Presidential Clemency and Opportunities for Reform, House hearing transcript (March 5, 2020), GovInfo CHRG-116hhrg41289, PDF
Summary
The House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties, chaired by Steve Cohen, examined presidential clemency and opportunities for reform on March 5, 2020 (Serial No. 116–78). Witnesses were Kemba Smith Pradia of the Kemba Smith Foundation, Cynthia W. Roseberry of the American Civil Liberties Union, Professor Mark Osler of the University of St. Thomas School of Law and Rachel E. Barkow of New York University School of Law. Pradia testified to being sentenced in 1994 to 24-1/2 years in Federal prison with no prior record, and to being freed from that sentence by a U.S. President in an act of mercy. Judiciary Committee Chairman Jerrold Nadler said thousands of petitions for clemency remain pending with the Department of Justice's Office of Pardon Attorney.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
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PRESIDENTIAL CLEMENCY AND OPPORTUNITIES
FOR REFORM
HEARING
BEFORE THE
SUBCOMMITTEE ON THE
CONSTITUTION, CIVIL RIGHTS, AND CIVIL
LIBERTIES
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
SECOND SESSION
MARCH 5, 2020
Serial No. 116–78
Printed for the use of the Committee on the Judiciary
(
Available http://judiciary.house.gov or www.govinfo.gov
U.S. GOVERNMENT PUBLISHING OFFICE
41–289 WASHINGTON : 2020
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COMMITTEE ON THE JUDICIARY
JERROLD NADLER, New York, Chairman
ZOE LOFGREN, California DOUG COLLINS, Georgia,
SHEILA JACKSON LEE, Texas Ranking Member
STEVE COHEN, Tennessee F. JAMES SENSENBRENNER, JR.,
HENRY C. ‘‘HANK’’ JOHNSON, JR., Georgia Wisconsin
THEODORE E. DEUTCH, Florida STEVE CHABOT, Ohio
KAREN BASS, California LOUIE GOHMERT, Texas
CEDRIC L. RICHMOND, Louisiana JIM JORDAN, Ohio
HAKEEM S. JEFFRIES, New York KEN BUCK, Colorado
DAVID N. CICILLINE, Rhode Island JOHN RATCLIFFE, Texas
ERIC SWALWELL, California MARTHA ROBY, Alabama
TED LIEU, California MATT GAETZ, Florida
JAMIE RASKIN, Maryland MIKE JOHNSON, Louisiana
PRAMILA JAYAPAL, Washington ANDY BIGGS, Arizona
VAL BUTLER DEMINGS, Florida TOM MCCLINTOCK, California
J. LUIS CORREA, California DEBBIE LESKO, Arizona
MARY GAY SCANLON, Pennsylvania, GUY RESCHENTHALER, Pennsylvania
Vice-Chair BEN CLINE, Virginia
SYLVIA R. GARCIA, Texas KELLY ARMSTRONG, North Dakota
JOE NEGUSE, Colorado W. GREGORY STEUBE, Florida
LUCY MCBATH, Georgia
GREG STANTON, Arizona
MADELEINE DEAN, Pennsylvania
DEBBIE MUCARSEL-POWELL, Florida
VERONICA ESCOBAR, Texas
PERRY APELBAUM, Majority Staff Director & Chief Counsel
BRENDAN BELAIR, Minority Staff Director
SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS,
AND CIVIL LIBERTIES
STEVE COHEN, Tennessee, Chair
JAMIE RASKIN, Maryland MIKE JOHNSON, Louisiana,
ERIC SWALWELL, California Ranking Member
MARY GAY SCANLON, Pennsylvania LOUIE GOHMERT, Texas
MADELEINE DEAN, Pennsylvania JIM JORDAN, Ohio
SYLVIA R. GARCIA, Texas GUY RESCHENTHALER, Pennsylvania
VERONICA ESCOBAR, Texas BEN CLINE, Virginia
SHEILA JACKSON LEE, Texas KELLY ARMSTRONG, North Dakota
JAMES PARK, Chief Counsel
PAUL TAYLOR, Minority Counsel
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CONTENTS
MARCH 5, 2020
OPENING STATEMENTS
Page
The Honorable Steve Cohen, Chairman, Subcommittee on the Constitution,
Civil Rights, and Civil Liberties ......................................................................... 1
The Honorable Mike Johnson, Ranking Member, Subcommittee on the Con-
stitution, Civil Rights, and Civil Liberties ......................................................... 21
The Honorable Jerrold Nadler, Chairman, Committee on the Judiciary ............ 23
The Honorable Doug Collins, Ranking Member, Committee on the Judiciary .. 25
WITNESSES
Kemba Smith Pradia, Founder, Kemba Smith Foundation
Oral Testimony ................................................................................................. 29
Prepared Testimony ......................................................................................... 33
Cynthia W. Roseberry, Deputy Director, National Policy Advocacy Depart-
ment, America Civil Liberties Union
Oral Testimony ................................................................................................. 37
Prepared Testimony ......................................................................................... 40
Mark Osler, Professor and Robert and Marion Short Distinguished Chair
in Law, University of St. Thomas School of Law
Oral Testimony ................................................................................................. 45
Prepared Testimony ......................................................................................... 47
Rachel E. Barkow, Vice Dean and Segal Family Professor of Regulatory
Law and Policy and, Faculty Director, Center on the Administration of
Criminal Law, New York University School of Law
Oral Testimony ................................................................................................. 53
Prepared Testimony ......................................................................................... 56
LETTERS, STATEMENTS, ETC. SUBMITTED FOR THE HEARING
Items for the record submitted by the Honorable Steve Cohen, Chairman,
Subcommittee on the Constitution, Civil Rights, and Civil Liberties ............. 3
APPENDIX
Items for the record submitted by The Honorable Mary Gay Scanlon, Sub-
committee on the Constitution, Civil Rights, and Civil Liberties .................... 85
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PRESIDENTIAL CLEMENCY AND
OPPORTUNITIES FOR REFORM
THURSDAY, MARCH 5, 2020
HOUSE OF REPRESENTATIVES
SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL
LIBERTIES
COMMITTEE ON THE JUDICIARY
Washington, DC.
The subcommittee met, pursuant to call, at 9:06 a.m., in Room
2141, Rayburn House Office Building, Hon. Steve Cohen [chairman
of the subcommittee] presiding.
Present: Representatives Cohen, Nadler, Raskin, Scanlon, Dean,
Garcia, Jackson Lee, Johnson, Jordan, Collins, Reschenthaler,
Cline, and Armstrong.
Staff Present: David Greengrass, Senior Counsel; Madeline
Strasser, Chief Clerk; Moh Sharma, Member Services and Out-
reach Advisor; Anthony Valdez, Staff Assistant; John Williams,
Parliamentarian; James Park, Chief Counsel; Will Emmons, Pro-
fessional Staff Member; Matt Morgan, Counsel; Paul Taylor, Minor-
ity Counsel; and Andrea Woodard, Minority Professional Staff
Member.
MR. COHEN. The subcommittee of the full committee, the Sub-
committee on the Constitution, Civil Rights, and Civil Liberties
will come to order. Without objection, I am the chair, and I am au-
thorized to declare a recess of the subcommittee at any time. I wel-
come everyone to today’s hearing on presidential clemency and op-
portunities for reform. I will recognize myself for an opening state-
ment.
Not far from here, almost 57 years ago, Dr. Martin Luther King
spoke movingly to remind America of the fierce urgency of now, be-
cause now is the time to make justice a reality for all of God’s chil-
dren.
We hold this hearing today to remind America that today there
are few things more fiercely urgent than the need to grant clem-
ency to the thousands who suffer from the burdens of excessive and
unjust imprisonment, or the collateral consequences stemming
from their criminal convictions.
Perhaps not coincidentally, these burdens are disproportionately
borne by people of color.
The Constitution provides the President with broad authority to
grant clemency because the Framers understood that the criminal
justice needed a safety valve that would guard against excessive or
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unjust punishments. Article II, Section 2 gives the President the
power to, quote, ‘‘grant reprieves and pardons for offenses against
the United States except in cases of impeachment,’’ unquote. Until
fairly recently, most Presidents were relatively generous in grant-
ing clemency. According to a statistical analysis by one of our wit-
nesses, Professor Rachel Barkow, between 1892 and 1930, 27 per-
cent of clemency applications resulted in some form of clemency.
As recently as the 1970s, President Carter granted 21 percent of
the petitions he received; President Ford granted 27 percent; and
President Nixon, who was famously known as a law and order
President, nonetheless, he granted 36 percent of clemency peti-
tions.
It was only the beginning of the 1980s that clemency grants
began to decline sharply. I have long been concerned with the stin-
giness with which modern Presidents have granted clemency. And
between 2013 and 2014, I wrote four different letters to my favorite
President, President Obama, and then Attorney General Holder,
urging the President to grant more clemency petitions, and au-
thored two opinion pieces on the subject. And I would ask unani-
mous consent to insert these letters and opinions pieces into the
record. Without objection, so done. Thank you.
[The information follows:]
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MR. COHEN FOR THE OFFICIAL RECORD
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Mr. COHEN. With President Trump, I am afraid that we have re-
ceived a new low when it comes to the clemency power in terms
of the number of petitions he has granted, his seemingly self-inter-
ested motivations for his clemency decisions, his unwillingness to
use a systematic, transparent objective process for considering
clemency petitions.
In President Obama’s situation, he was a little slower, or a lot
slower than I thought he should be, and I exorcised him every time
I saw him. Every opportunity I had with him, I told him we need
to get clemencies done and get it started.
He was a very thorough President. He set up a board. They did
issue, I think it was, give or take, 2,500 commutations or pardons
toward the end. They were all done objectively through a process.
I thought he should be done closer to 10,000 or more, because there
were so many people languishing. But he did some, and he got it
started.
With Trump, we have seen it change, though. There have been
very few pardons issued, commutations issued, and most of them
have been based on President Trump’s whims, his noting who sup-
ported the commutation or pardon request shows that they were
not done in an objective basis, but a subjective basis, not what the
law decided on an objective, look at your record and your sen-
tencing, and your reformation, but who wanted you to be pardoned,
and that is not the way we are supposed to do it.
Presidents have customarily relied upon the recommendations of
the pardon attorney who is within the Department of Justice in
making decisions about clemency. Well, that process is subject to
legitimate criticism because Justice is often not interested in grant-
ing clemencies that are involved with prosecutions that underlings
in Justice might have secured. They are still involved in the clem-
ency process and have been. That process is the one we have, but
President Trump, in contrast, has completely circumvented even
that process, the Department of Justice has, in making clemency
decisions, not asking them to look at cases and give him advice, but
treating clemency like it is solely his personal gift to bestow upon
individuals, like the king, from which this power kind of came over-
seas and into our Constitution.
And according to The New York Times, most of his clemency
grants were the results of these inside connections. Sylvester
Stallone for the posthumous clemency of Jack Johnson, Kardashian
woman for the other famous pardon of Alice Marie Johnson, and
a few of her friends or people that she met while incarcerated. And
then there has been others, similar with Milken and others, Eddie
DeBartolo.
So those were inside connections who were even boasted of or
publicized by President Trump, and sometimes it was the pro-
motion of Fox News, but not the clemency office in the Department
of Justice.
So, according to a review conducted by The Washington Post, all
but five of the 24 people who have received clemency from Trump
had a line into the White House, or currency with his political
base, meaning that that is not a blind process. Just last month,
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President Trump issued seven pardons, four commutations, includ-
ing a pardon for the 1980s, quote, junk bond king, Michael Milken,
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the very personification in culture and life of Wall Street greed and
excess, who was convicted and served prison time for securities
fraud and conspiracy.
According to The New York Times, Mr. Milken’s pardon was a
result of lobbying by many individuals with close ties to President
Trump, including his personal lawyer, Rudy Giuliani, who, I think,
earlier, might have been his personal prosecutor, and his largest
donor, Sheldon Adelson. Treasury Secretary Steve Mnuchin, Jared
Kushner, and Ivanka Trump also advocated for that pardon.
The Milken pardon shines a harsh light on the fact under Presi-
dent Trump, pardons are mainly for the rich, the famous, and the
well-connected. And that was in spite the fact that Mr. Milken,
when he was convicted, was told not to make any deals. And then
he got a $50 million fee for doing the deal between Time Warner
and Comcast. That merger—was it Comcast? I think it was. CNN.
Time Warner. Whoever it was, it was a Ted Turner deal. He got
$50 million and wasn’t supposed to do it.
Even when President Trump grants clemency in a deserving
case, he does so seemingly for the wrong reasons, and through the
wrong means.
