-
ney for Defiance County, Ohio. I, first, served as an Assistant Pros-
ecutor back in 1985 before being elected to my current position in
2009. I am past member of the National District Attorneys Associa-
tion Board, and I am also a past President of the Ohio Prosecuting
Attorneys Association.
I am also proud to add that, prior to beginning my law career,
I served as police officer for several years. I think that it is impor-
tant that I compelled to note that today’s testimony is being on the
heels of National Police Week, a time to recognize and salute our
entire law enforcement community.
I would like to echo and support the comments of my colleague,
former Prosecutor Hurst. During my career—and I am coming from
the perspective of a local front-line prosecutor—I prosecuted over
5,000 felony matters, all levels of severity. I worked extensively for
30 years with a multi-jurisdictional narcotics task force. We are sit-
uated here in northwest Ohio, and although our community is rel-
atively small, we are in a situation where we often are the cross-
roads for drug trafficking and other serious offenses coming
through and around our community from larger metropolitan
areas.
This is a dangerous—and I am sorry to use the old cliche—but
this is a slippery slope. To the extent we allow this slope to con-
tinue in this direction, we are going to be compromising public
safety.
As this Committee exercises its oversight role with respect to
clemency and the Pardon Attorney, I am compelled to express
grave concern regarding the likelihood that increasing the number
of offenders being released, or anticipated to be released, we really
need to take a serious and really nonpolitical, apolitical look at the
impact on public safety, on State and local law enforcement, and
the available resources.
Many of the offenders being released have committed very seri-
ous crimes. I certainly wouldn’t dispute that there are some won-
derful success stories that have been referred to in some of the ear-
lier testimony, and anecdotally, those are there. That is wonderful.
The reality is there are already and likely to be substantially
many, many more stories that are more tragic. The reality is that
offenders involved in this level of serious drug offenses have been
connected to the drug culture for a long time. While we can talk
about elderly prisoners or ill prisoners, the reality is we are going
to see many, many 20-, 30-, 40-year-olds that are more likely to be
granted clemency if we loosen up this process.
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This policy is coming at a time when we are seeing a major spike
in serious crimes, violent crimes, increasing and staggering num-
bers of drug-related deaths, coupled with an effort by some to redi-
rect law enforcement resources away from what our first priority
should be, and that is public safety.
There is a common misconception that offenders convicted of
Federal drug laws, or any drug laws, for that matter, are non-
violent offenders. The reality is this culture lends itself to violence.
The business model itself is full of violence. Use of violence and in-
timidation is part of the business.
We have a widespread distribution system throughout this coun-
try that is putting large amounts of drugs on the streets of all
kinds—dangerous and deadly drugs. Even though small amounts
may show up in communities like mine, they are coming through
this distribution process.
Offenders released that have been involved, deeply involved, in
this process, commonsense would suggest they are very likely to
get back involved. Money drives this. Lots of cultural issues come
into play.
You are shifting the burden to local law enforcement and State
authorities. Crimes will be enforced; drug laws will be enforced at
the State level. If you shift what the Federal enforcement system
can do in the holding of serious offenders accountable, you are
going to shift that burden to local communities.
I appreciate the opportunity to speak today. I come from a per-
spective of a front-line prosecutor and public safety is our number
one priority.
Ms. JACKSON LEE. The gentleman’s time has expired.
Mr. MURRAY. Thank you.
[The statement of Mr. Murray follows:]
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Ms. JACKSON LEE. The gentleman’s time has expired. Thank you.
I recognize Ms. Taifa for five minutes.
STATEMENT OF NKECHI TAIFA
Ms. TAIFA. Thank you very much, Congresswoman Sheila Jack-
son Lee, Chair Nadler, and Members of this Committee.
Thank you for convening this important hearing. You have my
comprehensive written testimony. So, I will spend my five minutes
focusing on two issues.
First, the need to consider clemency for categories of people in
general, shining the spotlight on that of, quote, ‘‘old law elderly
prisoners,’’ unquote, and second, the issue of posthumous pardons.
If mass incarceration is ever to be abated, it is critical that inten-
tional steps be implemented that expand the number of people eli-
gible for relief. Individual commutations are not enough to tackle
the enormity of this challenge.
Thus, in addition to clemency petitions considered on a case-by-
case basis, a categorical approach to releasing groups of these de-
serving candidates for clemency must be seriously considered.
At the beginning of this Administration, the Justice Roundtable
issued a report, ‘‘Transformative Justice,’’ and in it, we outlined
some categories that commutation could include such as those who
had unsuccessfully petitioned for compassionate release; elderly
prisoners, those serving sentences that have since been deemed un-
just, but not made retroactive; those serving excessively lengthy
prison sentences as a result of exercising their constitutional right
to go to trial, euphemistically known as the ‘‘trial penalty.’’
We stress that the sentences of people convicted of marijuana of-
fenses must be commuted. Indeed, there is a robust campaign, led
by Weldon Angelos, to that effect.
We added that those who are COINTELPRO era political pris-
oners who remain federally incarcerated should also be granted
clemency, such as Dr. Mutulu Shakur, Veronza Bowers, and Leon-
ard Peltier.
The report stress that, regardless of whether an individual fits
into any of the categories suggested above, it is critical that the
emphasis be on who the person is today and any post-conviction
achievements they have attained, as opposed to their conviction of
record.
The category I wish to highlight for clemency at this time is that
of old law Federal prisoners who were sentenced for offenses com-
mitted prior to November 1987, when Federal parole was abolished
in the U.S. before the Sentencing Guidelines went into effect.
Grouped together, these people are referred to as ‘‘old law pris-
oners,’’ and they are among the very oldest and longest incarcer-
ated in the Federal system. Many are in their late sixties, seven-
ties, and even eighties. Many have underlying medical conditions.
They pose no threat to public safety. Presidential clemency is their
only recourse and their last resort.
The U.S. Parole Commission engages in routine parole denials,
and because of exclusion from the First Step Act, no one sentenced
under the old law is eligible to turn to courts for compassionate re-
lease, unlike every other Federal prisoner.
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Creating a rebuttable presumption for release for this category of
incarcerated people will correct both the inaction of the U.S. Parole
Commission, as well as congressional oversight, in omitting old law
prisoners from First Step reforms.
The second issue I would like to briefly highlight is that of the
posthumous pardon. While there is no question that pardons are
most beneficial to those who are living, there are times when the
granting of exceptional posthumous petitions are important and
necessary to show the discredited values of the past are no longer
the values of the present.
There is precedent across parties line for posthumous pardons
granted by the President. The Ford, Bush, Clinton, and Trump Ad-
ministrations have each issued posthumous pardons, which I out-
lined in my written testimony.
The request for a posthumous pardon for early 20th century civil
rights leader Marcus Garvey has been a multi-decade effort to right
a wrong committed by the U.S. Government nearly 100 years ago,
and it has the support of millions. President Calvin Coolidge recog-
nized the widespread abuses in this case in 1927, and he commuted
his sentence. Despite this commutation, his name is still tarnished
by the stigma of his conviction.
His son, Dr. Garvey testified before this Judiciary Committee in
1987. Congressman Rangel, Congresswoman Rebecca Clarke, and
others, have issued resolutions highlighting Garvey’s accomplish-
ments as a human rights leader and calling for his exoneration.
So, in conclusion, the President should use all the tools in the
toolbox with respect to clemency.
We thank this Committee for examining all these issues.
