[House Hearing, 116 Congress] [From the U.S. Government Publishing Office] PRESIDENTIAL CLEMENCY AND OPPORTUNITIES FOR REFORM ======================================================================= HEARING BEFORE THE SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES OF THE COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES ONE HUNDRED SIXTEENTH CONGRESS SECOND SESSION __________ MARCH 5, 2020 __________ Serial No. 116-78 __________ Printed for the use of the Committee on the Judiciary [GRAPHIC NOT AVAILABLE IN TIFF FORMAT] Available http://judiciary.house.gov or www.govinfo.gov __________ U.S. GOVERNMENT PUBLISHING OFFICE 41-289 PDF WASHINGTON : 2020 ------------------------------------------------------------------------------ COMMITTEE ON THE JUDICIARY JERROLD NADLER, New York, Chairman ZOE LOFGREN, California DOUG COLLINS, Georgia, SHEILA JACKSON LEE, Texas Ranking Member STEVE COHEN, Tennessee F. JAMES SENSENBRENNER, Jr., HENRY C. ``HANK'' JOHNSON, Jr., Wisconsin Georgia STEVE CHABOT, Ohio THEODORE E. DEUTCH, Florida LOUIE GOHMERT, Texas KAREN BASS, California JIM JORDAN, Ohio CEDRIC L. RICHMOND, Louisiana KEN BUCK, Colorado HAKEEM S. JEFFRIES, New York JOHN RATCLIFFE, Texas DAVID N. CICILLINE, Rhode Island MARTHA ROBY, Alabama ERIC SWALWELL, California MATT GAETZ, Florida TED LIEU, California MIKE JOHNSON, Louisiana JAMIE RASKIN, Maryland ANDY BIGGS, Arizona PRAMILA JAYAPAL, Washington TOM McCLINTOCK, California VAL BUTLER DEMINGS, Florida DEBBIE LESKO, Arizona J. LUIS CORREA, California GUY RESCHENTHALER, Pennsylvania MARY GAY SCANLON, Pennsylvania, BEN CLINE, Virginia Vice-Chair KELLY ARMSTRONG, North Dakota SYLVIA R. GARCIA, Texas W. GREGORY STEUBE, Florida JOE NEGUSE, Colorado LUCY McBATH, Georgia GREG STANTON, Arizona MADELEINE DEAN, Pennsylvania DEBBIE MUCARSEL-POWELL, Florida VERONICA ESCOBAR, Texas Perry Apelbaum, Majority Staff Director & Chief Counsel Brendan Belair, Minority Staff Director ------ SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES STEVE COHEN, Tennessee, Chair JAMIE RASKIN, Maryland MIKE JOHNSON, Louisiana, ERIC SWALWELL, California Ranking Member MARY GAY SCANLON, Pennsylvania LOUIE GOHMERT, Texas MADELEINE DEAN, Pennsylvania JIM JORDAN, Ohio SYLVIA R. GARCIA, Texas GUY RESCHENTHALER, Pennsylvania VERONICA ESCOBAR, Texas BEN CLINE, Virginia SHEILA JACKSON LEE, Texas KELLY ARMSTRONG, North Dakota James Park, Chief Counsel Paul Taylor, Minority Counseldeg. C O N T E N T S ---------- MARCH 5, 2020 OPENING STATEMENTS Page The Honorable Steve Cohen, Chairman, Subcommittee on the Constitution, Civil Rights, and Civil Liberties................ 1 The Honorable Mike Johnson, Ranking Member, Subcommittee on the Constitution, Civil Rights, and Civil Liberties................ 21 The Honorable Jerrold Nadler, Chairman, Committee on the Judiciary...................................................... 23 The Honorable Doug Collins, Ranking Member, Committee on the Judiciary...................................................... 25 WITNESSES Kemba Smith Pradia, Founder, Kemba Smith Foundation Oral Testimony............................................... 29 Prepared Testimony........................................... 33 Cynthia W. Roseberry, Deputy Director, National Policy Advocacy Department, America Civil Liberties Union Oral Testimony............................................... 37 Prepared Testimony........................................... 40 Mark Osler, Professor and Robert and Marion Short Distinguished Chair in Law, University of St. Thomas School of Law Oral Testimony............................................... 45 Prepared Testimony........................................... 47 Rachel E. Barkow, Vice Dean and Segal Family Professor of Regulatory Law and Policy and, Faculty Director, Center on the Administration of Criminal Law, New York University School of Law Oral Testimony............................................... 53 Prepared Testimony........................................... 56 LETTERS, STATEMENTS, ETC. SUBMITTED FOR THE HEARING Items for the record submitted by the Honorable Steve Cohen, Chairman, Subcommittee on the Constitution, Civil Rights, and Civil Liberties................................................ 3 APPENDIX Items for the record submitted by The Honorable Mary Gay Scanlon, Subcommittee on the Constitution, Civil Rights, and Civil Liberties...................................................... 