In June 2018, he commuted the sentence of a lady who was one
of my constituents at the time, now an Arizonan, Alice Marie John-
son, a 63-year-old woman serving a life sentence for a non-violent
drug offense, but only after reality TV star Kim Kardashian lobbied
on her behalf. While I strongly supported the commutation of Ms.
Johnson, as I have other constituents of mine, President Trump ap-
pears to have considered the merits of her application only because
she attracted the attention of a celebrity patron. Most of my con-
stituents, or all of my constituents, do not have that luck. Simi-
larly, President Trump posthumously pardoned boxer Jack John-
son, whose case was brought by Sylvester Stallone.
Justice is supposed to be blind. The thousands serving time for
nonviolent drug offenses did not have Kim Kardashian or Sylvester
Stallone to plead their cases for clemency, but they are just as de-
serving of relief, or maybe more so. These nonviolent individuals
should be released based on their records and not celebrity en-
dorsements, or arbitrary whims of the President.
I have written President Trump and suggested setting up the
panel like President Obama had, and grant the clemency. Even
better than the bill that I think Congressman Collins might have
been a sponsor of, or the prime sponsor, the Second Chance Act,
which I proudly supported, even when Democrats were resistant
because it was a step in the right direction and a good thing to do.
But Second Step is not as good as, or can cover as many people as
clemency can. And so I urged President Trump to use clemency,
but did not hear back from him.
Clemency should be expanded to become a routine part of the
criminal justice system. The decisions as to when clemency should
be granted must be made on objective, transparent, and systematic
processes. This is right and just. This is the rule of law. President
Trump has granted clemency in 24 cases, but there have been more
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than 7,700 petitions filed during his President thus far. So it is not
hard to figure. That is less than 1 percent, way less than 1 percent.
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.3 percent, by the way, and nowhere near the 36 percent of Richard
Nixon.
Our Nation’s prison population is larger than ever, and many re-
main in prison because of mandatory minimums and sentencing
disparities that Congress repealed without making the repeal retro-
active. In other words, many remain in prison based on public pol-
icy of Congress, avoiding leaving many unjustly in prison. And
while my concern is for justice and for those without their families,
and wallowing in our prison system, everybody pays for this. The
prison system is extremely expensive, and taxpayers are paying for
this lack of action.
We will hear from our witnesses’ proposals for reform of the
clemency process, and ways to address the need for clemency. In
2013, I proposed the creation of a compassionate release review
board that would review sentences of current prisoners and make
clemency recommendations. I also introduced H.J. Res. 8, a con-
stitutional amendment that would ensure that no President could
abuse the clemency power to escape accountability for his or her
own crimes. I hope we consider these and other ideas.
I thank our witnesses for being here. I am looking forward to a
fulsome discussion on the subject, and I would now recognize the
ranking member of the subcommittee, the gentleman from Lou-
isiana, Mr. Johnson, for his opening statement.
Mr. JOHNSON. Thank you, Mr. Chairman, and welcome to the
House Constitution Subcommittee. I am glad to see students in the
audience. We are talking about important constitutional matters
here, so I hope you find it interesting.
This is an interesting hearing. It is on the presidential clemency
power. We get that power out of the Constitution. I have to say at
the beginning, I always disagree with the guy sitting next to me,
because we are in different parties, and I, of course, disagree with
his characterization of President Trump’s clemency decision proc-
ess. And I am not so sure The New York Times is the best source
to evaluate the objectivity of President Trump.
But that aside, Article II, Section 2 of the Constitution is where
we find the clemency power, and it gives the President the author-
ity, as the Constitution says, quote, ‘‘to grant reprieves and par-
dons for offenses against the United States except in cases of im-
peachment,’’ unquote.
Chief Justice John Marshall described the exercise of the pardon
power in 1833, and he said it this way: He said, quote, ‘‘It is an
act of grace preceding from the power entrusted with the execution
of the laws, which exempts the individual on whom it is bestowed,
from the punishment the law inflicts for a crime he has com-
mitted,’’ unquote.
Pardons have both a public and a private meaning, and to some
people, it even has a spiritual component. You think about what
the Apostle Paul explained to the church in Corinth in the New
Testament Book of Second Corinthians. He said it this way: Now,
if anyone has caused pain, he has caused it not to me but in some
measure to all of you. For such a one, this punishment by the ma-
jority is enough. So you should rather turn to forgive and comfort
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him, or he may be overwhelmed by excessive sorrow. So I beg you
to reaffirm your love for him.
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I mean, that is what the Bible says. So the commission of a
crime, of course, does harm everyone, and that is why crimes must
be punished by government. That is kind of the role of government
is to maintain the rule of law. But not forgiving also harms every-
one, not only by denying individuals themselves forgiveness when
warranted, but by denying society as a whole, the catharsis that
comes with forgiveness, along with the ability to move on as a peo-
ple.
And, so, our Constitution grants the chief executive not just the
power to punish, but also the power to, in a legal sense, forgive.
That is a powerful thing. Of course, along with any public power
in democracy comes politics, and the larger significance of any
presidential pardon regarding any particular person can too often
be obscured today by partisan political rhetoric. It happens all the
time. You heard a little bit of it already this morning. But as Alex-
ander Hamilton wrote of the pardon power in Federalist Paper No.
74, quote, ‘‘Humanity and good policy conspire to dictate that the
benign prerogative of pardoning should be as little as impossible,
fettered or embarrassed. The criminal code of every country par-
takes so much of necessary severity that without an easy access to
exceptions in favor of unfortunate guilt, justice would wear a coun-
tenance too cruel,’’ unquote.
See, our Founding Fathers sought to create a system in which
lines of accountability were clear so that people could make reason-
able decisions regarding whom was responsible for what when they
cast their votes for candidates. Too much bureaucracy foils that
plan of our Founders today. As one of the witnesses here today,
Professor Mark Osler, says in his written testimony, quote, ‘‘The
Obama administration created a system that not only left the bro-
ken system in place, but added bureaucracy to it. The fact that
good cases were left on the table is revealed not only by the re-
peated rejection of Alice Marie Johnson,’’ who we heard about this
morning, ‘‘but the thousands who have been released under the
First Step Act. A review by the DOJ’s Inspector General revealed
a wealth of problems with the Obama program’s implementation,
many of which could have been avoided if the underlying process
had been restructured,’’ unquote.
Whatever its flawed implementation in any given circumstance,
the constitutional clemency power should not be amended to limit
presidential discretion. As Professor Osler also states, quote,
‘‘Clemency, after all, is not suited to be a tool of tyranny. Tyrants
gain power by putting people in prison, not by letting them out.
Hamilton was perhaps getting to that and referring to clemency as
a benign prerogative. We may object to particular grants, but re-
strictions would be consistent with neither the constitutional
scheme or the intent of the Framers,’’ unquote.
I hope our hearing today will both recognize the need to protect
Americans from dangerous criminals which, we all respect but also,
allow some breathing space for the universal soul of the pardon
process, namely, forgiveness. The pursuit of law and order, the en-
couragement of redemption are not mutually exclusive pursuits.
These are quintessential American values.
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I will make one more Bible quote, since we are talking about for-
giveness. Micah 6:8 is in the Old Testament. It says, He has shown
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23
the old man what is good and what the Lord requires if you are
to act justly, love mercy, and walk humbly with your God. It must
be possible to do all three because the creator who has endowed us
with all of these inalienable rights and freedoms requires it of us.
I hope we can do that.
I look forward to hearing from all of our witnesses here today,
and thank you again for being with us. I yield back.
Mr. COHEN. Before I recognize the chairman for his statement,
I want to address the school children who are here. You heard
some remarks by my colleague suggesting I had injected politics
into this and been partisan. I hope you were here when I let you
know that I have criticized President Obama, too, for what I
thought was a late process and not issuing enough commutations;
I wrote letters that I have entered into the record about President
Obama; and I supported President Trump’s Second Chance Act;
and that I supported Alice Marie Johnson’s pardon, or commuta-
tion, excuse me.
But the fact is that is not partisan. And to say The New York
Times can’t be objective, nobody can be in favor of giving a pardon
or a commutation to a junk bond king worth billions of dollars who
objects to and overrules the court’s orders, and flagrantly does.
I recognize Mr. Nadler.
Mr. JOHNSON of Louisiana. Touche, and I actually love the guy.
I really do.
Chairman NADLER. Thank you, Mr. Chairman. Before I begin my
prepared remarks, I would like to start by commenting on some of
the remarks we have just heard in the last few minutes. The gen-
tleman from Louisiana, I think it is, said that tyranny—and
quoted, I think, Alexander Hamilton. Tyranny can result from put-
ting people in jail, not from letting people out of jail. I would point
out it can result either way.
If you have a President or any executive who puts people in jail
when he shouldn’t, who violates the rule of law, who violates due
process, obviously you are on the road to tyranny. If you have a
President who uses the pardon power to pardon his own confed-
erates in crimes, to pardon all of his friends, to pardon anybody
who may have committed a crime in his behalf so that he can
evade the rule of law, then that can lead to tyranny, too.
And I would quote, the debates at the Constitutional Convention,
when they were debating the pardon power, and James Iredell
from Pennsylvania asked, or maybe the pardon power that we are
designing here is too broad, and what if a President committed—
what if a President engaged in criminal conspiracy and pardoned
his co-conspirators? And James Madison answered, Well, that could
never happen because a President would immediately—any such
President would be impeached. I would submit the history of the
last few months shows that Madison was wrong, and that any such
President would not necessarily immediately be impeached, unfor-
tunately, so we do not have an effective guarantee against tyranny
by a President, or by anybody else or by a tyrant or would be ty-
rant who would use the pardon power or threaten to use, as the
current President has, to pardon his own co-conspirators.
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Article II, Section 2 of the Constitution provides the President
with the power, quote, ‘‘to grant reprieves and pardons for offenses
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24
against the United States except in cases of impeachment.’’ The
fundamental purpose of the clemency power is to ensure that jus-
tice is tempered with mercy. Although presidential clemency is
commonly viewed as an occasional act of mercy, the Framers also
understood that clemency is also necessary to the fair administra-
tion of justice.
As Alexander Hamilton noted in Federalist 74 regarding the
clemency power, and I think this has already been quoted this
morning, without an easy access to exceptions in favor of unfortu-
nate guilt, justice would wear a countenance too sanguinary and
cruel. As such, presidential clemency should be a routine part of
the Federal criminal justice system. Unfortunately, over the past
several decades, under both Republican and Democratic adminis-
trations, the executive branch has failed to fully employ the clem-
ency power to help remedy injustice as the Framers intended.
For example, after decades of mandatory sentencing policies in
the so-called war on drugs, far too many non-violent Federal of-
fenders, disproportionately people of color, sit in prison unneces-
sarily, serving unduly harsh sentences. And many others continue
to face hardships after serving their time and seeking full entry,
reentry into their communities because of the collateral con-
sequences caused by their Federal convictions. Yet, thousands of
petitions for clemency remain pending with the Department of Jus-
tice’s Office of Pardon Attorney, to which the executive branch has
customarily delegated the responsibility of processing candidates
for clemency.
Presidential administrations of both parties have been rightly
criticized for deficiencies in the Department of Justice’s clemency
process. In fact, our witnesses today all agree that the current
process housed at the Justice Department, must be reformed in
order to increase the rate and diversity of clemency grants. Some
critics of the current process even believe that it should be taken
out of the Department of Justice altogether.
I am pleased that this hearing will allow us to examine various
proposals for reforming the clemency process. While the current
DOJ process may be in real need of reform, at least it is a process.
Legitimate questions have been raised about President Trump’s
seemingly arbitrary approach to clemency, which seems to have
completely bypassed the Department of Justice.
To be clear, concerns that special access to the presidency plays
a role in the granting of clemency are not unique to President
Trump. This exercise of the clemency power over the past 3 years,
however, as pointedly demonstrated that special access to the
President is not just a factor in some clemency grants, but in this
administration, it may well be the only factor.
Just last month, President Trump granted clemency to 11 indi-
viduals. The New York Times reported that these recent clemency
grants came about through, quote, ‘‘An ad hoc scramble to bypass
formal procedures used by past Presidents,’’ and were, quote, ‘‘driv-
en by friendship, fame, personal empathy, and a shared sense of
persecution.’’
The Times also noted that every single one of their recipients
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had an inside connection or were promoted on Fox News. This is
not to say that every recipient of the clemency grant by President
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25
Trump is undeserving of mercy and forgiveness, but we must put
his clemency decisions in context.
To the point of this hearing, while President Trump has made
publicizing clemency grants a hallmark of his administration, he
has issued very few of them. According to one witness’s data anal-
ysis, he has granted only 24 out of 7,748 petitions received during
his administration, or .3 percent of petitions. These numbers are
exceptionally low even when compared to the historically low grant
of President Trump’s recent predecessors.