[The statement of Ms. Taifa follows:]
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Ms. JACKSON LEE. I thank you.
Now, Ms. James, you are recognized for five minutes.
STATEMENT OF ANDREA JAMES
Ms. JAMES. Good morning, and thank you, Madam Chair, and
Mr. Ranking Member. The National Council for Incarcerated and
Formerly Incarcerated Women and Girls is the only national advo-
cacy organization founded and led by incarcerated and formerly in-
carcerated women and girls.
Organizing begin in a Federal prison yard with a group of
women, including myself, who wanted policymakers instituting
criminal justice reform to hear the voices of formerly incarcerated
people, those who understand the harm the current system inflicts
and have the expertise to create an alternative system that recog-
nizes each person’s humanity.
As formerly incarcerated women, we believe a prison will never
be the place to address the economic and psychological reasons
women end up in prison. Prison most often causes further social
and economic harm and does not increase public safety.
The prison experience increases trauma in women and, if they
are mothers, to the children they are separated from. It deepens
poverty in the individual lives of incarcerated people and the over-
all economic stability of their communities.
Although our long-term goal is to end the incarceration of women
and girls, we also working to address conditions of confinement for
those living inside of prisons. We support women seeking compas-
sionate release and work to raise awareness of the horrific condi-
tions in our prisons and jails.
We support women seeking clemency. In the past several dec-
ades, clemency has become politicized. It is the notion that clem-
ency is a gift is wrong. Clemency is an executive power that is en-
shrined in the Constitution. Justice Rehnquist called it the fail-safe
of our legal system. It has been the foundation of justice since an-
cient times.
The idea that granting clemency is being soft on crime is wrong.
Clemency is based on an analysis of who the person is today, not
what they did years or decades ago. People who have educated
themselves, aged out of crime, are ill or elderly do not need to be
in prison. Their incarceration is not punitive, it is vindictive.
Clemency is empathy in action. Anyone who claims to empathize
with incarcerated people must support clemency for those who
made decisions in difficult times and have grown and left their mis-
takes behind.
Average Americans understand this. Sixty-two percent of voters
recognize that reducing prison populations would strengthen com-
munities by reuniting families and saving taxpayer dollars that
could be reinvested in communities.
Clemency rebuilds families, fixing the harm caused by the Adop-
tion and Safe Families Act. Two-thirds of people in BOP custody
have minor children. That means 65,600 mothers are in Federal
prison unable to raise their children. Put another way, that is 1.7
million children whose mothers are absent due to incarceration.
The situation is, however, even more heartbreaking than that.
Every tenth mother will never see their children again, even after
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they are released from prison. Approximately 11 percent of incar-
cerated women cannot leave their children with family members,
and thus end up in the foster care system.
The Adoption and Safe Families Act of 1997 limits the amount
of time any child may remain in foster care. Although creating a
stable environment for children is desirable, ASFA requires no
States to terminate—requires States to terminate parental rights
and place children in an adopted family. This destroys the family
of an incarcerated mother who could not place her children with a
spouse or family member.
Clemency also rebuilds families, fixing the harm caused by con-
spiracy laws. Conspiracy prosecutions are a major weapon of the
war on drugs that disproportionately harm minor players, mainly
women and people of color.
The horror caused by conspiracy laws can be best illustrated by
the tragedy of Michelle West, who is currently serving a two life
plus 50-year sentence for a murder.
My time is short. I do want to say that conspiracy laws are a
toxic remnant of the failed war on drugs and must be reformed.
The only way to fix this injustice is to reform conspiracy laws to
bring them in compliance with basic principles of due process.
Lastly, I do want to point out that there are several women who
have come home who were granted clemency who have done a re-
markable contribution to their communities. One of them is here
with us today, Danielle Metz, who is our Director of Clemency at
the National Council.
Dani was sentenced to serve three life sentences plus 20 years
in the Federal system. Her sentence was commuted, and she is a
remarkable contribution and example of what happens when we
grant women clemency.
Thank you.
[The statement of Ms. James follows:]
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Ms. JACKSON LEE. The gentlelady’s time has expired. I now rec-
ognize Mr. Hernandez for five minutes. Mr. Hernandez.
STATEMENT OF JASON HERNANDEZ
Mr. HERNANDEZ. Good morning. Members of the Congressional
Subcommittee, I’m very deeply sorry I cannot be present today at
this very important legislation addressing clemency reform. Thank
you for allowing me this opportunity to speak on my behalf and
those that are incarcerated.
My name is Jason Hernandez, and I would like to briefly tell you
who I was. I was a drug dealer, which I became at the age of 15.
I was a defendant when at the age of 21, I was indicted by the Fed-
eral government for distributing crack cocaine and sentenced to life
without parole plus an additional term of 320 years.
I was a prisoner. In prison, I was a jailhouse attorney. Thirteen
years into my sentence, I would write the most important letter
and petition of my life. This letter and petition I sent to President
Barack Obama on September 21, 2011, asking him to commute my
sentence of life without parole.
On December 19, 2013, President Obama answered my prayers
by commuting my sentence to 20 years. I would find out in 2018
from a New York Times reporter that President Obama received
my letter and he read it. President Obama would go on to give
clemency to 1,715 people, five of the 500 were serving life without
parole.
President Obama’s show of good grace, mercy, and willingness to
exercise his power to pardon so abundantly has been done by other
Presidents of the United States, typically in relationship to a war.
President Abraham Lincoln would issue 64 pardons to Confederate
soldiers for war-related offenses.
President Andrew Johnson issued sweeping pardons to thou-
sands of former Confederate officials and soldiers after the Civil
War. President Jimmy Carter granted unconditional pardons to
hundreds of thousands of men who evaded the draft during the
Vietnam War.
In 1971, the United States began a war which was called the war
on drugs. Since the commencement of the war on drugs, millions
of people have been arrested, charged, indicted, and sent to prison,
a majority of which were Latinos or African Americans.
I have stated above how the Presidents of the United States have
exercised the power to pardon people and in some committed an
Act related to war initiated by the United States. Some of these
wars were deemed controversial, some deemed necessary. The war
on drugs: Controversial, necessary? Could be arguments to support
both sides.
What we do know is that it was a war that was not thought out,
misguided, ill-advised, racially biased, and has hurt Black and
Brown communities more than it has helped them. At a time when
our communities needed sidewalks, roads, and better schools, we
got more prisons. At a time when we needed mentors and teachers,
we got more police.
In acknowledging the war on drugs is a failure and should come
to an end, one of the olive branches that should be extended is
clemency. Former Supreme Court Justice Anthony Kennedy stated
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to the American Bar Association on 2003, a people confident in its
laws and institutions should not be ashamed of mercy.
I hope more lawyers involved in the pardon process will say, Mr.
President, this young man has served—hasn’t served his full sen-
tence, but he has served long enough. Give him what only you can
give him, give him another chance. Give him a priceless gift. Give
him liberty. For still, the prisoner is a person, still he or she is part
of the family of humankind.
Earlier I stated who I was. Now, since my release from prison
in 2015, let me tell you who I am. I am a criminal justice reformer
and the founder of Crack Open the Door and Get Clemency Now.
I have contributed to nearly a dozen individuals being released
early from prison, nine of which were serving life without parole.
I am an author who has written a book called Clemency Now,
Get Clemency Now, which teaches people incarcerated and their
families who to put together powerful clemency petitions. I am the
2017 Black Chamber of Commerce Trailblazer and Community
Civic Leader of the Year.