85 PRESIDENTIAL CLEMENCY AND OPPORTUNITIES FOR REFORM ---------- THURSDAY, MARCH 5, 2020 House of Representatives Subcommittee on the Constitution, Civil Rights, and Civil Liberties Committee on the Judiciary Washington, DC. The subcommittee met, pursuant to call, at 9:06 a.m., in Room 2141, Rayburn House Office Building, Hon. Steve Cohen [chairman of the subcommittee] presiding. Present: Representatives Cohen, Nadler, Raskin, Scanlon, Dean, Garcia, Jackson Lee, Johnson, Jordan, Collins, Reschenthaler, Cline, and Armstrong. Staff Present: David Greengrass, Senior Counsel; Madeline Strasser, Chief Clerk; Moh Sharma, Member Services and Outreach Advisor; Anthony Valdez, Staff Assistant; John Williams, Parliamentarian; James Park, Chief Counsel; Will Emmons, Professional Staff Member; Matt Morgan, Counsel; Paul Taylor, Minority Counsel; and Andrea Woodard, Minority Professional Staff Member. Mr. COHEN. The subcommittee of the full committee, the Subcommittee on the Constitution, Civil Rights, and Civil Liberties will come to order. Without objection, I am the chair, and I am authorized to declare a recess of the subcommittee at any time. I welcome everyone to today's hearing on presidential clemency and opportunities for reform. I will recognize myself for an opening statement. Not far from here, almost 57 years ago, Dr. Martin Luther King spoke movingly to remind America of the fierce urgency of now, because now is the time to make justice a reality for all of God's children. We hold this hearing today to remind America that today there are few things more fiercely urgent than the need to grant clemency to the thousands who suffer from the burdens of excessive and unjust imprisonment, or the collateral consequences stemming from their criminal convictions. Perhaps not coincidentally, these burdens are disproportionately borne by people of color. The Constitution provides the President with broad authority to grant clemency because the Framers understood that the criminal justice needed a safety valve that would guard against excessive or unjust punishments. Article II, Section 2 gives the President the power to, quote, ``grant reprieves and pardons for offenses against the United States except in cases of impeachment,'' unquote. Until fairly recently, most Presidents were relatively generous in granting clemency. According to a statistical analysis by one of our witnesses, Professor Rachel Barkow, between 1892 and 1930, 27 percent of clemency applications resulted in some form of clemency. As recently as the 1970s, President Carter granted 21 percent of the petitions he received; President Ford granted 27 percent; and President Nixon, who was famously known as a law and order President, nonetheless, he granted 36 percent of clemency petitions. It was only the beginning of the 1980s that clemency grants began to decline sharply. I have long been concerned with the stinginess with which modern Presidents have granted clemency. And between 2013 and 2014, I wrote four different letters to my favorite President, President Obama, and then Attorney General Holder, urging the President to grant more clemency petitions, and authored two opinion pieces on the subject. And I would ask unanimous consent to insert these letters and opinions pieces into the record. Without objection, so done. Thank you. [The information follows:] MR. COHEN FOR THE OFFICIAL RECORD ======================================================================= [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] Mr. Cohen. With President Trump, I am afraid that we have received a new low when it comes to the clemency power in terms of the number of petitions he has granted, his seemingly self- interested motivations for his clemency decisions, his unwillingness to use a systematic, transparent objective process for considering clemency petitions. In President Obama's situation, he was a little slower, or a lot slower than I thought he should be, and I exorcised him every time I saw him. Every opportunity I had with him, I told him we need to get clemencies done and get it started. He was a very thorough President. He set up a board. They did issue, I think it was, give or take, 2,500 commutations or pardons toward the end. They were all done objectively through a process. I thought he should be done closer to 10,000 or more, because there were so many people languishing. But he did some, and he got it started. With Trump, we have seen it change, though. There have been very few pardons issued, commutations issued, and most of them have been based on President Trump's whims, his noting who supported the