While Congress has little authority over the President’s exercise
of the clemency power, Congress does have the power to enact
criminal justice reform measures. I commend the President for join-
ing with Congress to enact the First Step Act into law 2 years ago.
That said, paving the way for more clemency grants does not lay
in a process that depends almost entirely on special access to the
White House. It is within President Trump’s power today to create
a process that ensures clemency petitions are treated fairly as a
routine aspect of the Federal criminal justice system. To the extent
that Congress can assist with this process, we should examine all
options available to us.
With that, I would like to thank the witnesses for appearing, and
I look forward to hearing their testimony today.
Mr. COHEN. Thank you, Mr. Chair. I now recognize the ranking
member of the committee and the prime sponsor of the First Step
Act, Mr. Collins of Georgia.
Mr. COLLINS. Thank you, Mr. Chairman.
I came here this morning on a day in which we are flying out,
hoping that we would talk about a positive thing that we are work-
ing for, and instead, they can’t help themselves.
The chairman of the subcommittee, the chairman of the com-
mittee can’t help themselves but to politicize. They just don’t like
the President. Let’s put a sign in this committee room. As long the
Democrats are—we can put up there we don’t like the President.
We know it, so let’s get over it, okay.
Yes. I mean, if we want to go back, and we will talk about Presi-
dent Obama on the last day commuting 300, including Chelsea
Manning? I mean, if we want to talk about these, let’s do that, but
why don’t we talk about the positive? We don’t want to, because
we failed in impeachment, and we can’t forget it. I just—it is just
stunning to me. This committee, which can do so much to help
those that are incarcerated, those that are facing the criminal jus-
tice system, those that are going through it, has frankly just been
AWOL the last year and a half.
But we did something in the last term, and in fact, this what
makes this so much sadder. At last Congress, I did partner with
a number of my colleagues across the aisle, dear friends, Hakeem
Jeffries and others, to get the First Step Act to President Trump’s
desk for a signature. Yes. President Trump’s desk for a signature,
after 8 years under the previous administration, which we talked
about it a lot. I was supportive of those measures. It never hap-
pened. Never happened. So the first meaningful stuff that actually
happened is from President Trump.
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As many of you know, that bill was near and dear to my heart.
It was something we put a lot of time and effort into. And my col-
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26
leagues on the other side of the aisle, Hakeem in particular, who
did yeoman’s work on his side and our friends in the Senate who
added things to it, but also worked yeoman’s work, made some-
thing different for the American people.
When Matthew Charles walked into the room just beside me in
that library and hugged me, and as he had done with Hakeem and
others, saying I am now out of prison because of the First Step Act,
thank you, and now his life has changed and is different. Those are
the positive stories we need to talk about. Those are the things
that clemency can bring, that pardons can bring. Just simply grip-
ing at a President you don’t like because the way that it has been
handled, and because you can go back on both sides and talk about
how Presidents have not done it over the past 25 years is not the
way to start this.
Since the First Step Act was signed into law, we have seen com-
munities restored, hope renewed, and families reunited. That legis-
lation is the measure of mercy that should serve as a guide to-
wards potential future reforms. The First Step Act ensures dan-
gerous violent criminals serve their time behind bars. It excludes
the Nation’s most dangerous offenders from applying any time
credit for their sentences, and no prisoner that has a recidivism
risk level higher than low is eligible for prerelease into custody
under the First Step Act. And the warden, who ultimately knows
the prisoner best, makes the final decision. There is a lot of lies
going on about this act. This is what it actually does.
And it all goes back to what I used to say about this building,
monies and morals. It is how we spend our money for people that
we do incarcerate, that our morals are how we feel about them,
that we give them a chance when they get out to make something
of their life. Ninety-five percent of all individuals who go to jail get
out. They don’t go there to die. They get out. What are we doing
as a Federal system, and how are we encouraging State and locals
to look at them as human beings that they are, many who made
mistakes, many of them made tragic mistakes, many of them with
mental health, with addictions and other things, we have got to
provide a better way.
For those 5 to 10 percent who need to stay in forever, they have
got plenty of jail space for them. If you want to live outside the
law, and you want to do something so heinous, you are going to
stay in there, and nobody has said you can get out. But for those
who deserve a chance, that is what this bill does.
The First Step Act embodies the mercy and forgiveness that
must accompany any law enforcement regime governing human af-
fairs. I stood by the President when he made his remarks last year
at the Prison Reform Summit and the First Step Act celebration,
when he stated this landmark legislation will give countless cur-
rent and former prisoners a second chance at life, and a new oppor-
tunity to contribute to their communities, their States, and their
Nations.
As President, I pledge to work with both parties for the good of
the whole Nation. The more I spoke and met with those individ-
uals, those involved in our criminal justice system, the more clear
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it became, that unfair sentencing rules were contributing to the
cycle of poverty and crime like nothing else before. It was time to
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27
fix this broken system and to improve the lives of so many non-
violent prisoners who will have opportunity to participate in voca-
tional training, education, drug treatment programs.
When they get out of prison, they will be ready to get a job, in-
stead of turning back to a life of crime. As we consider executive
clemency process, I would hope the same sentiments will help
guide us today, even with the start of this hearing.
The constitutional authority to the President to pardon offenders
under the Constitution is very broad, and not up for changing by
law in this committee. That is a constitutional guarantee.
You want to have a constitutional amendment, maybe so, but not
any other way. Congress doesn’t have the constitutional authority
to restrict the President’s pardon authority in any significant way.
And the Constitution gives the President vast ways to decide who
may receive a pardon and when it be issued.
But there is also precedent for Congress to provide a variety of
ways in which we can, with the Department of Justice and other
entities, assist the President in evaluating applications. The result
of any such evaluation is simply advisory, and they cannot bind the
President’s Article II authority to pardon.
The President also can’t be required to consult with any person
or entity before considering a pardon. But the President can con-
sider standards for reviewing pardon petitions, and the Depart-
ment of Justice has offered just that in the past and continues to
do so today.
Factors taken into consideration include post conviction conduct,
character, and reputation, seriousness and relative offense, accept-
ance of responsibility, remorse, atonement, and the need for relief,
and official recommendations and reports. Of course, beyond such
official guidance, the President can always consult with his beliefs
and faith understandings.
In my experience, and from my background, I have been moved
again by the words of the Psalmist who said, You, Lord, are for-
giving and good, abounding in love all who call to You. Stated in
the New Testament in Corinthians, he says that we are committed
to a message of reconciliation. That is faith. But the best many
times comes from just the simple instructions that we find in Ephe-
sians, that says, Be kind and compassionate, one to another, for-
giving each other just as Christ forgave you.
The fundamental message of Scripture which drives many, in-
cluding myself, speaks of promise, hope, and redemption always
following human cruelty. It is with that spirit that I would hope
from here on out we approach this subject today, because at the
end of the day, it is not about what goes on on this stage right
here. It is about those who right now who are behind bars, it is
behind those who are getting ready to enter the criminal justice
system, who are going through the struggles that this committee
can help and can be a part of. And if we focus on them, then lives
can be changed.
Instead of making it harder, we ought to be reaching out with
a hand to lift up, because they are the least among us. With that,
I yield back.
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Mr. COHEN. Thank you. Now that we have had our spiritual
hour, I would remind the witnesses and the committee that this
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28
hearing is entitled, and is, Presidential Clemency and Opportuni-
ties for Reform, not what I have done in the past and why you
should elect me Senator from Georgia. I will now introduce each of
the witnesses, and after each introduction, will recognize that wit-
ness for his or her oral testimony. Please note that your written
statement will be entered into the record. I ask you to summarize
your testimony to 5 minutes. To help you stay within the time,
there is lights in front of you. The green light means go. The yellow
means you have got a minute left, and red means you should be
finished at that time.
Each witness is under a legal obligation to provide truthful testi-
mony in answers to the subcommittee and that any false statement
you make today may be subject to prosecution under Section 1001
of Title 18 of the United States Code. Sometimes people have been
sworn in by committees, sometimes not. It is not a requirement,
and there is nothing in law to say that you should be sworn. That
would mean that you would take an oath under God as a witness
to do so. That is what I call the Mitt Romney oath, that God re-
quires you to do what is right. But we have only seen that happen
once recently, so I won’t do that here.
Our first witness is Kemba Smith Pradia. In 1994, Mrs. Pradia,
who had no prior criminal record, was sentenced to 24-1/2 years in
prison for conspiracy in her boyfriend’s illegal drug-related activi-
ties, a nonviolent, first-time offense. Due to Federal sentencing
guidelines in place, the court could not account for the substantial
mitigating factors in her case, including that she participated in
her boyfriend’s criminal activities out of fear for her life. In 2000,
President Clinton commuted her sentence to time served. In De-
cember 2014, she was appointed to the Virginia Criminal Sen-
tencing Commission. In 2019, she was appointed to the Virginia
Parole Board, the first former inmate to serve on the parole board.
She is also the author of Poster Child, a book about her experiences
with the criminal justice system, and works as an advocate for
criminal justice reform.
After her release, Mrs. Pradia earned a Bachelor’s degree in so-
cial work from Virginia Union University and a law degree from
Howard University School of Law. Thank you, and you are recog-
nized. Was there a mistake there? You are shaking your head, but
you are recognized for 5 minutes. Did we make a mistake in your
intro?
Ms. PRADIA. No law degree.
Mr. COHEN. Okay. You are recognized.
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STATEMENTS OF KEMBA SMITH PRADIA, FOUNDER, KEMBA
SMITH FOUNDATION; CYNTHIA ROSEBERRY, DEPUTY DIREC-
TOR, NATIONAL POLICY ADVOCACY DEPARTMENT, AMER-
ICAN CIVIL LIBERTIES UNION; MARK OSLER, PROFESSOR
AND ROBERT AND MARION SHORT DISTINGUISHED CHAIR
IN LAW, UNIVERSITY OF ST. THOMAS SCHOOL OF LAW; AND
RACHEL BARKOW, VICE DEAN AND SEGAL FAMILY PRO-
FESSOR OF REGULATORY LAW AND POLICY AND FACULTY
DIRECTOR, CENTER ON THE ADMINISTRATION OF CRIMI-
NAL LAW, NEW YORK UNIVERSITY SCHOOL OF LAW
STATEMENT OF KEMBA SMITH PRADIA
Ms. PRADIA. Good morning, committee members. I am humbled
to have this opportunity to testify before you today. Despite me
being already committed to speak at North Carolina Central Uni-
versity later this evening, it was important for me to be here. My
prayer today is that our testimonies will go beyond these walls, and
move the hearts of Congress and our President.
Almost 20 years ago, President Clinton changed my life forever
by freeing me from an excessive prison sentence. It was a U.S.
President that had the power to change my fate. It was an act of
mercy. In 1994, I was sentenced to 24-1/2 years in Federal prison,
even though I had no prior record. The prosecutor said I didn’t
handle, use, or sell the drugs that were involved, and I didn’t com-
mit a violent crime.
Ultimately, I was a college student and girlfriend of a drug deal-
er who was abusive. I turned myself in to the authorities 7 months
pregnant with my first child and was denied bond.
But in the 1990s, there was no room to see me as a human being.
I was seen as a statistic, another single young black mother who
was involved with drugs. I was seen as a disposable, like my life
had no value. The judge sentenced me to 24 years and 6 months.
At 23 years old, I was sentenced to more time than I had been liv-
ing on this earth, and I wasn’t supposed to be released until my
son was a grown man.
There were several factors that led to me receiving executive
clemency: First, the media. In particular, black media took interest
in reporting my story. There was a magazine called Emerge Maga-
zine that did an extensive article about my story which led to the
NAACP Legal Defense Fund, LDF, taking on my case pro bono. I
had two parents who were deeply dedicated and sacrificed a great
deal to support me, not only by caring for my son, making sure I
had money on my books, and prison visits, but my dad is actually
here in the room. They traveled across the country advocating for
my freedom, and educating the public about drug policy and sen-
tencing.
There were individuals in national organizations who organized
rallies and writing campaigns because they thought what happened
to me was unjust. In the 1990s, black women were one of the fast-
est-growing populations going to prison, so Elaine Jones, Director
of LDF, enlisted black women’s organizations in which she was a
member to invest in advocating for my release, organizations such
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as Delta Sigma Theta Sorority, Incorporated, Links, Incorporated,
and the National Council of Negro Women. It became bigger than
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30
just advocating for me. They were hoping to set a precedent for
others to receive their freedom.
There were even congressional Members who were on this very
committee such as my dad told me how he met with Congressman
John Conyers, who was chair at the time, but there were Congress-
man Bobby Scott and Maxine Waters who were champions in advo-
cating for my release.