I am the 2018 McKinney Volunteer of the Year. I am the 2021
Leadership McKinney Alumnus of the Year. I’m also the 2022
NACDL’s Champion of Justice of the Year.
I am also the founder and Executive Director of At Last, which
is a leadership program for Latino high school students which
teaches them how to become leaders in their school and in their
community.
I was once Inmate No. 07031078, and now through clemency and
only clemency, I am once again Jason Hernandez. I hope and pray
Congresswoman Ayanna Pressley’s historic legislation to transform
our nation’s broken clemency system and address the growing prob-
lems of mass incarceration continues with the necessary steps so
that it becomes law.
There are more prisoners like me in there. There are more
Kemba Smith Pradias in there, there are more Bill Underwoods,
and there are more Sharanda Joneses in there. With this legisla-
tion, we can free them all.
Thank you for this time, and God bless you all, and God bless
this great country.
[The statement of Mr. Hernandez follows:]
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Ms. JACKSON LEE. Thank you very much, Mr. Hernandez.
Mr. Underwood, you are recognized for five minutes.
STATEMENT OF WILLIAM UNDERWOOD
Mr. UNDERWOOD. First, I want to thank Chair Jackson Lee and
Chair Nadler, Ranking Member Biggs, and the Members of the
Subcommittee for holding this hearing today and for sharing this
space to hear stories about the importance of second chances for
people like me and families like mine.
My name is William Underwood. I’m a 68-year-old Senior Fellow
with the Sentencing Projects Campaign to End Life Imprisonment.
Over 50 years ago, I was teenage father in Harlem. I needed to pro-
vide for my family, and there was one way to make fast money. I
became involved in the drug trade to ensure that my son didn’t
know the hunger and pain I did.
I previously testified to this Committee about the impact of the
war on drugs on me and my community and the racial injustice at
its heart. I was ultimately sentenced to life without the possibility
of parole and a concurrent 20-year sentence for leading a violent
drug operation during the 1970s and early 1980s.
During my incarceration, I committed myself to growth and had
no infractions in 33 years. I parented my children from behind
bars, and they became steadfast advocates for my release. In the
fall of 2014, President Obama announced the clemency initiative
for people sentenced under mandatory sentencing laws.
My clemency petition received support from entertainers, musi-
cians, faith leaders, reformers, conservatives, sports figures, civil
rights leaders, scholars, industry leaders, people I mentored in
prison, and most of all my children. President Obama ultimately
commuted the sentences of 1,715 people convicted of Federal drug
crimes. I was not one of them.
Instead, following the passage of the First Step Act, I was grant-
ed compassionate release in January 2021, at 67 years old. Judge
Sidney H. Stein’s release order cited letters from the men I
mentored while in prison who said that I created a culture of re-
sponsibility among the men around me. Since my release, I’ve
worked to create second chances for others.
I was not an outlier in prison. There are many more people like
me in Federal prisons. Many are older—many who are older and
sicker, who have been denied compassionate release. Clemency is
valuable. It should be available to all people to safely return to the
community regardless of the crime or sentence. Clemency should
also be granted far more frequently. Clemency should never be
someone’s only hope of freedom.
There are three important ways that Congress could create more
second chances today. First, Congress should pass the First Step
Implementation Act and COVID–19 Safer Detention Act of 2021.
The First Step Act reduced mandatory minimum sentences for
drug offenses but was not retroactive.
The First Step Implementation Act would fix that inequity.
Among other provisions, it would allow courts to give a second
chance to individuals who have served at least 20 years for crimes
they committed as minors.
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The COVID–19 Safer Detention Act pf 2021 would also help to
reduce excessively lengthy sentences by expanding release opportu-
nities for elderly or terminally ill individuals. It would give compas-
sionate release eligibility to people sentenced before November 1,
1987.
The bill also includes urgent provisions to protect the lives of el-
derly individuals by adding COVID–19 vulnerability as the basis
for compassionate release and shorten the judicial review process
for early release during the pandemic.
Second, Congress should transfer jurisdiction of older individuals
to Federal courts so that they can receive a meaningful opportunity
at parole. People sentenced in Federal courts before 1987 are enti-
tled to parole hearings every two years.
People age of out of crime, and old law individuals are elderly
and have a low risk of recidivism. Few people receive parole.
In 2021, the U.S. Parole Commission granted parole to less than
20 percent of old law individuals who received hearings, despite the
health emergency in Federal prisons. We believe Federal courts are
better equipped to fairly judge whether these individuals deserve
parole.
Finally, Congress should pass legislation to allow everyone’s sen-
tence to be reassessed after ten years. Ten years is long enough to
see how someone has grown and changed and to reevaluate wheth-
er they should go home.
That’s why in 2019 Senator Booker and Representative Bass in-
troduced The Second Look Act, which would give all people in the
Federal prison system a chance to have their sentence reviewed
after ten years.
Receiving a second chance shouldn’t be an extraordinary event.
If we believe in redemption and the rule of law and acknowledge
that our criminal justice system has been biased or too harsh, it
should be routine. My story should not be rare.
I urge you to consider all the men and women like me. Please
remember their dignity, their worth, their loved ones, and their
vulnerability as they grow old behind bars, and give them a path
home. Thank you.
[The statement of Mr. Underwood follows:]
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Ms. JACKSON LEE. Thank you very much, Mr. Underwood, for
your testimony. Thank you for all your statements, for your open-
ing statements, and for your contribution to this hearing.
We will now proceed under the five-minute rule with questions.
I will begin by recognizing myself for five minutes.
It is important to realize how many people we have incarcerated
and the desire for them to start anew or to contribute to society.
Mr. Osler, help us understand the impact of soliciting the local
prosecutors and giving that considerable weight for someone who’s
been incarcerated and has a whole new attitude and change of life.
Can you explain that conflict of interest and how other clemency
process models would prevent that conflict?
Mr. OSLER. Yes, thank you for that important question. One
thing I want to make clear is that I don’t think anyone is talking
about cutting DOJ completely out of the process where they would
not have a voice. It is important that DOJ has a voice and people
who know what the core imperatives are there.
However, I will say this about going back to the local prosecu-
tors, that I was an Assistant United States Attorney, and there’s
something that prosecutors know, and that is that there’s a deep
moral commitment to work.
That is a good thing, because when I’m asking for a sentence for
someone like Mr. Hernandez, I’m standing 20 feet away from some-
one and saying that I want that person to miss their child’s wed-
ding and not be—
Ms. JACKSON LEE. Mr. Osler, my time is short, I have other ques-
tions—
Mr. OSLER. Well, I will say—sorry. Okay, just that there is a
deep that person has, and it’s tied to the moment of the crime, and
it doesn’t take into account how people change over time. These pe-
titions often are 20, 30, 40 years later, and that deep commitment
is tied to a different point in time.
It doesn’t account for the change in the person’s life, including
some of the changes that we heard about from some of the other
Witnesses here.
Ms. JACKSON LEE. Thank you. Professor Barkow, tell me why
you support the creation of a task force of Border Commission very
briefly. I do have other Witnesses that I want to question, thank
you.
Ms. BARKOW. I’m in favor of the creation of an advisory body that
exists outside the Department of Justice:
(1) It will help alleviate that duplication of effort and get rid of some of the
bureaucracy.
(2) It won’t have the same conflict of interest and the people appointed by
the President could have relevant expertise in the kinds of questions
that come up with clemency in evaluating how that person is today.
