This is terrible weighing of the costs and benefits of the pardon power. I think Senator Murphy woefully undervalues its utility. /1
In part because the Congress of which he is a part has established no functioning second-look mechanisms for shortening sentences or expunging convictions, commutations and pardons are the only mechanisms for correcting injustices in the federal system. /2
And it's not as if those injustices are rare. Go to any federal correctional facility, and take time to learn who is there and about their cases, and you find literally thousands of people whose sentences were grossly excessive given their offenses. /3
Those people need commutations as a corrective because there is no parole or other second look in place to address that. Some have tried to use compassionate release under the First Step Act, but DOJ tries to block those efforts at every turn and it's a limited option. /4
Presidential commutations are thus the only avenue for these folks. And under President Obama, more than 1,700 regular people (not his cronies) received relief. It was woefully inadequate for the need, but it shows the value of the power. /5
Pardons are essential as well because the collateral consequences of convictions can be devastating for people trying to get housing, employment, and education after being convicted. There is no other way to clear a federal conviction than a pardon. /6
So before Senator Murphy immediately argues for stripping the one tool in place to address all this -- and all because we have someone with no moral compass exercising the power -- he should first set out to enact needed substitutes for what the power is doing. /7
Congress lacks the power to remove the pardon power from the Constitution, so his tweet is empty symbolism. (Though it is dangerous because it will make people think the pardon power is the problem instead of the person currently exercising it.) /8
But he could be pushing for real change through legislation -- second looks of sentencing, expungement options, removing collateral consequences of convictions, eliminating the mandatory minimums that cause so many of the excessive sentences in the first place. /9
As a legislator, that should be his focus. Not this ill-advised tweet that gets the balance of interests wrong precisely because he's not remotely well versed in the utility of the pardon power. If he was, he would never have concluded it's worth getting rid of. /10
Even if Congress had mechanisms in place that served similar functions as the pardon power, inevitably they would be flawed and there would still be instances of injustices that need correction. Thankfully the framers of the Constitution recognized that. /11
That's why the power has such a place of prominence -- right alongside the commander in chief powers. /12
We wouldn't say the president should no longer have those powers simply because a particular president did a terrible job using those powers, and we shouldn't gut the pardon power because the current officeholder is corrupt and has twisted values. /13
The solution to what's happening now is to get a better leader, which we've done. And my hope is that leader will see that the pardon power's utility is critical, and he'll show everyone what a real leader does when wielding it. /end

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More from @RachelBarkow

1 Aug
100% this -- we need civil rights lawyers and criminal defense lawyers on the judiciary. Right now it's mostly former government-side lawyers (mostly prosecutors). That's not a healthy balance when judges need to make sure individual rights are protected against govt overreach
This is urgent for many reasons, but I want to highlight it's especially critical for those interested in criminal justice reform. For far too long, the bench has turned a blind eye to government excess in criminal cases, from coercive plea practices to excessive sentences. /2
I have a chapter in my book, Prisoners of Politics, setting out all the areas where federal judges have fallen short. And I think one way to remedy this is to get a bench that is not so predisposed to take the government's side. /3
Read 6 tweets
9 Jul
The presidential election is critical for so many reasons, but I want to highlight what's at stake for criminal justice. The Unity Task Force put together by Biden and Sanders released their policy recommendations for the Democratic platform, and I want flag some key points /1
I'm going to focus on things that can happen even w/o Congress b/c these are real changes that could take place immediately. One is to "immediately withdraw the Trump Administration’s guidance
advising federal prosecutors to pursue the harshest penalties possible" /2
In its place will be "guidelines that advise prosecutors not to overcharge cases in order to coerce plea deals, or to
pursue harsher sentences in order to penalize citizens for exercising their right to a jury trial." /3
Read 17 tweets
17 Apr
One of the worst aspects of public policy making in America is that the public has little grasp of the value of prevention. So the fact that releasing people from prisons and jails helps stop the spread of COVID-19 gets devalued or ignored entirely. /1
Similarly, no matter how many times experts talk about how critical testing is to stop the spread, you see so many members unable to grasp that the Trump administration's failure to put widespread testing in place is the key reason we can't cut back on social distancing yet. /2
We see this everywhere: providing better health care would prevent deaths and illnesses and save money in the long-run; so would investing in better schools and infrastructure. These things would prevent worse outcomes, but the public doesn't focus on the value of prevention. /3
Read 19 tweets
11 Apr
We have tons of empirical evidence that sentences can be reduced w/out any hit to public safety. The US Sentencing Commission reduced federal crack sentences (about two years on average), and those folks who got retroactive reductions didn't offend at higher rates. /1
We've also seen states around the country reduce sentences for a range of crimes, from theft to drug crime to recidivist enhancements for all kinds of crimes, including violence. Those reductions did not lead to increases in crime. /2
And we've seen states reduce their jail populations pre-trial without any increases in crime. New Jersey, for example, long before COVID-19, lowered its jail population from its peak of 31,000 to 19,000, and crime didn't go up. /3
Read 5 tweets
23 Jul 19
I looked over the Biden criminal justice plan. While there are some positive things in here, there are also some red flags for me. His focus is forward-looking (and would require Congress as a partner) and the plan does little to remedy past injustices. /1
For example, his clemency proposal is modest at best, limited to "unduly long sentences for certain non-violent and drug crimes." This is a continuation of the Obama clemency initiative, which left thousands behind who merit clemency. /2
Moreover, there is no proposal to fix the system for granting clemency and take it out of DOJ, so there is no reason to believe the results will be any different in a Biden administration. /3
Read 10 tweets
21 May 19
As someone who writes about clemency, I wanted to share a few thoughts on how extraordinary it would be for the president to give a pardon to Navy SEAL Edward Gallagher before he was tried or convicted of his offense. /1
Although the president has the power to give a pardon before a conviction or trial, it is rare event. President Ford's pardon of President Nixon is the most famous example, where Ford did it for the "tranquility of the Nation." /2
Other examples of pre-trial/conviction pardons involve similar public policy reasons, as when Ford pardoned individuals facing prosecution for the Vietnam draft. The idea behind them was that the country would be better off if the matter could be put to rest. /3
Read 12 tweets

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