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Rachel Barkow Profile picture
Rachel Barkow
@RachelBarkow
NYU Law Prof and Faculty Director of the Zimroth Center on the Administration of Criminal Law. Author of Prisoners of Politics (Harvard/Belknap).
Dec 2 • 13 tweets • 3 min read
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
Jun 16, 2022 • 5 tweets • 2 min read
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…
Mar 17, 2022 • 9 tweets • 2 min read
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
Jan 9, 2022 • 14 tweets • 7 min read
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
May 30, 2021 • 6 tweets • 2 min read
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
May 18, 2021 • 27 tweets • 6 min read
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
May 17, 2021 • 6 tweets • 2 min read
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
Dec 24, 2020 • 14 tweets • 3 min read
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
Aug 1, 2020 • 6 tweets • 2 min read
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
Jul 9, 2020 • 17 tweets • 3 min read
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
Apr 17, 2020 • 19 tweets • 4 min read
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
Apr 11, 2020 • 5 tweets • 1 min read
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
Jul 23, 2019 • 10 tweets • 2 min read
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
May 21, 2019 • 12 tweets • 3 min read
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