The criminal justice reform movement wasn’t what it is today.
And after serving 61⁄2 years, it was a modern day miracle for Presi-
dent Clinton to grant me executive clemency in December 2000. It
was said that he was trying to do a redemptive act during the 25th
hour of his presidency to write the wrongs of him signing the crime
bill that caused the big prison boom. I, like Alice Johnson, came
out singing praises to the President, even though there was some
people in the community who felt it extremely different than me.
A few days after my release, my mother saw me tearing up, and
she asked me what was wrong. And I told her that I was having
a hard time dealing with the fact that I left so many men and
women behind bars that deserve to be home too. One of those
women was Michelle West, who is still serving a double life sen-
tence, and has been incarcerated for 27 years. On the day that I
was released, I spent all day in the visitation room with my attor-
neys from LDF. As hours passed by, and no prison staff told us
anything, I had begun to think it, my commutation, wasn’t going
to happen. After my visit, and going through the squat and cough,
Michelle was the first person waiting for me outside the door as I
walked back on the yard to tell me, Kemba, you are going home.
They said your name on CNN. I remember vividly to this day how
the prison was on lockdown, and the women were yelling me well
wishes as I walked out of my unit to exit the prison yard.
Even though that was a surreal moment for me, the only thing
I can remember is the overwhelming feeling of heartache that took
over me. That heartache and survivors guilt motivated me to speak
about my experience, and I became a national and international
public speaker. My lived experience has led my role as a domestic
violence survivor, national advocate, and consultant in the criminal
justice arena for over 20 years, working with women and youth, na-
tional organizations, universities, and corporations and the media.
I held the position of State Advocacy Campaign Director with the
ACLU of Virginia, worked with senior White House and the United
Nations in Geneva, Switzerland, members of Congress, and I have
led trainings for Federal and State probation organizations across
the country. In 2019, I was appointed as a member of the Virginia
Parole Board by Governor Ralph Northam.
Today, I am not here just representing myself, I am representing
the formerly and currently incarcerated community. There are
some of us that have been in this movement for years. In 2016,
President Obama invited a group of us that had received executive
clemency from Presidents to the White House. We had the oppor-
tunity to discuss our reentry back into society and our lives now.
It was said that it was an historic day because that had never been
done before.
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President Obama commuted more sentences than any President
on record, which was over 1,700. Of those, were 568 incarcerated
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individuals with life sentences who applied. We are grateful for
what President Obama did, but we were also disappointed that he
wasn’t able to do more, because there were over 36,000 petitions
submitted. We were disappointed that Alice Johnson, Michelle
West, and William Underwood and other sentences had not been
commuted as well.
When President Trump came into office, we assumed that there
would be no progress with criminal justice reform as it related to
drug policy and sentencing, especially with Jeff Sessions being At-
torney General. We were wrong.
To my surprise, I was invited to the White House to hear Presi-
dent Trump introduce the First Step Act, and it evolved to include
language in which Congress was able to enact, and there have been
many beneficiaries of this legislation who are singing praises to
this administration.
We are all supportive and happy for those that are being re-
leased. My criticism, ever since President Trump has been in office,
is what about the clemency initiative, and the thousands of people
that are still waiting on a response. President Trump has only com-
muted 10 individual sentences since being in office. I was an advo-
cate for Alice Johnson. I am grateful that she has a champion like
Kim Kardashian who has access to the President to advocate for
her release. But there are others who are deserving of this act of
mercy, and the President is their last resort.
There are shortcomings of the Federal clemency process. Even
with my own situation, I became the poster child for sentencing,
drug sentencing gone wrong, but I know I received relief because
I had the privilege of my background, of being a college student
with two middle class parents who were advocating for my release
who had support from organizations that typically in the past had
conservative views when it came to criminal justice. Not everyone
has this exposure and access that I had, but they were just as de-
serving of this presidential act of mercy.
Mr. COHEN. You have to wrap up.
Ms. PRADIA. Just real—I will wrap up. Last year, I was invited
to the White House for a criminal justice reform strategy session,
discussing next steps of clemency. As I sat at the table, I noticed
that there was not a representative from any of the national orga-
nizations that have typically been involved in having these con-
versations. I participated, even though I must admit I was uncom-
fortable. I leaned into knowing that Van Jones and Topeka Sam sat
at these tables before me in order to generate movement on our
issues. Needless to say, after my participation, I heard nothing fur-
ther.
As this administration moves forward with the new clemency ini-
tiative, and putting the White House more directly in control of the
process than the Justice Department, I would strongly suggest you
include organizations that have been working on the issues for dec-
ades, and have a diverse group of individuals from attorneys, re-
searchers, social workers, people who are in the media who have
received commutations.
Most importantly, I challenge this administration to break Presi-
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dent Obama’s record with commutations. Some are critical of how
this power is being used to release President Trump’s allies. If I
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32
am brutally honest, I don’t care about them as long as you are re-
leasing my people out of prison who deserve the same opportunity
that I have been given, who are no threat to public safety, which
could even mean few violent offenders.
To this judicial committee and Congress, I urge you to be advo-
cates like Virginia Congressman Bobby Scott, Maxine Waters. I am
sure you hear from plenty of family members who live in your dis-
trict. Please bring these compelling stories of individuals who de-
serve second chances to this administration’s attention. Thank you.
[The statement of Ms. Pradia follows:]
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Mr. COHEN. Thank you. And I appreciate your history and your
testimony, but you were 5 minutes over. And the yellow light
means you have got one left minute, and the red light means your
time is up. We have got to go have votes soon, and we want every-
body to have a chance.
Our next witness is Cynthia Roseberry. Ms. Roseberry is Deputy
Director of National Policy Advocacy for the ACLU. Prior to joining
that organization, she was a member of the Charles Colson Task
Force, a bipartisan task force charged with examining overincarcer-
ation and making recommendations to the President, Congress,
and the Attorney General on reducing prison populations.
In 2014, she served as manager of the Clemency Project, a na-
tional pro bono effort to provide assistance to clemency applicants.
She has worked as a Federal defender in the Middle District of
Georgia. She has a J. D. From Georgia State University, a B.S.
From Wilberforce University. You are recognized.
STATEMENT OF CYNTHIA ROSEBERRY
Ms. ROSEBERRY. Mr. Chairman, Ranking Member Johnson, and
members of the committee, thank you for the opportunity to appear
before you today.
Thousands of people languish in Federal prison, subject to draco-
nian and unjust sentences because of the abolition of parole and
failure to retroactively apply reforms, like the sentencing provision
of the First Step Act. Long after they have served substantial time
in prison, been rehabilitated, and are ready to return to their com-
munities, tens of thousands of people remain incarcerated because
of the system’s failure to release them. And although it should not
be the lone response to overincarceration, the Article II clemency
power is a useful tool to begin to immediately correct the horror of
unnecessarily long sentences.
Clemency power belongs to the executive who has the broad dis-
cretion to use it, but it is precisely because this power is invested
in this way that there is a heightened need for the appearance and
substance of fairness and justice.
This is the foundation of our faith and our democracy. This
power must not be exercised with people in the same manner as
it is used for turkeys in November, sparingly and reserved for a
lucky few who are called to the attention of the executive because
of connection, financial status, or celebrity.
Thousands should have access to clemency. The average person
should be assured that their petition for clemency will not require
more than evidence of the need for mercy under the circumstances.
Without this assurance, the least I among us, and specifically those
against whom the war on drugs and overpolicing are aimed, suffer
under a caste system. They are required to watch from the cages
in which they have been placed as others, who have been incarcer-
ated for the same acts, are released.
During Clemency Project 2014, more than 36,000 applicants for
clemency appeared. Additionally, thousands of family members
called, emailed, sent postal mail, and personally appeared in our of-
fice in hopes that their loved ones would be lucky enough to be
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granted clemency. One mother called me every week to pray for the
release of those suffering under long sentences. I was contacted by
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38
judges, probation officers, defense lawyers, law professors, and
some prosecutors who sought to bring our attention to someone
languishing in prison with the hope for their release. The process
was saturated with desperation. Sadly, many of the petitions were
denied while many more remain unanswered, leaving thousands of
petitioners and interested parties wondering where is the justice?
Where is the fairness in the secretive deliberations on applications
for liberty?
How can we be assured of fairness and justice? The clemency
process must be completely independent of the system employed to
incarcerate the millions of people. An independent commission
should be established with representatives from all stages of the
criminal legal system, including those who were formerly incarcer-
ated, prosecutors, defense lawyers, corrections experts, and mem-
bers of the public.
Independence would ensure that one actor could not put a thumb
on the scales of justice, as is the case in our current system where
the very same officers in the Department of Justice who prosecuted
the case have the power. The commission should have the nec-
essary resources to review the inevitable deluge of petitions from
the masses. The commission would promulgate clear and equitable
criteria for release. Applicants would have notice of the evidence
necessary to successfully submit a petition. Newly incarcerated per-
sons would have an incentive to immediately work to achieve reha-
bilitation, and the general public would understand and believe
that the system is just and broadly available, and not reserved for
privileged few under a secret process.
Further, members of society would have faith that those who re-
turn have been rehabilitated and are prepared to safely reenter so-
ciety, and society would be prepared to welcome them.
Paramount among the criteria would be the consideration of any-
one affected by the failure to retroactively apply sentencing reform.
If we, the people, determine that we are no longer willing to incar-
cerate certain acts, then those who commit those acts and are in-
carcerated should go free in order for equal justice under the law
to have meaning.
Categorical clemency could be granted, for example, to those
serving sentences subject to enhancements that no longer apply.
Additionally, those serving long sentences suffering under a trial
penalty, for exercising their constitutional right to trial, and those
political prisoners for the shameful COINTELCO prosecutions.
Also, there is a mechanism for compassionate release, but it is un-
derutilized. Clemency could be used to clear this backlog.
It is my hope that you remove the scourge of mass incarceration
from our justice system—I would ask for just 2 more seconds. The
scourge that informs one in three black boys born today that they
can expect to be incarcerated, the scourge that prevents $80 billion
from being spent on their education, because it is being spent to
incarcerate them.
When historians look back on us, and what we did during our
watch, let them record that we were enlightened. May they extol
the virtual of our quest for equal justice for all, and may they mar-
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vel at the expediency with which it was achieved through an inde-
pendent, transparent, fair, and just process. I am personally grate-
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39
ful to you for taking an interest in the Nation’s most urgent issues,
for there is nothing more urgent than freedom. Thank you.
[The statement of Ms. Roseberry follows:]
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Mr. COHEN. Thank you, Ms. Roseberry.
We are joined by one of the most distinguished members of our
committee, Mr. Ben Cline, an outstanding Congressman and a good
family man, I presume.
I now recognize the next witness as Mr. Mark Osler. Mr. Osler
is a Professor and Robert and Marion Short Distinguished Chair in
Law at the University of St. Thomas School of Law, advocates for
sentencing in clemency policies rooted in the principle of human
dignity, a former Federal prosecutor that argued the case of Spear
versus United States before the Supreme Court, which held in that
case that judges could categorically reject the 100-to-1 mandatory
ratio in crack and powder cocaine sentences for Federal sentencing
guidelines. In 2015, he co-founded with our fellow witness, Rachel
Barkow, The Clemency Resource Center, a 1-year, pop-up law firm
that prepared clemency petitions. Thank you for that, sir. He re-
ceived his J. D. From Yale and his B. A. From William and Mary.
minutes. Professor Osler, you are recognized for 5 minutes
STATEMENT OF MARK OSLER
Mr. OSLER. Mr. Chairman, members of the committee, thank you
for this opportunity to be heard.
In the course of doing the work that you just mentioned, Mr.
Chairman, one of our clients was a man named Robert Shipp, and
you were kind enough to write a letter of support, twice, in fact,
on his behalf. One of the things you recognized in that letter was
the unfairness of Mr. Shipp’s story, that he was someone who
turned to dealing drugs after the murder of his brother. The mur-
derer of his brother served a 10-year sentence. Mr. Shipp was
doing life for the nonviolent narcotics crime. Unfortunately, he was
denied clemency. But we know these stories as all of us on this
panel have gotten to do. We care about the institution of clemency,
and I want to spend a little time talking about how that institution
is framed right now.
The process to evaluate and make recommendations on petitions
to the President, I think of it as a pipe. Water goes through the
pipe, and there is seven valves, and each one of those valves is
spring-loaded to be shut. And somebody has to turn each valve
open as the water goes through. And those seven valves are first,
it is the staff of the pardon attorney, second, it is the pardon attor-
ney, staff at the Deputy Attorney General, then the Deputy Attor-
ney General, then the staff at the White House Counsel, then the
White House Counsel, and then the President, and that is sequen-
tial.
