Once upon a time, there was only one way to have the president consider your petition for a pardon (which mitigates the effects of a conviction) or a commutation (which shortens a sentence) — and it was terrible.
That process required that a petition go through seven levels of sequential review, mostly within the Department of Justice. It was so inefficient and biased towards rejection that even President Obama, who seemed to have genuine concern for those in prison, granted just one commutation in his first five years in office.
Eventually, Obama got fed up and forced through over 1,700 commutations by cranking the broken machine harder and attempting to marshal an army of volunteer lawyers to advocate for petitioners. Unfortunately, though, he did not repair or replace that machine itself, and left to his successor a process which remains in the clutches of the very body of prosecutors who sought over-long sentences in the first place.
That successor, of course, was Donald Trump. Within his first year in office he had set a template for action by pardoning Joseph Arpaio, the former sheriff in Maricopa County, Ariz. This was the beginning of a second track for clemency within the Trump administration, one which favored right-wing heroes whose cases had been trumpeted by Fox News and Trump advisors like Alan Dershowitz and Rudy Giuliani. That second track developed even as the official path, or first track, continued to flounder and nearly 14,000 petitions piled up in the broken system.
Most recently, that second track produced clemency for eight people on Feb. 18, including financier Michael Milken, former New York police commissioner Bernard Kerik, former Illinois governor Rod Blagojevich, and former San Francisco 49ers owner Eddie DeBarolo, Jr.
In a remarkable press release, the Trump administration actually listed the celebrity insiders who endorsed each grant, a group that included football stars Joe Montana, Jerry Rice and Steve Young (for Mr. DeBartolo) and Fox News commentator Geraldo Rivera and musician Charlie Daniels (for Mr. Kerik). For the normally opaque field of federal clemency, that press release displayed remarkable transparency. We may be unsettled by this method of discernment, but it is consistent with the character and history of the man we elected president.
Hidden beneath those high-profile grants of mercy, though, was the emergence of a third track to clemency — one which should give hope to those of us who would like the pardon power to address the chronic over-sentencing of poor and working-class people who don’t have access to the media or celebrities.
Crystal Munoz, Tynice Hall, and Judith Negron — women who have little in common with the likes of Michael Milken — were all granted commutations from long prison terms. According to an investigative report by the Washington Post, Trump has assembled a small group of advisors who are feeding him the cases of people like Munoz, Hall, and Negron, who were not Fox News darlings. This could be the start of something very good.
NYU Professor Rachel Barkow and I have long advocated that the clemency process be taken out of the Department of Justice and put in the hands of a bipartisan commission that would make recommendations directly to the president. The informal group gathered by Trump has some of the characteristics of what we have suggested, and the potential to grow into something of historic significance.
First, the group seems to have some semblance of bipartisanship. Democrat Van Jones, who worked in the Obama administration (and resigned after calling Republicans “assholes”), is a part of the working group, as are Republicans Pam Bondi (the former attorney general of Florida) and Matthew Whitaker (the former acting attorney general prior to the appointment of William Barr). A key member and driving force is reported to be Alice Johnson, who received a commutation of her own sentence from President Trump.
Second, and perhaps more importantly, the clemency working group seems to be working outside of the oppressive influence of the Department of Justice. This is crucial, given that the DOJ has a constant and strong bias when asked to review their own cases — the very sentences they sought in the first place.
The problem with this working group, though, is that it leaves in limbo the nearly 14,000 people who followed the rules and submitted their petitions to the Pardon Attorney through the official first-track system. These petitions sit in purgatory, ignored, even though many are for people similar to Munoz, Hall, and Negron.
The solution should be to enlarge the clemency working group and give it the resources it needs to address that backlog systemically. Trump should sign an executive order that takes the Acting Pardon Attorney and her staff out of the Department of Justice and brings them into the White House, to report directly to the clemency working group. Meanwhile, that working group should be given official status by executive order, and allowed to continue the good work they began on Feb. 18.
President Trump did not invent discord over clemency. But, somehow, he has created what can be a path to a better way. That path should be followed.
Mark Osler is the Robert and Marion Short Professor of Law at the University of St. Thomas, Minneapolis.