(3) I think when you have a specialist body like that, it can be more effi-
cient and get petitions processed more quickly, and it can be a good re-
source for the President.
I should say I don’t think any of this replaces the President’s au-
thority. I agree that it is 100 percent within the President’s prerog-
ative to grant or deny. It would provide the President with better
sources of information and an efficient process, as opposed to what
the President is getting now, which is effectively nothing, which is
a backlog of 18,000 people.
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They’re not getting a yes, they’re not getting a no, they’re not
even getting a maybe. They are just sitting in some kind of purga-
tory. Creating an advisory board would help cut that red tape, get
rid of the conflict, and give the President better advice.
Ms. JACKSON LEE. Thank you so very much. Ms. James, I think
we started out by hearing thoughts that all we might be doing is
adding to the criminal element, and that we might be creating dan-
ger. I do want to pay tribute to our law enforcement during Police
Week. We all want to be safe.
You made a very important point that I know, as I have been
working with incarcerated women. Many of them are there for con-
spiracy charges that impact women who are grabbed into the sys-
tem and given enormous pain. Of course, that completely implodes
in many cases, as do fathers, the family.
Would you comment on that, and that releasing these women
will be a contribution to society, not a detriment. Ms. James.
Ms. JAMES. Thank you, thank you. I would like to comment on
that. I am a former criminal defense attorney. I stood in countless
courtrooms defending women, men, and children. I’m also a for-
merly incarcerated woman that served a sentence inside of a Fed-
eral prison.
Madam Chair, but for clemency—but for conspiracy in the Fed-
eral prison system, the majority of the women who are currently
incarcerated in our Federal prisons would not, could not justify the
prosecution, indictment, and sentencing at the lengthy sentences
that these women received.
Conspiracy is something that we must take a very deep look at.
We have been doing a years’ long research study with incarcerated
women in the Federal system. It causes egregious harm, dispar-
ately impacts women, particularly women with children, separating
them for unconscionable periods of time for sentences that other-
wise could not be justified.
Ms. JACKSON LEE. The gentlelady’s time has expired, and my
time has expired. Thank you very much.
Now, my privilege to yield to the Ranking Member, Mr. Biggs,
for five minutes.
Mr. BIGGS. Thank you, Madam Chair, and again, thanks to the
Witnesses for being here for some very enlightening and inform-
ative testimony.
I want to go back to my opening comments and try to address
them with how I see this—how I see it now. Professor Osler, I ap-
preciate the diagram that you put up there. Professor Barkow, I
read your statement, and I find it very interesting as well.
I want to, we have a real short amount of time, so I’m going to
keep you on a short leash. I do want your responses to this. Be-
cause when you talked about this, both of you, and I wrote down
next to yours—Ms. Barkow, I wrote, ‘‘creating a system outside the
system.’’
I get it, this is the system as it currently sits. This is the sys-
tem—it grew organically. The President controls the system is my
point, and I think we all agree to that.
My question is, if you create a system outside the system, which
is kind of what we’re talking about, are you not just sticking an-
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other box on that board? That would be my concern if you really
want to streamline this. I’ll go to you first, Ms. Barkow.
Ms. BARKOW. There is no guarantee that’s not the case. I can see
that, because you can’t force the President to use it if you create
an additional body.
Though, that it wouldn’t work out that way, because, one, this
President has claimed that he wants to create a body outside of the
Department of Justice, he just hasn’t done it.
I think Congress creating something like this gives it an impri-
matur that Congress thinks it’s a good idea. The idea would be
having that agency set up. I would think of it more like an advisory
board that would kind of sell itself because the President would
find it to be useful.
There’s no guarantee, and you could find that the President de-
cides ‘‘I don’t want to use that, I want to stick with this. Or I’m
going to take that and finally’’—
Mr. BIGGS. I hate to cut you, but go to Professor Osler real quick.
Mr. OSLER. Yeah, we would hope that the President would not
make that bad choice. I’d point something out, too, that the Presi-
dent doesn’t pick everybody in this chart. That certainly picks the
DAG and sometimes is happy with that choice and sometimes not.
The staff—
Mr. BIGGS. Rubric—
Mr. OSLER. Well, in essence—
Mr. BIGGS. He could change that rubric today. He’s approved
only 78 clemencies. We’ve seen—after President Obama left, he had
13,000 in the pipeline, you had 14,000 after Trump, you’ve got
18,000 today.
Any President, and I’m saying either party or the other, they’re
the ones that actually could change the systemic—because, Mr.
Osler, you’re describing what I would say is maybe a potentially
systemic problem here.
If it’s a systemic problem, there’s really—the Constitution gives
one individual the authority to actually clean up that process. We
may send a signal from the Congress, we may not, and I would
suggest that those signals have probably sent for multiple Adminis-
trations.
How do you avoid just putting another box on there? I’m going
to give you about ten seconds because I got to get some other ques-
tions answered.
Mr. OSLER. Yeah, well, I just want to note that when the Presi-
dent sets a rubric and says I want these people out, this system
had done terribly. For example, most recently, we had President
Biden saying I want people from the CARES Act—We got a hand-
ful.
Mr. BIGGS. I get it, yeah. As probably everybody sitting at this
table and throughout the room to say the rubric doesn’t—might
have some real issues, okay. So, I thank you for that.
I want to get to you, Mr. Murray. What role do the actual victims
of violent crime, because we have about eight percent of everybody
that’s in Federal prison is requesting clemency. So, what role does
a victim of violent crime have in this current rubric or should have
in clemency decisions?
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Mr. MURRAY. Is that question addressed to me? I’m sorry, I
couldn’t hear—
Mr. BIGGS. Yes, yes.
Mr. MURRAY. Part here. My perception is that’s a very minimal
role. The other difficulty there is how you define victim. Talk to a
mother whose 20-year-old son just died of an overdose drug that
was trafficked to that 20-year-old, that mother’s a victim. There’s
a lot of variety on that question.
I don’t believe there’s significant input. I keep hearing the term
bias from the side of the prosecutors, but a number of the panelists
and a number of the people involved in the process come from the
defense side, from the offender’s side. Where do we balance poten-
tial bias—
Mr. BIGGS. Okay, I hate to cut you off, because I appreciate it.
I wanted to get to Mr. Hurst.
You’ve experienced this on both sides, defending and prosecuting.
Where does the victim fit in this process?
Mr. HURST. The victims should fit in with this process. This is
the whole point of law enforcement, to keep us safe and to prevent
people from becoming victims. So, yes, victims should have a role
in this process, just as they have a role when we prosecute Federal
crimes.
We have a victim Witness coordinator in every U.S. Attorney’s of-
fice in the nation, and we consult with the victims when we pros-
ecute cases.
Mr. BIGGS. Thank you, my time has expired.
Thank you, Madam Chair.
Ms. JACKSON LEE. Thank you, I now recognize the Chair of the
Full Committee, Mr. Nadler, for five minutes.
Chair NADLER. Thank you, Madam Chair.
Professor Osler, because the Federal system lacks expungement
opportunities for individuals, the only relief they can get from the
collateral consequences of conviction is through the clemency proc-
ess.
Can you explain how the lack of access to clemency, along with
the burden of a criminal conviction, prevents successful reentry
and reintegration?