It is a terrible system. No one in business would create a decision
mechanism like that. It grew up organically. It wasn’t intentional.
No one thought about it very hard. It seems just people wanted to
review the cases that were coming through and took that on.
What we saw was pretty telling under the Obama administra-
tion. There, the President was deeply committed to making clem-
ency work. And there were people, Ms. Roseberry to my right, who
played a huge role in that program and worked very hard, and
what happened, much of it was due to her efforts, and also to the
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efforts of advocates like Nkechi Taifa who is here today, who advo-
cated for clients, learned their stories.
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But in the end, even though Eric Holder, the Attorney General,
said we would get 10,000 people out, ended up with 1,700. 1,715.
Don’t get me wrong. It is a wonderful thing for those people, but
it is a tragedy about the people like Robert Shipp, who did not re-
ceive clemency.
And one thing, too, about that, that is telling about this process
is that when things started to flow through that pipe, when Presi-
dent Obama was able to get it to work at the end, the Inspector
General report on that project tells us that what they did was skip
the Deputy Attorney General. They bypassed that valve, basically,
for the noes which allowed the Deputy Attorney General to focus
on the yeses, and that was part of what made it work.
I would like to return briefly to Robert Shipp. As I said, he was
denied clemency under President Obama, and I was floored by that
decision. He was imprisoned at Sandstone Prison in Minnesota,
about an hour north of where I live and teach, and I felt compelled
to drive up and tell him in person, and talk to him about his de-
nial, and I did that. And I sat in the cell, the visiting attorney area.
And that was a hard day. And on the drive back, I determined that
we had to come up with a system that works, one that doesn’t have
that many valves that are spring-loaded shut.
Mr. Johnson, you quoted Micah 6:8. As a pastor, that is very
meaningful to me. When I taught at Baylor Law School, I walked
into the school every day under those words. And you know, the
thing about that, as I think about it, and I have for a long time,
is that justice and mercy are intention if ‘‘justice’’ means we treat
everyone the same, and ‘‘mercy’’ means that we give some people
a break, that part of our project is to resolve those two poles. And
I think the answer, in part, is the third part of that passage. It is
humility, that we have to humble ourselves to know those stories,
to care about them, to agree that mercy is good. We need the hu-
mility to see the change in others, to know the limits of our judg-
ments, and to see the human dignity in all people, including those
who are incarcerated. Thank you.
[The statement of Mr. Osler follows:]
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Mr. COHEN. Thank you, Professor. Our next witness is Rachel
Barkow, Vice Dean and Segal Family Professor of Regulatory Law
and Policy and Faculty Director, Center on the Administration of
Criminal Law at NYU. She has taught at NYU since 2002, where
she teaches courses in criminal law, common law, and administra-
tive law.
From June 2013 to 2019 of January, she served as a member of
the U.S. Sentencing Commission. Among her various areas of
scholarly focus the role of mercy and criminal in the criminal jus-
tice system. In 2015, she co-authored, together with Mr. Osler, Pro-
fessor Osler, a University of Chicago Law Review article arguing
for the independent clemency commission outside the Department
of Justice. She received her J.D. From Harvard, magna cum laude.
She served as editor of the Harvard Law Review, B.A. with honors
from Northwestern, served as law clerk for the Honorable Law-
rence Silverman of the U.S. Court of Appeals for the D.C. circuit,
and for the Honorable Anton Scalia, Associate Justice of the Su-
preme Court of the United States. Professor, you are recognized for
5 minutes.
STATEMENT OF RACHEL E. BARKOW
Ms. BARKOW. Thank you very much, Mr. Chairman, Ranking
Member Johnson, and members of the subcommittee, thank you for
inviting me today to testify. There were two problems with Federal
clemency today. The first, and, by far, the biggest concern, is that
it is not being used enough. The second is that of the few grants
that are being given, a large proportion have gone to presidential
supporters and those with connections to him. So, the good news
is that Congress has the power to address the more pressing con-
cern of inadequate numbers of clemency grants, and I urge you to
do so.
Clemency, as you have heard many of us talk about, is a critical
avenue for achieving justice and proportional sentencing in the
Federal system because Congress abolished parole in 1984, and
that was previously the major avenue for getting sentence reduc-
tions.
Pardons are also essential, because there is no other mechanism
at the Federal level for an individual to seek relief from the collat-
eral consequences of convictions. And now, unfortunately, it is dif-
ficult to get either commutations or pardons under the current ap-
plication process, because the Department of Justice, the same
agency that brought the prosecution in the first place, plays a
gatekeeping role and it is institutionally biased against clemency,
because it is reviewing its own prior decisions. So I don’t think you
need to look any further than the output of DOJ’S process to see
this bias at play.
According to DOJ’s own clemency statistics, there have been
more than 7,700 petitions filed since President Trump took office,
and only 24 grants. So that is a rate of 0.3 percent. And this is part
of a pattern of low grant rates in recent decades, because of DOJ
resistance to clemency.
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During the administrations of Bill Clinton and George W. Bush,
the Department received more than 14,000 petitions for
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commutations, but the Department only recommended that 13 of
them should be granted.
Now, President Obama had to create a designated initiative with
specific criteria to try to spark more positive recommendations
from the Department. And even with that effort, he fell short of his
goals precisely because it was administered by DOJ. Only 3.4 per-
cent of the people who met President Obama’s stated criteria re-
ceived clemency, and thousands were left behind.
And I do think the case of Alice Marie Johnson illustrates the
flaws with keeping DOJ as a gatekeeper. Johnson was a first-time
offender who got a life sentence for her role in a drug trafficking
conspiracy. She was a model prisoner, helped others, accepted full
responsibility for what she had done. And after serving almost two
decades, she asked President Obama for clemency. But she was re-
jected without her application ever reaching President Obama’s
desk. And that is because DOJ thought her petition should be de-
nied.
Now, she came to President Trump’s attention not because DOJ
had a change of heart, but because her case got the attention of
Kim Kardashian, who then made a personal plea to the President.
There are thousands of cases like Alice Marie Johnson out there,
but they are waiting in a line of 14,000 petitions, where the end
result is most likely going to be the Department of Justice recom-
mending no. So Congress can’t force the President to grant those
petitions through clemency, but you can create mechanisms of re-
lease that do a good job.
Congress can create second-look mechanisms such as parole or
an opportunity for resentencing by a judge, and that can serve the
same function as commutations. Congress can also help prevent ex-
cessive sentencing from occurring in the first place, by eliminating
mandatory minimums and giving judges more flexibility to have
the facts fit the actual case before him or her.
Additionally, Congress, when it recognizes that its sentencing
laws have gone too far, as it did with the First Step Act, can, and
I believe should, provide retroactive relief for the people who were
still serving sentences under the old laws that Congress has recog-
nized should be overturned. Congress can also address the low rate
of pardons by enacting legislation that allows individuals to ex-
punge Federal convictions and restore their rights. And, again, re-
duce the need for such relief in the first place by removing some
of those oppressive collateral consequences.
But, in addition to passing legislation along these lines that
could serve as a substitute for clemency, Congress can also improve
the operation of clemency itself, by providing the necessary re-
sources to enable the President to use the power more effectively.
Several recent Presidents of both parties have indicated frustra-
tion with clemency being run out of the Department of Justice, as
have some of the candidates who are currently running for Presi-
dent, and they want to switch to a model that relies on an advisory
board that exists outside of DOJ. And President Trump appears to
be transitioning to such a model as well. Congress can and should
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provide funding to support this change so that this board has the
resources it needs to do the job effectively.
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The one thing that Congress can’t do is tell the President how
to exercise the clemency power, which is why solving the second
problem of grants given to supporters, or cronies, isn’t subject to
a legislative fix. The main mechanism for checking a President who
does that, who gives grants and/or exercises the discretion in ways
that people might find disserving, is to elect a new President with
better judgment and better values.
So thank you, again, for allowing me to testify and share my
thoughts on clemency. And I would be happy to answer any ques-
tions that you have.
[The statement of Ms. Barkow follows:]
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Mr. COHEN. Thank you very much. We are now in the period
where we ask questions of 5 minutes of each. And I will start with
my 5-minute period.
And, first, I want you to reiterate, Professor Barkow, the sugges-
tions you had. Because the reality is, we can do oversight. And that
is part of what this hearing is about is oversight. But we can’t stop
or change the President’s pardon power, unless he tries to pardon
himself, and that would go to court. What were your suggestions
of legislation that could serve the same purposes?
Ms. BARKOW. Thank you for the opportunity to talk about them
further. So, I think on the—so commutations reduce sentences that
are excessive. That is the Presidential power. So you could create
other mechanisms that do the same thing, just not with the Presi-
dent.
So we used to have parole in our system, and that was the main
mechanism by which people got sentencing reductions. If you look
at the charts on when clemency starts to fall initially, it is when
we have the advent of parole. So bringing some form of parole
back, or a second look by a judge that allow you——
Mr. COHEN. When was parole eliminated?
Ms. BARKOW. 1984’s legislation eliminated it. So anyone sen-
tenced after November 1st, 1987, in the Federal system cannot get
parole.
Chairman NADLER. Excuse me, chairman, may I have moment?
Mr. COHEN. Yes.
Chairman NADLER. When you are referring to the parole elimi-
nation, you are referring to the institution of determinative sen-
tencing, right?
Ms. BARKOW. Correct. It was part of the Sentencing Reform Act
package of eliminating parole and creating a sentencing commis-
sion. And people testified before Congress at that time saying, now
that you have eliminated parole, it is going to put a lot of weight
on clemency. Because we need to have an avenue for
commutations. And that turned out to be particularly true because
there were so many new mandatory minimums that came into play
at the same time, and then continued to come.
So you have this, lots of disproportionate sentences that were
mandatory, that the judge had no power to do otherwise, and no
back-end mechanism to correct them. So reinstituting some form of
parole or a second look by a judge after a period of time could do
the same thing as a commutation. It would just be giving it to a
different actor in the system.
Mr. COHEN. Do you know if that was discussed as part of the
First Step Act?
Ms. BARKOW. I do know there is legislation that is being consid-
ered that others may know more about—the second look, which
would allow for more back-end review. And I also know that the
part of the First Step Act that allows people to earn credits as op-
posed to good-time credits, participate in programming and be eligi-
ble for some reductions, you know, that is one other way that was
supposed to expand the opportunity. And then also, removing the
requirement that DOJ had to file your petition for compassionate
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release. You know, that also opened up one other opportunity. But
that is for people who have terminal illnesses and the like. For
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your kind of core group of folks who have excessively long sen-
tences, I do think there needs to be more opportunities for them.
And I do think having a second look in the system would do it. And
it would take some of the pressure off the President.
Mr. COHEN. Are there limits to the Compassionate Release Act,
as far as number of years somebody would have had to have
served?
Ms. BARKOW. No, you can—a person can file their petition now
directly with a judge. You know, can ask obviously to go through
the Bureau of Prisons process, but does have the ability now to file
with a judge and explain why they merit compassionate release.
So, for example, if they have a terminal illness, if they are a
caregiver for a child, they are the only caregiver that is left that
could take care of a family member, because you know someone has
passed away and the like. I do know that people are filing petitions
for extraordinary sentencing relief under that provision, arguing
that they can do it in the case——
Mr. COHEN. Do you have any recommendations of changes in the
compassionate release to make it more effective?
Ms. BARKOW. I do think it should be explicitly made available to
people who are serving excessively long sentences and can dem-
onstrate good behavior while they have been incarcerated. I think
that is something that could be more explicitly made clear, because
right now, the folks who are trying to do that, you know, it will
remain a question whether judges will accept those petitions.
Mr. COHEN. How do you know that? Are you suggesting putting
out a public paper to the prisoners?
Ms. BARKOW. Well, I think that—so there could be legislative
changes that may clear who is eligible and who Congress has in
mind should be asking for sentencing relief. I do think—and I will
let some of the other advocates who work there more directly with
people who are currently incarcerated—I do think word gets
around about what opportunities are available in terms of opportu-
nities, but not everybody has access to counsel to help them and
the resources they need to——
Mr. COHEN. Ms. Roseberry, do you have any suggestions on
things we can do legislatively to improve people’s opportunities to
get their freedom?
Ms. ROSEBERRY. Yes, sir. Thank you for that question. I agree
that the Second Chance Act, passing the Second Chance Act will
be helpful to give folks a second look. We recommended that on the
Culson task force. Of course, getting rid of mandatory minimums
stops the process on the first end. Fully funding the First Step Act
so that people can avail themselves of that. I think as of July of
2019, only about 3,000 people have been able to be released
through that Act. There needs to be programming so that people
can come out.