commutation or pardon request shows that they were not done in an objective basis, but a subjective basis, not what the law decided on an objective, look at your record and your sentencing, and your reformation, but who wanted you to be pardoned, and that is not the way we are supposed to do it. Presidents have customarily relied upon the recommendations of the pardon attorney who is within the Department of Justice in making decisions about clemency. Well, that process is subject to legitimate criticism because Justice is often not interested in granting clemencies that are involved with prosecutions that underlings in Justice might have secured. They are still involved in the clemency process and have been. That process is the one we have, but President Trump, in contrast, has completely circumvented even that process, the Department of Justice has, in making clemency decisions, not asking them to look at cases and give him advice, but treating clemency like it is solely his personal gift to bestow upon individuals, like the king, from which this power kind of came overseas and into our Constitution. And according to The New York Times, most of his clemency grants were the results of these inside connections. Sylvester Stallone for the posthumous clemency of Jack Johnson, Kardashian woman for the other famous pardon of Alice Marie Johnson, and a few of her friends or people that she met while incarcerated. And then there has been others, similar with Milken and others, Eddie DeBartolo. So those were inside connections who were even boasted of or publicized by President Trump, and sometimes it was the promotion of Fox News, but not the clemency office in the Department of Justice. So, according to a review conducted by The Washington Post, all but five of the 24 people who have received clemency from Trump had a line into the White House, or currency with his political base, meaning that that is not a blind process. Just last month, President Trump issued seven pardons, four commutations, including a pardon for the 1980s, quote, junk bond king, Michael Milken, the very personification in culture and life of Wall Street greed and excess, who was convicted and served prison time for securities fraud and conspiracy. According to The New York Times, Mr. Milken's pardon was a result of lobbying by many individuals with close ties to President Trump, including his personal lawyer, Rudy Giuliani, who, I think, earlier, might have been his personal prosecutor, and his largest donor, Sheldon Adelson. Treasury Secretary Steve Mnuchin, Jared Kushner, and Ivanka Trump also advocated for that pardon. The Milken pardon shines a harsh light on the fact under President Trump, pardons are mainly for the rich, the famous, and the well-connected. And that was in spite the fact that Mr. Milken, when he was convicted, was told not to make any deals. And then he got a $50 million fee for doing the deal between Time Warner and Comcast. That merger--was it Comcast? I think it was. CNN. Time Warner. Whoever it was, it was a Ted Turner deal. He got $50 million and wasn't supposed to do it. Even when President Trump grants clemency in a deserving case, he does so seemingly for the wrong reasons, and through the wrong means. In June 2018, he commuted the sentence of a lady who was one of my constituents at the time, now an Arizonan, Alice Marie Johnson, a 63-year-old woman serving a life sentence for a non-violent drug offense, but only after reality TV star Kim Kardashian lobbied on her behalf. While I strongly supported the commutation of Ms. Johnson, as I have other constituents of mine, President Trump appears to have considered the merits of her application only because she attracted the attention of a celebrity patron. Most of my constituents, or all of my constituents, do not have that luck. Similarly, President Trump posthumously pardoned boxer Jack Johnson, whose case was brought by Sylvester Stallone. Justice is supposed to be blind. The thousands serving time for nonviolent drug offenses did not have Kim Kardashian or Sylvester Stallone to plead their cases for clemency, but they are just as deserving of relief, or maybe more so. These nonviolent individuals should be released based on their records and not celebrity endorsements, or arbitrary whims of the President. I have written President Trump and suggested setting up the panel like President Obama had, and grant the clemency. Even better than the bill that I think Congressman Collins might have been a sponsor of, or the prime