Mr. OSLER. Yes, I can. Part of the reason is I run a clinic at my
school where we represent people for pardons. We know what it
means to them. Every case is going to be different, of course, but
for example, it may seem mundane, but there are pardon petitions
from people where what they want to do is go hunting with their
grandchild.
They can’t because they can’t possess a gun. That may be a little
thing to some people, but it’s a big thing to that grandfather. There
are people who can’t get a license to do the job that they want to
do.
Perhaps most importantly, many people just want to feel whole
again. They want to feel that they have moved past their—that it
is recognized that they are no longer the person that committed
that crime, and that’s what pardons can do.
Unfortunately, this system serves commutations poorly. It serves
pardons even worse. Thank you.
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Chair NADLER. Why do you say that it serves pardons even
worse?
Mr. OSLER. Well, for the last—during the Obama presidency,
during the Biden presidency, there’s been an emphasis on
commutations. Because the bandwidth is so thin from the pardon
attorney on up, when they’re focusing on commutations, pardons
get shunted aside.
Chair NADLER. Thank you. Professor Barkow. In your testimony,
you discuss the possibility of removing the clemency process en-
tirely from the Department of Justice. Can you explain how that
would help address the bureaucrat barriers and increase relief for
individuals seeking clemency?
Ms. BARKOW. Sure. It would effectively get rid of that chart. So,
you would have a body that replaces it, provides all the information
to the President, and then the President still makes the ultimate
decision. The President could tell that advisory body how he wants
to run.
He could say that these are the cases I want to prioritize, this
is the way I want you to look at petitions. I want you to favor this
category or that category, or this kind of person. What you would
effectively have is a dedicated board that is supposed to just do
clemency.
What you have in that chart is you have one office that does
that, which is the Office of the Pardon Attorney, which is woefully
understaffed. Then it has to go through these other two places in
the chart where the White House Counsel and the Deputy Attorney
General, they just are prioritizing other things, and not unreason-
ably so.
So, placing an advisory board that is just designed for clemency
gives you the benefit of specialization and efficiency. It takes away
any kind of bias that exists from having the same agency that
brought the case make the final decision.
You still get input from the Department of Justice; you still ask
about facts of the case from prosecutors. You have it evaluated by
an objective party that doesn’t tilt on one side or the other, it’s just
trying to think what is the best outcome and advice to give the
President.
Chair NADLER. Thank you. Ms. Taifa, in your testimony you dis-
cussed the need for clemency to fix past wrongs that led to mass
incarceration, such as mandatory minimums and other harsh sen-
tencing. How can improving the clemency process address the ongo-
ing racial disparities in the criminal justice system to make the
system more equitable and fairer?
Ms. TAIFA. In my testimony, it was through instance categorical
clemencies, looking at groups of people. Because mass incarceration
has been so massive, the solution to it needs to be massive as well.
There is precedent for it. We have talked about the Ford clem-
encies for Vietnam-era draft resistors, that happened also with re-
spect to Carter. It was very effectual. There was no danger to pub-
lic safety or anything along those lines.
It sought to correct issues and help to bring—heal the nation, be-
cause that was a very controversial time. Mass incarceration is con-
troversial, and—
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Chair NADLER. Excuse me, but that was a categorical clemency
to an entire class of people. You’re not talking about that.
Ms. TAIFA. Well, actually, I am. I’m talking about various classes
of people. One of which I spoke of was the class of old law prisoners
who were sentenced before 1987, before the sentencing guidelines
went into effect.
They don’t have any recourse, and clemency is basically their
only avenue that they have for release. They’re no benefit from the
First Step Act compassionate release processes, and the parole
board has been basically ineffectual.
Chair NADLER. Thank you very much, my time has expired. I
yield back.
Ms. JACKSON LEE. I thank the Chair. I now recognize Mr. Goh-
mert for five minutes.
Mr. GOHMERT. Thank you, Madam Chair, appreciate all the Wit-
nesses’ input today.
I heard Dan Lungren, a Member of Congress, shortly after I got
here when the discussion in this Committee was about the gross
unfairness of having so much more severe sentences for crack co-
caine as compared to powder cocaine. We were told that was racist
to even have that.
Dan Lungren had been here when that was passed. He pointed
out, and I went back and pulled some articles and found out that
he was right, that when the extraordinarily higher punishment for
crack cocaine was passed through this Committee in the House,
there were Members of the Congressional Black Caucus, including
Charlie Rangel, that said if you vote against this, then you’re in
favor of destroying the Black community. That this crack cocaine
is just a poison to the community, and we have got to have these
more severe sentences.
So, it was passed. You had a Committee, you had all kinds of re-
search. For those of us that have been sentencing judges for felo-
nies, most of us didn’t see any reason for that kind of big disparity
in sentencing.
So, a new Committee, a better researched Committee doesn’t nec-
essarily mean that we’re going to have a solution to the problem.
One of the concerns I have about blanket across-the-board decisions
on sentencing after the fact is that most of the judges I know—I
was a State felony judge—but Federal judges as well have these
massive presentence reports. Some of us spend a tremendous
amount of time agonizing over all the details in that presentence
report and trying to come to the right conclusion. Then to have
somebody, some Committee, somebody come in and say we don’t
know anything about this case, but we’re going to come in and ad-
just that sentence. Well, they may not know what the judge knows
from the presentence report, that actually there was a gun in-
volved. In order to get someone to testify against a bigger guy,
there was an agreement we won’t include the gun charge so you’ll
get a lighter sentence.
I mean, there are things that are considered at the trial court
that don’t get considered when this body comes in and says we’re
going to have a blanket adjustment to sentencing.
There’s been a good deal of criticism of President Trump for
granting pardons in the military system. I would encourage others
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on this Committee, please join with me in helping reform the mili-
tary justice system.
Because when you have the same commanding general that signs
an order saying I want this person prosecuted and even without
saying it, it’s clear to every commander, everybody below the com-
manding general, that he wants him convicted or he wouldn’t have
signed the charge.
Then the general gets to pick the people that will be on the jury,
and the jury doesn’t even have to be unanimous. It’s a problem,
and we have had a lot of unfairnesses in the military system.
I know that’s not what anybody here is about, but when we’re
taking a look at unfairness and justice, that is a grave unfairness.
Actually, President Trump didn’t get to everybody that should have
gotten pardoned.
One of the finest hires I’ve ever made was somebody that was
treated that way in the military justice system. He now works for
me. He didn’t get a pardon, but he’s a brilliant guy, and he’s going
to help us make these changes.
I just point those things out from somebody that has agonized
over sentencing and tried to do the right thing in sentencing. It’s
not fair to have somebody come in that doesn’t know the case you
did and change the sentence. We have got to work toward more
fairness. Appreciate—
Ms. JACKSON LEE. The gentleman’s time has expired.
Mr. GOHMERT. All right, I appreciate it. Yield back.
Ms. JACKSON LEE. The gentleman’s time has expired. I now rec-
ognize the gentlelady from Pennsylvania, Ms. Scanlon, for five min-
utes.
Ms. SCANLON. Thank you, Chair Jackson Lee, for holding this
hearing today and to all our Witnesses for being here.
Executive Clemency can be an important tool in our justice sys-
tem. However, as so many have attested today, the current process
could use some work.
I had the privilege of participating in the Clemency Project 2014,
an effort led jointly by the then White House, the Department of
Justice, and a host of groups across the ideological spectrum to
grant relief to nonviolent offenders who’ve been subjected to man-
datory minimum sentences, which we’ve since moved away from.