I would just also add that if we are concerned about safety, that
we they about the fact that if prisons are overcrowded, then the
folks who work in corrections are unsafe as well. That is one of the
things that we found in the Culson task force. So there is a need
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for mercy for them as well to have folks come out.
Mr. COHEN. Thank you. I recognize Mr. Johnson for 5 minutes.
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Mr. JOHNSON. Thank you, Mr. Chairman. And thank you all for
your thoughtful comments and contributions. And there is a lot of
competing events going on in the Hill right now. You know how
this works. The record of this is very important. And your writings
are important.
What you said just a moment ago is exactly right. We hear from
those who work within the prisons about the underfunding crisis,
really, that they have. So they have jeopardized the safety of those
who are in charge in these facilities. Because that is a whole other
issue.
Professor Osler, I really appreciated your frank discussion and
our mutual reference to Micah 6:8, in how there is this tension be-
tween acting justly and love and mercy, and how it is resolved real-
ly with that third phrase of humility. And that is a lot to unpack,
and something we ought to consider.
But can you describe, just real quickly, why you think clemency
grants can be consistent with public safety? Because I think there
is a lot of misconception out there about that.
Mr. OSLER. Yes, thank you. Thank you for that question. And
yes, absolutely. One thing that clemency allows for is the capacity
for people to change. That someone who at 18, 19, 20, was commit-
ting a felony, even a violent felony, is going to be very different
later in their life. And clemency gives us the opportunity to hold
them accountable, to monitor that change, and to recognize it, and
to free them what they are ready to be a productive member of so-
ciety. And that is something that clemency is especially well-suited
for is considering those individual circumstances.
One thing that doesn’t work so well right now is that mostly we
reach back for advice to the people who are involved at the time
of the criminality—back to the prosecutor, back to the sentencing
judge. It is always appropriate to go back to the victim and include
them. Although in Federal crimes, very often, there is not a victim.
But I think we need, as well, to reach out to those who currently
know that person as they are incarcerated. Too often, we think of
people who are incarcerated as their life ended when the prison
door closed. But they do have a life going forward, as many of us
on that panel know very well. And the people who. know them in
the prison who work with them are able to give us a good view of
what they are now.
Mr. JOHNSON. So you are talking about people—the employees
within the prison. I mean those who are charged with guarding the
inmates, so to speak?
Mr. OSLER. It will be corrections officers; it will be wardens; but
it will also be people who provide educational opportunities, who do
ministry within the prison as well.
Mr. JOHNSON. So one of the concerns, of course, is about the risk
associated with early release. There is always exceptions: Someone
gets out who shouldn’t. Mistakes are made.
How do you—how can we reduce those risks?
Mr. OSLER. I think one thing that we can do to reduce those
risks is to do a better job of tracking the success of the
commutations that have already been granted. That is one problem
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with the system that we have, is that there is no one who is in
charge of data collection and analysis. That is something that Pro-
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fessor Barkow has done a lot of work on. That if we had a clemency
board, one that was able to perform these other functions, and also
be able to track recidivism by people who had received
commutations and be able to give us a better idea of who is suc-
cessful and who is not.
Mr. JOHNSON. We heard a lot this morning, several references to
Alice Marie Johnson’s case—and I am not an expert in the back-
ground of it. But can you summarize why it took so long for her
to receive clemency? Are there lessons to be learned there?
Mr. OSLER. There are certainly lessons to be learned, and one of
them is about transparency. That is the thing about Alice Marie
Johnson being denied those three times is that we don’t really
know why. That we don’t have a sense of that process. Which for
those of us that are lawyers, it is very frustrating. Where you used
to be able to have a back and forth, and that is not a part of this
process.
And so, I think one of the takeaways is that we don’t know, and
that is wrong. Because that way we don’t know how to advocate for
people going forward. We don’t know what to avoid, what kind of
cases are—shouldn’t be taken forward. The other thing is that al-
though we don’t know this, I think many people believe that there
was resistance from the DOJ in granting her petition. And, again,
that goes back to the problems that many of us have already talked
about in reference to clemency as it works today.
Mr. JOHNSON. And that would have been the DOJ under perhaps
several previous administrations, right?
Mr. OSLER. Yeah, that is correct. And this is something that,
again, Professor Barkow and I wrote an article about this, about
the role of the DOJ. And the one thing that is remarkable is it is
pretty consistent across administration’s resistance to reform and
correcting problems that we find from that department.
Mr. JOHNSON. Because no one wants to be perceived as soft on
crime, right?
Mr. OSLER. That is correct. And also the people who make the
decisions and work on policy—for example, the deputy attorney
general, in this circumstance, that is who the U.S. attorneys report
directly to. And they have to maintain a good relationship with
those people, and they avoid making decisions that would imperil
that relationship.
Mr. JOHNSON. Thank you. I yield back.
Mr. COHEN. Thank you, Mr. Johnson. Mr. Nadler.
Chairman NADLER. Thank you, Mr. Chairman. The witnesses
have referred to a number of things that we have dealt with in the
last few years, mistakes that were made by Congress back in 1986,
instituting determinative sentencing. The war on drugs was a ter-
rible mistake. I don’t know if you have referred to it, but the Crime
Bill of 1994, which is a terrible mistake, all of which led to mass
incarceration. We have tried—I should tell you, because someone
raised this—that we tried to get interactive application, new sen-
tencing guidelines into the First Step Act last year, or 2 years ago.
So these are issues that we have been dealing with.
My problem, and I—before all of this stuff, I was successful in
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getting someone a pardon the same day that you had, the last day
of the Clinton administration. A 22-year-old woman who had been
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71
sentenced to 68 years in jail and served, at that point, 19 or 20
years, and it was—it was a terrible miscarriage of justice. But it
would not have been solved if I, as a Congressman, did not happen
to hear about it. And I was able to work for 3 or 4 years and got
it done.
Now, undoubtedly, you know of Ms. Smith Pradia’s case, we
know about the Marie Johnson case, there are undoubtedly thou-
sands of cases we don’t know about. And, yes, the advisory com-
mittee that was set up to advise the President is probably preju-
diced because it has got the Department of Justice in it. We should
take the Department of Justice out of it and set it up more inde-
pendently. But how do you guarantee, how could we institutionally
improve the likelihood that a President, any President, President
Smith who gets elected next year, is going to exercise better judg-
ment, going to grant more pardons, more commutations? What can
we, as an institution, do to—aside from hope that the next Presi-
dent is a good guy and has good judgment and so forth, what can
we do as an institution to maximize the odds that the pardon
power would be used decently?
Mr. OSLER. I have a couple of thoughts on that, though, I will
put forward quickly. And one is that encouraging a process that
creates regularity of consideration is something where right now,
Presidents for the, you know, past two decades, three decades,
clemency comes up when it comes up. There is no regular meeting
with someone who is making those advisory decisions.
The second thing is that we don’t talk about it during elections.
That we don’t—the answer to clemency problems is politics. And
yet, we are in the middle of a Presidential election season, and dur-
ing the Democratic primaries, nobody talks about clemency. I think
Amy Klobuchar did once. Where does Joe Biden, for example, stand
on clemency? I don’t know. But we need to ask that question when
we can, when it matters.
Chairman NADLER. And the odds are he doesn’t know because he
probably hasn’t thought about it like anybody else.
Mr. OSLER. Right. And we need to make him think about it. And
you all have a platform to do that. And I hope that you will use
that political platform to press our political leaders, be they Demo-
cratic or Republican, to articulate, before they take office what it
is that they would do with clemency.
Ms. PRADIA. And I would like to add that with my particular sit-
uation, the Department of Justice did not want me to be released.
And the attorneys from LDF didn’t want me to even speak publicly,
because they knew that the Department of Justice was upset, I was
on probation for 5 years, they were worried about my probation of-
ficer violating me.
But I do want to highlight that I do believe the Department of
Justice needs to be eliminated from the process. And recently there
was a Virginia Supreme Court judge that told me, the government
should not be concerned with being right. Instead, it should be con-
cerned with making sure justice has been served.
And, you know, this was part of my statement. I thank God that
President Clinton didn’t adhere to the Department of Justice’s
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opinion that I needed to serve my full sentence. There was a Presi-
dent that felt as if justice had been served. There are many others
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72
like me who are waiting on their opportunity to live life that would
overshadow who they used to be if given the opportunity. Like
Alice Johnson and I, they would be an asset to our great Nation.
And I apologize for going over earlier as well. Thank you.
Chairman NADLER. I yield back.
Mr. COHEN. We are going to recognize Mr. Armstrong for 5 min-
utes. And then, I think, we should probably break for votes, and
then we will come—then we will come back.
Mr. ARMSTRONG. Could you do Mr. Reschenthaler first?
Mr. COHEN. I am just taking instructions from the Republicans,
whoever you all want to yield.
All right. Mr. Reschenthaler, you are on.
Mr. RESCHENTHALER. Thank you, Mr. Chairman. And I yield my
good friend from North Dakota.
Mr. ARMSTRONG. Thank you. One thing we can do—let’s be hon-
est. The biggest problem with clemency isn’t that it is an inefficient
system, because it has been an inefficient system regardless of who
the government is. The biggest problem with clemency is that we
have too many people that need it. This started a long time ago.
And you can go to Richard Nixon and the war on drugs. You can
go to the sentencing guidelines and the enhancement for crack co-
caine, which absolutely, disproportionately, affected African Ameri-
cans in cities. You can go to States like mine who end up in Fed-
eral court off of Native American reservations in an incredibly pe-
riod of time. So what do we do? We try to retroactively apply sen-
tencing guideline reform again. That is how you do it. Because you
diffuse it between 535 Members of Congress instead of one person
sitting in the executive branch. Because nobody has ever lost an
election being tough on crime.
And instead of having hearings where we are taking pot shots at
the ranking member of the committee and instead of taking pot
shots at the ranking member of the full committee, we should have
hearings like this every single day of the week. We should be talk-
ing about it. And the reason I know this is because I have done
it.
You didn’t have to worry about minimum mandatory sentences.
You blew so far past the minimum mandatory sentence because
you had a boyfriend who was dealing drugs. And I assuming some-
where, somewhere along the line in that conspiracy, somebody had
a gun, so they made it violent. Which comes back when you look
at this. One of the first things we can do—and I know U.S. attor-
neys are great people. I supported the last Democratic U.S. ap-
pointee in North Dakota, and I supported the last two Republican
ones. But I don’t think anybody ever intended prosecutors to be
able to determine sentences, and that is what happened, because
how they charge something, how we draconianly enhance drug
weights in historical methamphetamine or drug conspiracies with-
out ever having a drug in the courtroom, how we put those drugs
on a low-level member of that conspiracy, because they are using
minors amounts of drugs to feed their addiction, and we treat them
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just like the leader of a drug cartel, that is how we end up in this
situation.
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73
We did sentencing—Federal sentencing guideline reform. Have
we checked to see what States that have mirrored their sentencing
guidelines are starting to reform theirs as well?
Minnesota is a neighboring state. I used to practice law in Min-
nesota. If anybody thinks Minnesota is a liberal State, you get con-
victed of a crime there.
After the first step back, their state sentencing guidelines are
worse than the Federal ones. Do we know if they are—do they
know if they are taking it forward? And there are States that are
doing this. Texas has done criminal justice reform. North Dakota
has done criminal justice reform. How are we providing services?
Why aren’t we not utilizing—the one thing the Federal Govern-
ment does really, really well is a pretrial release program. It is ac-
tually one of the greatest ironies in anything. It is
nonconfrontational.
They get you into life choices. They get you into addiction treat-
ment. They do all of those things. Then you show up at court and
you get a 10-year minimum mandatory sentence. I don’t know how
good your pretrial release program is. If you are going to prison for
8.5 years, you are not really going to remember anything about it.
So instead of pointing fingers at the executive branch when we
are doing this, how do we solve it? This is hard, hard, hard work.
And the reason it is hard work is if you make 1,000 right decisions
and one wrong decision and that happens to be in your district, you
are going to penalized politically for it, every one of us. We run
every 2 years.
So, you have to stand up and be counted, and you have to do it.
And you have to do it in a way that actually effectuates change.
Are there ways to do it. One, you go back and you concentrate on
nonviolent crimes. But you define nonviolent crimes not in how
they were prosecuted in 1998, you look at them. If there was a gun
associated in a drug conspiracy, but it was associated 17 levels, 17
levels removed from that particular sentence, that is not a violent
crime. It is simply not.
