Rachel Barkow Profile picture
Dec 2 13 tweets 3 min read Read on X
This seems like a good time to emphasize the relationship between the clemency power and Biden's legacy. As Mark Osler and I noted in September in a NY Times op-ed, Biden's pardon/commutation record is grim right now -- a historically low grant rate. /1
So the Hunter pardon stands out because it's so anomalous. It's not like Biden has been showing concern for people given excessive sentences or singled out for harsh treatment. /2
Many of us clemency advocates have been urging him for almost four years to use this power to correct injustices -- including some he created as the leader behind the insane mandatory minimum drug sentencing legislation that still exists today. /3
But he hasn't done that and has instead settled for symbolic gestures like a marijuana pardon proclamation that didn't release a single person from prison. /4
If he stops right now, he will go down in history as someone with one of the worst pardon records because he's helped so few regular people and singled out his son. But there is still time to right the ship. /5
Mark Osler and I laid out the easiest cases to focus on in the time remaining. He shoudl commuting federal death row sentences to life and fulfill his campaign promise to address the federal death penalty. /6
He should sign off on all the petitions that have been vetted by the Pardon Attorney and DOJ that have been recommended for granting. If a petition can get through that gauntlet, there is no reason for lawyers in the WH to spend time second guessing for political reasons. /7
There are thousands of people already out under the CARES Act, which allowed for release from prison because of the dangers of COVID. They are at risk of being sent back without clemency and have proven they can be safely out. /8
There was also no reason to stop the marijuana pardon at those charged with only possession. We still have people in prison for doing what others are now doing with state approval. They should get relief as well. /9
There are people who fell into a loophole and cannot get compassionate release because they fell under old federal laws and are eligible for a parole system that does not apply to most people anymore. These are called "old law" incarcerated people, and they also need relief. /10
These are all easy cases. I would add many others -- people of advanced age, people who would not get the same sentence today because of changes in the law but who did not get the benefit of retroactive release, people who have shown rehabilitation. /11
But the clock is ticking, and I get that we may have to settle for the easy ones. There is no reason not to at least grant those, and today's pardon puts all the more pressure on Biden to do it. His legacy hangs in the balance. /12
The way you show you don't just care about your own family is by using the powers of the presidency for everyone -- and so many people need this relief. If you want to read more, here's the op-ed: . /Endnytimes.com/2024/09/18/opi…

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More from @RachelBarkow

Jun 16, 2022
Just as a reminder, the actual pardon list (that Eastman was not on) included Roger Stone, Paul Manafort, Michael Flynn, Steve Bannon, Jeanine Pirro's ex-husband, Jared Kushner's father, Sheriff Joe Arpaio, Dinesh D'Souza, and Rod Blagojevich.
The full list is here: justice.gov/pardon/pardons…
And, yes, this process is really awful and needs to be fixed so that people without connections serving excessive sentences get relief. Here's how to do it: nytimes.com/2021/07/13/opi…
Read 5 tweets
Mar 17, 2022
The Josh Hawley criticism of Judge Jackson is ridiculous. His criticisms rest on a unanimous report by the Commission & the fact KBJ has sentenced defendants in non-production porn cases to sentences below the Guidelines. Both points are silly. /1
Less than 30% of all non-production cases get a Guidelines sentence because just about federal judge realizes these Guidelines are too severe. So KBJ is doing what most of the federal bench does. ussc.gov/sites/default/… /2
And that report was a unanimous one, joined by two Republicans. One of them is Judge Dabney Friedrich, who Josh Hawley voted to confirm without raising a word about the fact she also joined the report. /3
Read 9 tweets
Jan 9, 2022
A few thoughts on the recent attacks by police and segments of the media on @ManhattanDA's charging policies /1

Conflict Quickly Emerges Between Top Prosecutor and Police Commissioner nytimes.com/2022/01/08/nyr…
@ManhattanDA First, the DA was elected on precisely these policies. See alvinbragg.com/plans. He pledged to focus office resources on violent crime and not to overcharge lesser offenses that all too often result in needless confrontations between the police and the community. /2
@ManhattanDA Voters wanted this approach. To see the police and NY Post and others attack these policies is an attack on the voters and democracy because this is precisely what DA Bragg said he would do, and the voters elected him because of it /3
Read 14 tweets
May 30, 2021
Doesn't anyone fact check opinion columnists @nytimes? Because police budgets have largely increased around the country, not decreased, and homicides are up in cities with increased police budgets as well as those that have stayed the same. /1
One of the reasons we got mass incarceration in the first place is the media just acting as stenographers for the police and saying whatever they wanted about the relationship b/t crime and policing and punishment. /2
But responsible journalism should mean talking to people who actually study these relationships with rigor to see what's correlation and what's causation and what we know. Instead, all too often we just get oversimplified messaging like this that misleads people. /3
Read 6 tweets
May 18, 2021
I want to highlight some of the things in this article that are worrisome to me because I fear this is a bad sign of where the administration is headed on clemency and criminal justice more generally. /1 nytimes.com/2021/05/17/us/…
The first red flag is the statement that the president could issue commutations or pardons "by the midpoint of his term." That tells me a couple things. First, this is a low priority for the president b/c 2 years is way too long for something that doesn't require Congress /2
Clemency is something the president alone controls, so a two-year time horizon is a choice, and it's a bad one given that there is a 15K petition backlog. This should be considered a code red emergency to deal with ASAP. /3
Read 27 tweets
May 17, 2021
The SCt decides it won't make its jury unanimity requirement retroactive b/c it basically wants to stop being in the business of deciding whether anything should be retroactive and relies on 32 years of the Ct ducking its responsibility to say it can duck it here, too. 🤯
Our failure to retroactively fix mistakes is one of the biggest tragedies in criminal law. We have people languishing in prisons around the country serving sentences they wouldn't be given today or convicted based on racist or otherwise defective procedures (as in this case). /2
We can't rely on the SCt to fix it, but that doesn't mean we should give up. State courts can do better, state AGs and DAs can seek to modify sentences or seek release of people, and state legislatures can and should have retroactive relief built into the law. /3
Read 6 tweets

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