In that project, we trained hundreds of private bar lawyers
across the country and joined them in screening thousands of case
files and filing hundreds of clemency petitions on behalf of individ-
uals who met a rigorous criterion for consideration.
I was really pleased that the team at my law firm obtained clem-
ency for 29 individuals. I think their stories can help inform this
conversation and dispel some of the rhetoric and fears about releas-
ing dangerous individuals into the community.
One of them was Michelle Miles, who was jointly represented by
my former law firm and NYU students under the supervision of
Professor Barkow. Another was Cindy Shank, whose story was the
basis for an award-winning 2018 documentary, The Sentence,
which provides an in-depth look on the incredible impact that clem-
ency can have.
I also know that thousands of clemency applications were left
unaddressed when President Obama left office, with his successor
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choosing to prioritize clemency and pardons for his personal associ-
ates and individuals recommended by social media influencers
using no discernable objective criteria, other than political expedi-
ency.
I understand that our current process can be burdensome, ineffi-
cient, and both underutilized and subject to abuse. So, it sounds
like there are ways we can improve the clemency process and en-
sure that the President can effectively implement this important
tool.
Professor Barkow, yesterday I joined Congresswoman Pressley
and two of our Republican colleagues, Representatives Joyce and
Armstrong, in a letter to the Pardon Attorney requesting
disaggregated demographic data on the clemency application back-
log so that we can better understand its impact on communities.
We know there currently are over 17,000 pending clemency peti-
tions stuck in that backlog. Can you give us a sense of who the ap-
plicants caught in the backlog are? Do many of them meet the cri-
teria for clemency established by the last couple Administrations?
Ms. BARKOW. I’ll answer that to the best that I can, but it’s not
a very transparent process, which is one of the problems. We don’t
really know because the Pardon Attorney doesn’t give very much
information about what the petitions look like.
What I can tell you is there are thousands of people who would
not be serving the sentences they’re serving today because the law
itself has changed, and Congress did not make the changes retro-
active, for example in the First Step Act. Other than making crack
cocaine changes retroactive, all the other changes to mandatory
minimums were just forward-looking only.
There’s a lot of people who are serving sentences that wouldn’t
get the sentences they have today. Similarly, they wouldn’t have
gotten the sentences they have today because they were sentenced
under mandatory guidelines, and they didn’t get covered by the
Obama initiative.
We know there are thousands. I can’t give you a precise amount.
I can tell you the Sentencing Commission did a report after the
Obama initiative and found who there were thousands of people
who met his criteria who just kind of escaped review under that
process.
The other thing we know is there are thousands, we don’t
—again, I don’t know the precise number, I’ve tried to get it from
BOP, this Committee could get it, who have been released under
the CARES Act.
So, they’re already released under home confinement. Attorney
General Bill Barr released them. They will go back to prison if the
pandemic is declared over—if the emergency is over—unless they
get clemency relief.
They were a big chunk of the people who got the grants from
President Biden in those 75. So, that’s another large group of peo-
ple who are in there.
Then we have a lot of people who are serving sentences under
mandatory minimums. To go back to Representative Gohmert’s
point, those judges had no authority to give that sentence, their
hands were tied.
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Many of those judges would very much like to see those people
get clemency because they actually weren’t the product of a judge
looking at individual circumstances and facts. They were manda-
tory minimums that the prosecutor brought, and they were trig-
gered by the conviction or the plea. That’s it, the judge couldn’t do
anything about it.
So, those are some of the people that are in that pool. They have
families, they have loved ones, they’ve served their time. They have
reformed. Many of them like Mr. Underwood have, unblemished
records that are very hard to have while someone is incarcerated.
They’re just looking for a second chance and show that they’re no
threat to public safety.
Ms. SCANLON. Well, I share your concerns that the White House
and DOJ lack the resources to tackle the backlog and be more effi-
cient moving forward, and that there’s a potential for conflict of in-
terest within the DOJ. Can you just speak very briefly about how
the pardon advisory board could assist with that?
Ms. JACKSON LEE. The gentlelady’s time has expired.
Ms. SCANLON. Okay, Madam Chair, I just would request unani-
mous consent to enter into the record an article from National of
Second Chances detailing the experience of Michelle Miles, who re-
ceived clemency from President Obama in 2016.
Ms. JACKSON LEE. Without objection, so ordered. The gentlelady
witness can provide the answer in writing. Thank you for your
courtesy.
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Ms. SCANLON. Thank you.
Ms. JACKSON LEE. Thank you. I recognize now Mr. Tiffany for
five minutes.
Mr. TIFFANY. Thank you, Madam Chair, and it’s good to have all
you here. Mr. Underwood, it’s good to see you here before this body
once again.
You cited President Ford, I believe, Ms. Barkow, and that he set
up this panel. I mean, isn’t it the case that the President can do
this if he wants to?
Ms. BARKOW. Yes, I have urged him to do this, and he has not
yet.
Mr. TIFFANY. Isn’t it the case that he could just reprioritize, you
hear about this backlog, can’t he reprioritize this within his De-
partment of Justice and say we want to see more of these reviewed
and the decisions expedited?
Ms. BARKOW. He can. That’s a little bit trickier, to be honest.
President Obama effectively tried to do that. He told the Depart-
ment of Justice what he was interested in doing.
It’s very hard to get through that machinery to crank out what
the President wants, because you can see it’s a bit of a bureaucratic
mess. It’s hard to oversee that in a way that gets exactly what you
want out of it. Yes, the President can do it.
I would say the best thing he could do is to give the Department
of Justice very clear categories, as Ms. Taifa pointed out, and that’s
the most effective way to get this organizational chart.
Mr. TIFFANY. I’m so glad that you bring up the bureaucracy, be-
cause we’re going to comment on that later. It’s one of the great
concerns I have, having served in State government, are we setting
up a parallel bureaucracy that ends up just being a problem.
I hope I say your name correctly, Ms. Taifa. You were talking
about a categorical clemency or commutation or whatever. So, do
you believe we should have a broad class of people that should sim-
ply be given clemency or?
Ms. TAIFA. Well, actually, what I’m talking about is a rebuttable
presumption of release for specific, targeted categories of persons.
I gave examples of a number of different categories.
It’s not just a broad, get-out-of-jail-free type of situation. It’s a re-
buttable presumption, meaning there will be a presumption, say, if
someone has served a certain amount of time, has complied with
all the things they’re supposed to comply with in prison, that they
should be able to be granted at least a presumption of that.
That could be rebutted by the prosecutor or whatever, but there
should be some type of process that can be expedited, and that’s
one way of going about that.
Mr. TIFFANY. Thank you for your answer in regard to that. I
think we also have to really be mindful of victims in regard to this.
I think about in the State of Wisconsin, our Governor Evers, who
named his parole commission, just recently was going to parole
someone who had a heinous record of a brutal murder. The family
was outraged at the parole commission that was named by Gov-
ernor Evers, that they were going to let this person loose. So, I
think we have to be very mindful of the victims also.
Mr. Hurst, how often in, let’s say the last decade, does someone
go to prison for a simple marijuana possession charge?
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Mr. HURST. Oh, I have no idea. I don’t have that in front of me.
Mr. TIFFANY. Mr. Murray, can you answer that question, how
often does somebody go to prison for a simple marijuana charge?
Simple possession.
Mr. MURRAY. Sure, almost never at this point in time. Only
large, large quantities. Obviously, with the trend across the coun-
try as it relates to cannabis, there’s less and less emphasis.