And so, instead of sitting here and blaming people and doing
those—and I am supporting clemency. I am on the letters for clem-
ency. I will advocate for people all the time. But let’s recognize the
fundamental problem. The fundamental problem is we started
down this path 48 to 50 years ago, and have allowed it to snowball
ever since.
And let’s also recognize that regardless of how anybody feels
about anybody, the single biggest piece of criminal justice reform
that has ever come out of Washington, D.C. was the First Step Act.
But that is only the first step. And then we should also recognize
the fact that the vast 95 percent of this happens at the local and
state level. County jails are full of people serving pretrial.
So let’s utilize technology. Let’s invest in those things. Let’s do
GPS tracking. Let’s do SCRAM bracelets. Let’s work at those
things. Because the vast majority of people, whoever get sentenced
in the Federal court system, it ain’t their first trip to the rodeo.
They have been in misdemeanor cases. They have been in county
jail. They have been in State jail. They have been through all of
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these things. So let’s utilize the resources to attack this before they
get it.
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Then, finally, we need to start addressing the fact that we are
felonizing nonviolent drug offenders from the age of 18 to 22. Be-
cause you talk about collateral consequences, but here is what I
can tell you: If you have one felony, the chances of you having an-
other one go up exponentially, because we have created perverse
incentives for every government program we have to avoid felons
like the plague. So if we want to deal with this, we can deal with
it. But I don’t think throwing political pot shots at each other is
the right way. And with that, I yield back.
Mr. COHEN. Thank you. With the exception of the suggestions of
political pot shots, Mr. Armstrong did a splendid job. We will now
recess until after the votes.
[Recess.]
Mr. COHEN. We are back, and Mr. Raskin will be first to ask
questions. It is 5 minutes, and he is recognized.
Mr. RASKIN. Thank you very much, Mr. Chairman. Let’s see, I
see Ms. Smith is not with us. Is she coming back?
Mr. COHEN. No, she has left the building.
Mr. RASKIN. Oh, okay. All right. So Ms. Roseberry, let me start
with you. Thank you very much for your excellent testimony.
Do we need some kind of structural change in the way that par-
dons are being issued? And let me ask you this specifically, is there
a problem in the pardon attorney’s office, or is it just that the
President is disregarding the pardon attorney’s office?
Ms. ROSEBERRY. Sir, you are asking—thank you for your ques-
tion. You are, of course, asking a lifelong criminal defense lawyer.
There is a problem in the pardon attorney’s office. The culture
there, of course, is one of prosecution. And so, when you have a sys-
tem that looks back to the same system that created the problem
to solve the problem without interjecting anything independent,
you have the same problem.
Mr. RASKIN. So the President is the one under Article II is given
the power to render pardons. And so, certainly in this administra-
tion, probably in any administration, they are going to view it as
an executive function. Do you think that we should set up an advi-
sory congressional panel on pardons that is bipartisan in nature
that operates like the Joint Economic Committee or the House Eth-
ics Committee?
Ms. ROSEBERRY. Absolutely. You have that oversight power. And
to be guided by independent and transparent objectives would be
much better than having it lie in the agency that did it. And in
Maryland, when Governor Ehrlich pardoned so many people be-
tween 2003 and 2009——
Mr. RASKIN. Yeah.
Ms. ROSEBERRY [continuing]. It was a seamless process that
pulled on many experts in the field. And that is what I would sug-
gest for our Federal system.
Mr. RASKIN. Professor Barkow, let me ask you: Do you agree it
would make sense for us to set up some kind of independent advi-
sory congressional commission that would look at big cases and
bring them to the attention of the President?
Ms. BARKOW. I don’t think that is actually the solution that this
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problem needs. I think that creating a review by another political
body, I think, is going to face some of those same political pres-
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75
sures about being risk averse to recommending grants for cases. It
think it would be hard for a body set up in Congress to do that.
There is actually some—there is a need to have people who really
understand our prison systems, who really understand program-
ming in prisons, people who have themselves been incarcerated,
people like that on an advisory body, I think, can do a lot more
helpful and productive good. So I think it would be—a better alter-
native, in my view, would be for Congress to fund an advisory
board that is bipartisan, but is not made up of congressional rep-
resentatives, but it is actually made up of people in the field that
really would understand what they are reviewing when they review
commutations and pardons. So people who understand the difficul-
ties with reentry, people who would understand sentencing.
And, so, I think it would be a question of Congress providing
funding for something like that. But I do think it has to be coopera-
tive with the President. Because the President doesn’t need to take
advice from any outside body. And to keep it constitutional, I do
think it would have to be something that the President wants to
do that Congress funds.
Just as an example of that, I would say when President Obama
wanted to use the office of the pardon attorney for his initiative
and wanted kind of additional funding for his process, my under-
standing is that funding was denied by Congress, and it was one
of the setbacks in getting more grants. And so I think more produc-
tive type thing for Congress to do is to make sure that the Presi-
dent has funding when, you know, he or she wants to really up the
ante.
Mr. RASKIN. Professor Osler, do you agree with that, and do you
think that this is something we should do before the end of this
Congress?
Mr. OSLER. I agree with Professor Barkow. I think that it is for
the executive to form, that an advisory body, that certainly, there
would be input from Congress informing that in terms of the dia-
logue that you have regularly on a number of executive decisions.
The way that we are going to fix this process is going to be collabo-
rative, and it is going to have to be.
Now, that said, one thing that Professor Barkow mentioned that
I think is really important is about the funding, that one of the
reasons we didn’t get an administrative body under the Obama ad-
ministration is because they didn’t believe they could get the fund-
ing for that, much less fund the pardon of office appropriately.
Mr. RASKIN. And do you think there is anything that can be done
with this President? I mean, he is definitely drawn to luminaries
and celebrities in cases like that. I almost thought we should have
a TV show called, You Are Pardoned, where people can get up and
make their case. Is there some way to enlarge his pool of applicants
that are coming to him to get beyond just Kim Kardashian? Or
should she be the pardon attorney?
Mr. OSLER. Well, I would say that I think there is encouraging
signs that the President is moving in that direction to broadening
the pool. And we have to encourage that. I think that, again, this
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is something where the control on the pardon is politics. And in
terms of being critical of particular pardons, that is something that
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is going to happen, and it should happen going both ways. Having
that dialogue—and that kind of a TV show, I would watch it.
Mr. RASKIN. All right. I would yield back, Mr. Chairman. Thank
you.
Mr. COHEN. Ms. Scanlon.
Ms. SCANLON. Thank you very much. First, I would like to ask
unanimous consent to introduce the U.S. Department of Justice
statistics on clemency and pardons, going all the way back to Wil-
liam McKinley. So we have a factual basis to talk about how many
petitions have been submitted, and how they have been dealt with.
Thank you. So in looking at those, I noted that under the Obama
administration, over 36,000 clemency and pardon petitions were
submitted, which is more than four times any prior administration.
And, in fact, more pardons—more clemency petitions were granted
than under prior administrations. And I am familiar with that be-
cause I have worked with that project, the Clemency 2014 Project,
in my last job.
As I understand it, that program was started largely in the face
of congressional inaction to address mass incarceration, and the in-
humane and expensive results of the mandatory sentencing laws
that this body passed. So Clemency 2014 invited clemency petitions
from Federal prisoners who had served substantial sentences for
low-level nonviolent crimes. And my former law firm worked with
Ms. Roseberry and, indeed, I think just about everyone at this
table, to recruit and train volunteer attorneys to screen applicants
for clemency, and then represent them for free. Because there were
no resources available to screen these applicants or to represent
them.
So, I came away with a few takes on this whole process. The first
was the toll of excessive sentencing. The human toll of excessive
sentencing. We heard from Ms. Smith before, I think, about the im-
pact on her life. I would also suggest that people look at the docu-
mentary movie, The Sentence, which tells the story of one of my
firm’s clients and what happened to her and her family as a result
of really unnecessary sentencing.
The second thing I came away with was the need for resources
to assist the people who are in jail. Because, in addition to the 29
people for whom we were able to receive Presidential clemency, we
also found a number of clients who were entitled to relief, but had
been unable to get it because they lacked legal representation. So,
you know, the ongoing issue of making sure that people have ac-
tual access to justice.
And then the third piece is, okay, where are we now? What can
we do to try to get out of the situation? Obviously not imposing a
lot of new mandatory sentences that, you know, don’t really move
the ball forward in terms of criminal justice reform.
I was interested in hearing a little bit more about the Second
Look Act, and if you can tell me kind of how that would work? I
am not sure who is most familiar.
Ms. BARKOW. I am happy to start, and then Cynthia can jump
in. There is proposed legislation that would allow people, after a
certain length of time, to go back in for a resentencing. And I can’t
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recall if it is 10 or 15 years. But the idea is you would have a sec-
ond chance to go back before a judge for a resentencing at that
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point. And certainly, there are other models that are like that, that
the American Law Institute had suggested that jurisdictions have
that kind of lookback after a certain period of time that would
allow judges to do it.
And I will just say that you are absolutely right in terms of clem-
ency was trying to fill a need that was actually just an inadequacy
in other spaces. And First Step Act retroactivity, for example, real-
ly helped to address some of those petitions, allowing there to be
retroactivity for people with the crack powder reduction. But it
really should just be the general rule that when Congress makes
any legislative changes to sentences that are lower, it should auto-
matically be eligible for retroactive relief. I would really encourage
that as a mechanism to deal with this backlog. That would prob-
ably be one of the best things that you could do. All it would mean,
it would give people an opportunity to petition for that retroactive
relief.
And judges do a very good job at that. I will just tell you, if you
are worried about public safety, the sentencing commission has the
authority to make its guidelines retroactive, and had done so in
2007 for crack reductions, and was able to follow the people that
got the reductions 5 years later. And the people that got the early
release did not recidivate any higher than the people served their
full sentence.
And so, I think you can be quite confident that retroactive ad-
justments will be exercised wisely. And it is really one of the best
things I think that you could do to deal with the backlog.
Mr. OSLER. I agree. I support Second Look. One thing to be con-
scious of, though, is that that can’t represent place clemency, and
it can’t supplant it. And one of the reasons that we have seen this
with First Step is that if there is a judge out there who gives a
harsh sentence, rescinding that same case back to the same judge
and saying, now review it, and that then—and of course there are
more likely to deny the second look. Whereas the judge that is easi-
er on the sentence is also easier on the second look. And that en-
hances disparities. We have to be very careful about that. And that
is one reason that we are always going to need clemency as a
backup to these things because those disparities are going to per-
sist.
Ms. ROSEBERRY. And I would like to add we are soon to schedule
a briefing on the second look that would be able to members who
would like to learn more about it as well.
Ms. SCANLON. Thank you. And I see my time has expired. Thank
you all.
Mr. COHEN. Thank you. You are recognized for 5 minutes.
Ms. DEAN. I am Madeleine Dean from Pennsylvania, and I, in
anticipating this hearing, I was thinking over and over in my head
of words that I used to teach. I was a professor at La Salle Univer-
sity for 10 years, a professor of writing. And we would look at the
question of justice and mercy. And one of my favorite all-time
speeches on the question of mercy, of course, is the woman attor-
ney, Portia, from the Merchant of Venice.
And so while we got the Bible in here, I wanted to make sure
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we got a little Shakespeare in here to frame this picture. Because
we are talking not just justice, but mercy, and as some of you said,
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grace. As Portia argued, the quality of mercy is not strained. It
droppeth as the gentle rain upon the place beneath. It is twice
blest. It blesseth him that gives and him that takes. It is mightiest
in the mightiest. It becomes the throne a monarch better than his
crown. And earthly power doth then show likest God’s when mercy
seasons justice.
I love that thought—when mercy seasons justice. I am not so in-
terested in the monarch or throned crown, but it is a warning to
us all. That when we remember to look beyond just justice, to look
to that next higher level, and season whatever we do.
And so, as I approached this hearing, I thought of that. And I
thought of women I visited Muncy Prison in Pennsylvania, an all-
women’s prison. Many women that I met with are lifers.
And so, the issue of pardon of clemency is on my mind. And you
have given us many suggestions. Obviously, within the constitu-
tional pardon power, it is so broad. We don’t know or how we can
influence directly this President or any others in the future. How
can I make a difference for folks who are sitting in State prisons,
like the women at Muncy, in terms of pushing toward greater clem-
ency?
Ms. ROSEBERRY. Thank you for that question. And I have seen
the lady lifers. I know they sing. I wept when I saw them sing. I
think what you did is the first thing that we must do, and that is
to get proximate to the people who are suffering under these sen-
tences. As long as we can continue to quote numbers around them
and about them, we don’t know who they are.
Kemba made a lasting impression on us all. So once we get prox-
imate to them, we can lift their stories and their voices up to sup-
port categorical approaches like the lady lifers. I know one was re-
cently pardoned in Pennsylvania. That is a category of people who
don’t need to be in prison. And we can go back to our States and
say we want to look at our system to save money to give grace.
