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Trump will continue to abuse the pardon power on his way out, as he's done all along. A president's clemency grants tells you a lot about a president and his character. Trump's grants speak volumes, and I believe it was one reason he lost this election. /1
But it is important to keep the focus on where the problem lies: with the person exercising the pardon power, not the power itself. /2
Clemency is critical in the federal system because there is no parole or other mechanism in place to clear a person's record so they have a clean slate. Commutations fix excessive sentences and pardons relieve people from harsh collateral consequences of convictions. /3
While most of Trump's grants are repugnant, the bigger tragedy in Trump's clemency record is the fact he ignored thousands of people who merit relief. /4
As President-elect Biden looks ahead, I hope he will realize that top priority in fixing clemency isn't a commitment to being corrupt. (I think he has that more than covered.) It's fixing a process that's been broken for far too long. /5
The Dept of Justice is in charge of clemency. That's the same agency that brought all these cases in the first place. It's not well positioned to give those cases an objective second look, so it's no surprise they are a factory for saying no to petitions. /6
The process needs to be moved out of DOJ and given to a board of advisors who can give the president objective advice on which cases merit a grant. This is an easy solution to a problem that's plagued recent presidents. /7
It's something President-elect Biden can do without Congress, and it will show his commitment to criminal justice reform and righting some of his own wrongs because many people in federal prison are serving sentences under drug laws he championed. /8
This is where the focus should be: on people who deserve clemency, not people who don't. But too often we set American criminal justice policy based on something that makes us angry. On this Thanksgiving eve, I hope we focus on a reform that gets to those most in need. /9
. @Oslerguy and I have been writing about this for years. If you want short versions, you can look here: https://www.washingtonpost.com/opinions/trump-abused-the-clemency-power-will-biden-reform-it/2020/11/16/6c9a58c2-2832-11eb-8fa2-06e7cbb145c0_story.html and here: https://www.theatlantic.com/ideas/archive/2019/01/the-first-step-act-isnt-enoughwe-need-clemency-reform/580300/ /10
Longer versions are here: https://lawreview.uchicago.edu/publication/restructuring-clemency-cost-ignoring-clemency-and-plan-renewal and here: https://scholarship.law.wm.edu/wmlr/vol59/iss2/2/ /11
And if you want the constitutional/institutional case for all this, I wrote about it here: https://www.nyulawreview.org/issues/volume-90-number-3/clemency-and-presidential-administration-of-criminal-law/ /12
It's hard to see something so urgently needed corrupted (literally) by a president with no character. But please direct your ire to that president and not the clemency power itself. It's more urgent now than ever. /end