Resources aren’t available, we’re inundated with meth and other
more serious drugs. The attitude is that we don’t have the time or
the resource to deal with marijuana.
Mr. TIFFANY. So, what you’re saying—
Mr. MURRAY. Very rare, very rare.
Mr. TIFFANY. What you’re saying, Mr. Murray, is it’s pretty rare
to see that, it’s rare to see that happen.
Mr. HURST. Mr. Tiffany, I can tell you in 15 years as a Federal
prosecutor, zero have been prosecuted in the Southern District of
Mississippi for simply marijuana possession.
Mr. TIFFANY. Yeah, okay. Just a follow up, Mr. Hurst. What are
the unintended consequences of—you’ve got 20 seconds to answer
this—what are the unintended consequences of making this
change?
Mr. HURST. Well, I think the unintended consequences is what
Professor Barkow said, which is the President can just ignore it.
The problem is we’re just creating more bureaucracy.
If you look at the FIX Clemency Act, we’re putting more people
on the Federal dole, we’re funding more retirements, we’re funding
more salaries. We’re basically sending the taxpayers’ dollars out for
no apparent reason.
Mr. TIFFANY. So, thank you for that. I’m just going to close with
this: I am so glad you brought this up in regards to the bureauc-
racy, because we see it everywhere in the Federal government. It
happens everywhere.
When you hear us talking about natural resources, you hear us
talking about any issues where there are huge impediments in the
way, you see charts like that you could double the number of peo-
ple that are in the way. That happens all over our Federal govern-
ment.
We need to fix it, and I’m so glad you bring it up, and I’m glad
you bring up the negative decision bias that goes on in our Federal
government.
Ms. JACKSON LEE. The gentleman’s time has expired.
Mr. TIFFANY. I yield back.
Ms. JACKSON LEE. The gentleman’s time has expired. I’m now
pleased to yield to the gentlelady from Missouri, Congresswoman
Bush, our Vice Chair, for five minutes.
Ms. BUSH. St. Louis and I thank you, Chair Lee, for convening
today’s crucial hearing. Thank you for your partnership and col-
laboration on such an urgent issue as clemency, which has been a
top priority for me since I was sworn into office.
Three weeks ago, after months of urging from myself and our fel-
low colleagues, President Biden granted clemency to 78 people, in-
cluding 75 commutations and three pardons. I was absolutely
proud to see two of those residents—two of those people were resi-
dents of St. Louis.
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In exercising this extraordinary executive authority, the Presi-
dent cited redemption and rehabilitation as core values of our na-
tion. I couldn’t agree more, and I commend him for taking this nec-
essary step.
During the previous Administration, the President largely used
his clemency power for cronies, for family Members, political allies,
and friends. Rather than a tool of redemption and decarceration, he
wielded this authority for nepotism and corruption. Clemency be-
came an extension of the privilege afforded to the rich and the pow-
erful.
In the context of our punitive carceral system, clemency provides
President Biden with the authority to put humanity over greed,
justice over violence, and righteousness over corruption.
Ms. James, in your testimony that 65,600 mothers are in Federal
prison unable to raise their children, leaving 1.7 million children
behind, and that every tenth mother will never see their children
again, even after they are released from prison, how would mass
commutations and clemencies impact Black and Brown commu-
nities, particularly women?
Ms. JAMES. Thank you and thank you for your support for our
efforts around clemency for women in the Federal system, Con-
gresswoman.
Clemency allows the President to strengthen communities with
a stroke of a pen. We have thousands of women currently incarcer-
ated who have lots of years inside already where their children
were infants and now may be 10–12 years old. That is typical
throughout the Federal system.
We have women like Danielle Metz, who’s here with me, Con-
gresswoman, who you have met and personally had conversations
with. Dani’s story is unfortunately not an anomaly. It is so common
in the Federal system. Dani is here with us today, thank goodness,
after 23 years in a Federal prison where her children grew up
without her.
The Adoptions Safe Families Act, which we have to desperately
work on, is something that destroys families. Because it requires
that the State remove custody of parents, and it did not take into
consideration the fact that many of these people were going to be
incarcerated women.
Eighty-five percent of currently incarcerated women are mothers,
and they were the primary caretakers of their children prior to
their incarceration. We must do something to recognize the further
harm and trauma that happens when you separate mothers from
children, and that you remove these women from our communities.
Clemency is gender justice. It is an opportunity for us to correct
some of the things that all the people on this panel, including con-
spiracy and other things that have led to significant convictions in
unreasonable amounts of time that are affecting the women in the
Federal system.
Women just like Danielle Metz, just like Virginia Douglas, just
like Kemba Smith. Women just like Amy Povah.
Women just like Michelle West, going on her 29th year of incar-
ceration, never an infraction during incarceration, whose daughter
Miquelle has come before this Committee and the White House
countless times to beg for a second chance for her mother.
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So, this does mean something to us. Clemency would provide a
huge tool to help us to move these women and help to reunite and
heal families.
Ms. BUSH. Thank you.
Ms. JAMES. Thank you.
Ms. BUSH. Ms. Taifa, you talked powerfully about Marcus Gar-
vey’s conviction being unjust but outright wrong. Why is it so im-
portant to exonerate Garvey and other leaders of racial justice who
have been victims of prosecution?
Ms. TAIFA. Thank you, Congresswoman. It is so very important
because there have been so many instances of injustice in this
country, not just what’s happening now, but what has happened
historically. Marcus Garvey served to unite Black people, not only
in this country, but across the world as well.
He was targeted by this government, he was targeted by the
predecessor to the Federal Bureau of Investigation, the Bureau of
Investigation under a young J. Edgar Hoover.
The trial was a mix of issues dealing with race and dealing with
politics. Even the President at that time, Calvin Coolidge, agreed,
and a result commuted that sentence.
That commutation did not remove the stigma of his name. His
living son, Dr. Julius Garvey, has been seeking to restore the honor
of his father. His image, Marcus Garvey’s image, in on the currency
of the nation of Jamaica. All over the world, people have been hon-
oring him. Dr. Martin Luther King, Nelson Mandela, others, many
leaders around the world.
Ms. JACKSON LEE. The gentlelady’s time—
Ms. TAIFA. Have learned from his teaching. Thank you.
Ms. BUSH. Thank you, I yield back.
Ms. JACKSON LEE. Thank you. Gentlelady’s time has expired,
thank you very much. Let me acknowledge if there are any other
Members that are in the room.
Mr. BIGGS. Madam Chair, Mr. Massie is in the room and would
like to speak.
Ms. JACKSON LEE. I’m delighted to yield five minutes to Mr.
Massie.
Mr. MASSIE. Thank you, Madam Chair.
There’s no doubt in mind that we have thousands of people in
this country who are incarcerated unfairly or over-incarcerated.
They’ve served their time, they’ve been punished enough, and that
they should be released to leave—lead productive lives.
With that said, clemency is a tool of the Executive Branch, not
of Congress. I think we need to take this opportunity to think
about what we could do in Congress to fix these problems, or to
prevent these problems.
I don’t think mass clemency is the answer any more than manda-
tory minimums are the answer to crime, because it’s a one-size-fits-
all. I do think there should be more clemency and more consider-
ations given on an individual basis.
Ms. James, you mentioned conspiracy and how so many people
are charged with conspiracy. Just to summarize for those people
who are watching this, this is a way to prosecute somebody who
has not committed a crime. What we have to do is have the resolve
in Congress not to pass more conspiracy laws.