I, often, when I tried a case, would say to a judge, it is really
easy to give mercy to someone you like. The more difficult way to
do it is someone who has done something you don’t like, or with
which you don’t agree. The statistics show that people who commit
violent acts have a lower probability of recidivism.
So I would also like to include not just the people we like and
who make us weep from sympathy, but those who have been reha-
bilitated because of a severely long sentence.
Mr. OSLER. And Ms. Dean, if I could, the quote from Shakespeare
isn’t irrelevant. It is striking that the Framers of the Constitution
lived at a time that Shakespeare was revered. During the Constitu-
tional Convention, George Washington went to see The Tempest,
which has similar themes. Jefferson saw the Merchant of Venice
twice. Jefferson and Adams, together, as rivals went to Stratford-
Upon-Avon. So this is part of what influenced them, directly, as
they chose to put the pardon power in the Constitution.
Ms. DEAN. Thank you for telling me that. Thank you. My next
thought is, and you have given us some indication of it.
And I was thinking, Professor Barkow, in your written testi-
mony, you highlighted the differences, sort of general differences
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that struck me from H. W. Bush administration, and to the Obama
administration, and petitions that were granted at least in the sin-
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79
gle digits. Yet, from the Nixon to Carter administrations, the grant
was in the double digits, varying from 36 to 21 percent. In fact, you
wrote that the grant rate between 1892 and 1930 was 27 percent.
So for those who think pardon is so rare, and it happens only
when you get a Kim Kardashian, or you get on Fox News, and that
is just the way the system works historically, it wasn’t that way.
Can you identify some of the differences and how we could go back
to higher pardon rates?
Ms. BARKOW. Yeah, I think we should think of it as a normal
part of our operation of justice, because mistakes were a system
that fails. And we need to also recognize that people change over
time, and circumstances change over time. And clemency is there
to correct for those failings, and also recognize the change in peo-
ple. And we used to do that, and we used to do it regularly. And
I think the switch was really the kind of Willie Horton-style poli-
tics that scared politicians away from using the courage to show
people mercy.
And I do think another part of that problem was giving more au-
thority to within the Department of Justice, the Office of the Dep-
uty Attorney General, really kind of taking over the clemency proc-
ess and being more inclined to say no.
So I think we can make an institutional change, but a big part
of it is also just rethinking the politics surrounding these issues,
and to vocally support giving people clemency. I think it is some-
what of the things you do for the people who are incarcerated with
life sentences. The more politicians who speak out on these issues,
I think the better.
Ms. DEAN. Thank you, Mr. Chairman, I yield back.
Mr. COHEN. Thank you, Ms. Dean.
Mr. Armstrong, I presume you are here to engage in some discus-
sion.
Mr. ARMSTRONG. I am, Mr. Chairman. Thank you.
Mr. COHEN. You are recognized for 5 minutes of cogent and inter-
esting and pithy analysis.
Mr. ARMSTRONG. Perfect. I think we have people at the table that
understand a lot of this stuff really well. So I will end my rant and
come back to asking some questions. And I think the first one I
would start with is when we talk about dealing with clemency and
things we can do—I think too often we make binary choices. We
talked earlier about retroactive application of those types of things.
But are there ways where if we pass something like sentencing
guideline reform, that we can work that into a presumption of ex-
isting cases? Because they are moving forward and looking back.
And if we get into an all-or-nothing situation, we always run into
a situation where we may get nothing.
Just to get some structure, as an example, anybody who had a
nonviolent drug crime with a sentencing guideline above X and we
change that law, I mean, in order to put it into the system with
a presumption towards it? Does that make sense?
Ms. BARKOW. I think if you are asking, if I am understanding
correctly, Congress has given directives to the sentencing commis-
sion in the past. But almost every directive Congress has ever
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given the sentencing commission is to increase sentences. But you
have the power to give directives to lower sentences. So if the ques-
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80
tion is, could, should it be appropriate to give directives to lower
sentences, I would say absolutely. And I think that, and also fixing
mandatory minimums. Because you see both of those as kind of in-
puts that creates these problems are the mandatory minimums.
And then, you could have excessive guideline cases.
Mr. ARMSTRONG. Well, I appreciate that, because I think one of
the things you see on minimum mandatory sentences is where they
fall under the guidelines. One of the things the First Step Act did
that, I think, is hopefully going to show a lot of long-term results,
is how we allowed for the safety valve. And, I mean, getting a
Class B misdemeanor deferred imposition of sentence when you
were 18 years old for having a joint used to be where you wouldn’t
qualify for the safety valve anymore and how we are dealing with
those issues.
I mean—and then so I am going to just switch a little bit. When
we are dealing with this moving forward, and not so much in the
clemency area, what are some things we can do to work towards
either, A—because it is usually the minor people in these cases.
And there are just so many perverse incentives for somebody with
a decent case to not go to trial—whether it is a 5Kl substantial co-
operation or qualifying for a safety valve. Are there ways we can
appropriate those things so they can actually be utilized, and also
work towards people’s ability to go to trial?
Mr. OSLER. I am sure Professor Barkow will have comments on
that. But just briefly, I would say that a couple things to look at
relating to that would be the conspiracy law, and the way that con-
spiracy built on top of the way we used the weight of narcotics is
the proxy for culpability. It leads to the problems with a lot of the
cases that I as a Federal prosecutor and you as a Federal pros-
ecutor saw.
Mr. ARMSTRONG. Well, I was a defense attorney. I was on the
side of righteousness and goodness.
Mr. OSLER. But you saw the same thing, though.
Mr. ARMSTRONG. We did.
Mr. OSLER. But that is one thing. Also, you know, insofar as
there are other laws that we have in the Federal system, the boot-
strap accomplished liability into sentencing. We need to review
those, and that is something that would really use the attention of
this body.
Mr. ARMSTRONG. And before I—go ahead, ma’am.
Ms. ROSEBERRY. I would also add, looking at the trial penalty
that is often put on a person who exercises their constitutional
right to a trial and doesn’t accept the plea agreement, we need
more transparency around plea agreements, and how and whether
they are offered and to whom so that we will know how people are
choosing and/or being coerced into taking pleas.
Mr. ARMSTRONG. I have seen that just on the ground. It is not
that necessarily sometimes don’t want to take responsibility for
their actions. They just don’t think their actions quite correlate
with 375 pounds of methamphetamine, because of what you were
talking about, about the total weight of the process.
So, again, that is not always binary. Yes. Am I guilty of some-
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thing? No. Should I be going to prison for 37 years? I mean, so hav-
ing the ability to do some of that post sentencing, which would
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81
back to my point of, you know, we—we have done an okay job of
making guidelines discretionary instead of mandatory. But I still
stand by the—if we are appointing Federal judges for life, we need
to give them a little more control over their courtrooms. And that
could work into a clemency scenario as well.
Ms. BARKOW. Could I just add that if you wanted to address the
plea-bargaining issue, one of the directives, for example, you could
have is that you would allow defendants to challenge relevant con-
duct and it would not count against acceptance of responsibility. It
is a kind of precise way to deal with the problem that you are talk-
ing about. Because right now, the Department frequently tells peo-
ple that you cannot get acceptance of responsibility if you are going
to challenge relevant conduct on appeal. That makes a big dif-
ference, and it creates all kinds of issues with whether or not peo-
ple can challenge things later.
So do I think that—I mean, that is the kind of more microman-
aging things that happen over at the commission. But Congress
has done that a lot over the years, but always in the direction of
severity. And so I do think it wouldn’t be inappropriate to do it in
the other direction, and also to emphasize you want more role ad-
justments.
Mr. ARMSTRONG. Thank you. And thank you all for being here.
Mr. COHEN. Thank you, Mr. Armstrong.
Mr. COHEN. Does anybody have anything else in the short and
cogent, pithy manner they would like to voice.
Ms. ROSEBERRY. I do, your Honor.
Mr. COHEN. Go ahead.
Ms. ROSEBERRY. Mr. Chair, I think looking at these issues in a
vacuum is what has kept us in a system of mass incarceration. I
think we have to look beyond the scope of nearly our criminal legal
system to policing, and how communities, or particularly commu-
nities of colors and poor communities are policed, so that there is
more interaction with the criminal legal system, and there is more
difficulty getting out of the criminal legal system.
And I also lift up the idea of reentry. I know that we are not here
for reentry, but clemency affects that. When people come home,
they need to be able to fully integrate, not just having a job, but
understanding the technology that works or has come into exist-
ence since they have been away, understanding how the world
works.
Yesterday, I had a briefing with the Justice Round Table where
I saw that Washington State is working to reintegrate parents with
children earlier. You heard about Mr. Underwood who is prison
here, who has been away from his children forever. We need to
think about families, and reintegrating those families with each
other as we bring people home as well. And that means preparing
people while they are in prison, for a short period of time, pre-
paring them to come home so that the community can be assured
that they are coming home rehabilitated and that the environment
is safe.
Mr. COHEN. Thank you, Ms. Roseberry. We have a Subcommittee
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on Crime, and the chairwoman, Karen Bass, had a hearing on that
subject. It might have been this week, but it was recently. If not
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this week, it was last week, and we went into several of those
issues, but that is important, reentry.
Professor.
Mr. OSLER. Yes. I would just like to follow up on something Mr.
Armstrong said about—you mentioned the 100-to-1 ratio between
crack and powder and the influence that had. That is what pulled
me into this whole thing. I was a Federal prosecutor in Detroit in
the 1990s. I prosecuted those cases. I sought those sentences, and
I received them, but I stopped believing in it. And it was coming
to the other side, and eventually, we did win in the Supreme Court,
and we did win at least in the Fair Sentencing Act through the
work of Ms. Taifa and others, you know, changed prospectively.
But clemency was what allowed us to look retrospectively.
Now, that brings me to my final point, which is, too often, we
talk about criminal justice reforms as this or this. It needs to be
this and this. And so, when we talk about other reforms, and I
think Professor Barkow did a great job of outlining some of those
other reforms that are necessary. That is not at the exclusion of
fixing clemency. It has to be fixing clemency and creating those re-
forms to prevent the tragedies that you described. Thank you.
Ms. BARKOW. Just quickly, I would just say that mercy and re-
ducing sentences aren’t inconsistent with safety. This is a really
good opportunity. You can do both. And actually, lowering sen-
tences can help improve safety. It makes reentry easier for people
when they serve shorter sentences. Longer sentences are not—I
think people make an assumption that we want to keep sentences
as long as possible, and we don’t want retroactive relief because
that is good for safety, but we have mounds of data that shows that
is not true.
Mr. COHEN. Let me ask a question of the panel. You all have
mentioned 1,700 people who were commuted, had sentence
commutations under President Obama. Were there maybe 7- or 800
pardons as well?
Ms. BARKOW. No. The pardon process—there were almost no par-
dons because all the effort was brought into commutations.
Mr. OSLER. It was in the 200s, I believe, the number of pardons.
And this is described in the Inspector General’s report as well, that
as they were working on the commutations, they intentionally set
aside pardons and said to the pardon office, don’t worry about par-
dons. Just focus on commutations. Eventually towards the end of
the process, they changed their mind. They dedicated one person
to the pardon office to work on just pardons, and that’s how we got
that relatively small number.
Mr. COHEN. And it is referred to as the 2014 plan. When did they
start issuing clemencies?
Mr. OSLER. I believe that the first eight came——
Ms. ROSEBERRY. In 2015.
Mr. OSLER. 2015.
Ms. ROSEBERRY. It was calendar year 2015.
Mr. COHEN. Was it light in 2015.
Ms. ROSEBERRY. It was. Yes, it was. It took a while to get up and
get going. We had to receive data from the Bureau of Prisons in
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order to identify people. And I should also say that the 36,000 were
people who came to the project looking for a petition to be filed. Ul-
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timately, under the discrete criteria that were announced, many of
them were not passed on through petition because it was found
that they appeared not to qualify.
Mr. COHEN. Thank you. Thank you.
Kelly. Do you have anything else, Representative Armstrong?
Mr. ARMSTRONG. I don’t. I just want to say, again, thank you all
for being here.
Mr. COHEN. Nobody else. No.
All right. That concludes today’s hearing. I want to thank all of
our witnesses and Ms. Smith Pradia, who had to catch a plane to
get to Carolina to speak. I thank everybody for appearing. Without
objection, all members have 5 legislative days to submit additional
written questions for the witnesses and additional materials for the
record.
This hearing is adjourned.
[Whereupon, at 12:07 p.m., the subcommittee was adjourned.]
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APPENDIX
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