A group of House lawmakers on Friday are set to unveil new legislation that would remove the federal clemency process from the Justice Department and instead create an independent clemency board for people who have been convicted of federal crimes.
The creation of such an independent board has been a priority of some criminal justice activists, who argue that the Justice Department is not well suited to submit clemency recommendations to the White House, as the agency also leads those prosecutions.
"There's this inherent conflict of interest. So it's greatly influenced by law enforcement, by prosecutorial interests. It has these redundant levels of scrutiny by [Department of Justice] staff who can unilaterally obstruct the clemency application from reaching the president," said Massachusetts Rep. Ayanna Pressley, the bill's chief sponsor. "And again, behind every application is an individual, an individual connected to a family, a family that's a part of a community. So people's lives are quite literally hanging in the balance."
Pressley is introducing the legislation along with co-sponsors Reps. Hakeem Jeffries of New York and Cori Bush of Missouri, all Democrats. The details of the proposal were shared first with NPR.
The bill, known as the FIX Clemency Act, would abolish the Justice Department's Office of the Pardon Attorney, and instead create a nine-member board to review clemency cases. Members of the board would be appointed by the president.
The bill calls for members of the board to include a formerly incarcerated person, a person who has been directly impacted by crime, an individual who has served in a federal defender organization and a representative of the Department of Justice.
"We reserve a spot for folks that we know should be at the table, including someone who was formerly incarcerated," said Pressley when asked about the makeup of the panel. "So each expert on the board will have relevant experience in fields like behavioral health, rehabilitation and reentry. And again, it's just important that we have someone who has experienced the trauma that is mass incarceration bringing their lived experience to the review of these applications."
This issue is one that is personal for Pressley, who said her father cycled "in and out of the criminal legal system for some 14 years" and struggled with substance use.
"I know what my father deserved was culturally competent, on-demand treatment. What my father deserved, like so many others, was to not have his disease criminalized," she said. "And again, that's a systemic problem. My father, our family is no anomaly."
Former President Donald Trump's approach to clemency largely bypassed the Justice Department and he instead used it to help out a number of prominent supporters, friends and celebrities.
The White House so far has offered little detail publicly about what President Biden plans to do to resolve the backlog of clemency cases in the United States, more than 15,000 cases. And the issue was not one that he focused on frequently as a political candidate. But as a part of his campaign's platform, Biden said that he would "broadly use his clemency power for certain non-violent and drug crimes."
The Democratic Party's 2020 platform voiced support for the creation of an independent clemency board "to ensure an appropriate, effective process for using clemency, especially to address systemic racism and other priorities."
Pressley said she has been in touch with the Biden administration about the proposal, and pointed out that though the board would make recommendations, all clemency power would be retained by the president.
She said that she believes that Biden shares a "commitment" to the goal of reducing the country's prison population and ending the system of mass incarceration.
"Clemency has been underused, it's an overlooked tool for healing and for justice, and again it will be an effective tool when it is fair, when it is efficient and when it is transparent," she said.
If enacted, the bill would only cover a modest proportion of the United States' overall prison population. The nonprofit Prison Policy Initiative estimated in 2020 that there were nearly 2.3 million incarcerated people. Just 226,000, about 10%, are in the federal prison system and would be potentially eligible for clemency under the proposed overhaul.
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