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We’re doing it every year. It’s not easy to vote against some of
these bills that have the conspiracy stuff stuck in them. The anti-
lynching bill had a conspiracy charge or clause in there. So, that
you could convict somebody who had never been involved in lynch-
ing somebody merely for talking about it.
So, it takes resolve on the part of my colleagues to vote against
these things where we create new conspiracies.
Also, mandatory minimums. These are one of the most dangerous
things that we’ve created here in Congress. They’re a creation of
Congress, not the Executive Branch. We don’t let the judges have
the discretion that they should have to determine what the actual
punishment is to fix the actual crime.
When you’ve got a bill, and it’s a bill to prevent sex trafficking,
and there’s a mandatory minimum in there, it’s hard politically, it’s
hard for my colleagues to vote against a sex trafficking bill that
would cut back on sex trafficking, even if it’s got a mandatory min-
imum in there.
They’re not considering the fact that mandatory minimum could
be used to prosecute a receptionist at an internet hosting company
merely because that internet site was used for sex trafficking.
The single mom who’s the receptionist there, maybe she knows
something’s up and everything at this company’s not on the up and
up, but she’s got to feed her kids and she’s working there as a re-
ceptionist. Why does she deserve ten years in prison when the per-
son who’s actually committing the crime may get exactly the same
sentence?
This just takes a lot of resolve. We got to start reading the bills,
read the bills, look for these things in there, and offer amendments
that take out the conspiracy charges and to take out the mandatory
minimums that are in there that tie the judges’ hands and then
create this problem on the back end where you need to use clem-
ency.
I’d just like to use my remaining time to talk about one case, the
case of Ross Ulbricht. He was a young, peaceful, first-time offender
serving a double life prison plus 40 years. The guy has been con-
demned to rot in prison for setting up a website called Silk Road.
There were people selling drugs on there, and he probably knew
that was happening.
The people who were selling drugs on there who got convicted
are already out of prison, and the guy who set up the website when
he was 26 years old is now ten years later, this fall, it will be the
tenth anniversary of his time in prison.
He was an Eagle Scout. He doesn’t claim that he was innocent,
he knows now that it was a crime. He’s asking for clemency; he’s
asking for his sentence to be commuted. He’s got a college degree;
he could be a productive member of society. So, I would like hope-
fully the Executive Branch to look at this case.
Madam Chair, I would like to submit for the record a summary
of Ross Ulbricht’s case from freeross.org, and remind people that
Ross was never prosecuted for causing harm or bodily injury, and
no victim was named at his trial. I ask unanimous consent to sub-
mit these two pages from that site.
Ms. JACKSON LEE. Without objection, so ordered.
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Mr. MASSIE. Thank you, and I yield back the balance of my time.
Ms. JACKSON LEE. The gentleman yields back. Mr. Biggs, do you
have—I do have some concluding remarks. Mr. Biggs, do you have
concluding remarks? I yield to you at this time.
Mr. BIGGS. Madam Chair, thank you. I’m going to forego my con-
cluding remarks because of the vote. Thank you, Madam Chair.
Thanks to the Witnesses.
Ms. JACKSON LEE. Thank you as well to the Witnesses. Let me
again, I do have some concluding remarks.
Let me thank Congresswoman Pressley; Mark Osler, Professor
Osler; Professor Barkow; Professor at one time but a CEO and
founder of the Taifa Group, Nkechi Taifa; Andrea James; Michael
Hurst; and the Honorable Morris Murray.
In concluding, let me say that the genesis of this hearing was ab-
solute necessity, and the thousands that languish in prison in our
Federal system that really warrant this response of a clemency or
a pardon. I think what the Witnesses have generated today is that
there is a bipartisan support for a response and for an answer.
As I conclude, I just want to briefly submit into the record the
story of Anthony Todd Robinson, who was an Army officer who was
arrested on mistaken identify for sexual assault and spent 27 years
in the State system in Texas.
He received from then-Governor Bush clemency, and he is also
now a board-certified law graduate and attorney helping those who
are particularly in need. That is Mr. Robinson.
Ms. JACKSON LEE. In addition, Michelle Miles, Pedro Torres,
Waylon Wilson, are all individuals released under this system.
They have not contributed to crime; they’ve contributed to society’s
best. They have made an economic contribution to our engine of
our economy.
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We must recognize that there are different times when people
were incarcerated and arrested, convicted, and from the time that
they come and seek clemency.
Very quickly, Mr. Hernandez, you tell a powerful story. Can you
just quickly say why you are seeking a pardon?
Mr. HERNANDEZ. The reason I’m seeking a pardon is to make me
whole again, to give me a chance to be back, as you could say, my
civil rights. Whether that’s to hold public office or to rent an apart-
ment or to get a certification or a license—
Ms. JACKSON LEE. You are a different person today than you
were before, is that correct?
Mr. HERNANDEZ. Excuse me, ma’am, what was that?
Ms. JACKSON LEE. You’re a different person today than you were
at the time of your criminal activity.
Mr. HERNANDEZ. Oh, yes, even when I wrote President Obama,
I told him I wasn’t in a position to tell him I deserved life or free-
dom. What I could tell him was that I was a changed person. That
I wasn’t that 18-year-old kid that sold drugs over 15 years ago.
Ms. JACKSON LEE. All right, thank you. Let me quickly go to Mr.
Underwood. Can you explain how clemency can be used to right the
wrongs of a tough-on-crime era that was an era of really lack of
options, no one thought creatively.
Yes, drugs were horrible, and I defend those people who at that
time felt that was the way to go. There was no options. Then it
lasted forever.
Mr. UNDERWOOD. Yes, ma’am. Well, one thing they could do
since is look at resentencing. Could look at a person and see that
they’re not the person they were. They can determine and look at
resentencing. It’s not a get-out-of-jail-free card. A look at resen-
tencing is for a District Court Judge after a thorough vetting of the
individual and look at them and see that they’re not who they were
when they came in many years ago, that they’re a reformed person
and that they can contribute to society as an American citizen.
Ms. JACKSON LEE. Thank you. Ms. Taifa, on the issue of Marcus
Garvey, let me just add to the point very quickly, the time is run-
ning. That many people fighting social ills were caught up in the
criminal justice system. Marcus Garvey, that happened to him, and
he deserves the respect of a response of the pardon.
Is that your view? Ms. Taifa?
Ms. TAIFA. I said absolutely, yes, he definitely deserves a pardon.
We need closure to that era in history.
Ms. JACKSON LEE. Thank you so very much. Again, I want to
thank all the Witnesses. The guiding post is that we must do some-
thing to reform the clemency and pardon process. This oversight
hearing was not a first step. I believe it should be a comprehensive
step.
We do need to meet with the Pardon Attorney, we’ll insist that
we do so. As well, we need to begin to reform this process imme-
diately, for there are too many mothers and fathers and people who
are seeking to do better in this nation.
Again, my appreciation to all the Members who participated.
This concludes today’s hearing. Thank you to our distinguished
Witnesses for attending.
199
Without objection, all Members will have five legislative days to
submit additional written for the witnesses or additional materials
for the record. Now, this hearing is adjourned.
Thank you to the Witnesses.
[Whereupon, at 11:14 a.m., the Subcommittee was adjourned.]
QUESTIONS AND ANSWERS FOR THE RECORD
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