sponsor, the Second Chance Act, which I proudly supported, even when Democrats were resistant because it was a step in the right direction and a good thing to do. But Second Step is not as good as, or can cover as many people as clemency can. And so I urged President Trump to use clemency, but did not hear back from him. Clemency should be expanded to become a routine part of the criminal justice system. The decisions as to when clemency should be granted must be made on objective, transparent, and systematic processes. This is right and just. This is the rule of law. President Trump has granted clemency in 24 cases, but there have been more than 7,700 petitions filed during his President thus far. So it is not hard to figure. That is less than 1 percent, way less than 1 percent. .3 percent, by the way, and nowhere near the 36 percent of Richard Nixon. Our Nation's prison population is larger than ever, and many remain in prison because of mandatory minimums and sentencing disparities that Congress repealed without making the repeal retroactive. In other words, many remain in prison based on public policy of Congress, avoiding leaving many unjustly in prison. And while my concern is for justice and for those without their families, and wallowing in our prison system, everybody pays for this. The prison system is extremely expensive, and taxpayers are paying for this lack of action. We will hear from our witnesses' proposals for reform of the clemency process, and ways to address the need for clemency. In 2013, I proposed the creation of a compassionate release review board that would review sentences of current prisoners and make clemency recommendations. I also introduced H.J. Res. 8, a constitutional amendment that would ensure that no President could abuse the clemency power to escape accountability for his or her own crimes. I hope we consider these and other ideas. I thank our witnesses for being here. I am looking forward to a fulsome discussion on the subject, and I would now recognize the ranking member of the subcommittee, the gentleman from Louisiana, Mr. Johnson, for his opening statement. Mr. Johnson. Thank you, Mr. Chairman, and welcome to the House Constitution Subcommittee. I am glad to see students in the audience. We are talking about important constitutional matters here, so I hope you find it interesting. This is an interesting hearing. It is on the presidential clemency power. We get that power out of the Constitution. I have to say at the beginning, I always disagree with the guy sitting next to me, because we are in different parties, and I, of course, disagree with his characterization of President Trump's clemency decision process. And I am not so sure The New York Times is the best source to evaluate the objectivity of President Trump. But that aside, Article II, Section 2 of the Constitution is where we find the clemency power, and it gives the President the authority, as the Constitution says, quote, ``to grant reprieves and pardons for offenses against the United States except in cases of impeachment,'' unquote. Chief Justice John Marshall described the exercise of the pardon power in 1833, and he said it this way: He said, quote, ``It is an act of grace preceding from the power entrusted with the execution of the laws, which exempts the individual on whom it is bestowed, from the punishment the law inflicts for a crime he has committed,'' unquote. Pardons have both a public and a private meaning, and to some people, it even has a spiritual component. You think about what the Apostle Paul explained to the church in Corinth in the New Testament Book of Second Corinthians. He said it this way: Now, if anyone has caused pain, he has caused it not to me but in some measure to all of you. For such a one, this punishment by the majority is enough. So you should rather turn to forgive and comfort him, or he may be overwhelmed by excessive sorrow. So I beg you to reaffirm your love for him. I mean, that is what the Bible says. So the commission of a crime, of course, does harm everyone, and that is why crimes must be punished by government. That is kind of the role of government is to maintain the rule of law. But not forgiving also harms everyone, not only by denying individuals themselves forgiveness when warranted, but by denying society as a whole, the catharsis that comes with forgiveness, along with the ability to move on as a people. And, so, our Constitution grants the chief executive not just the power to punish, but also the power to, in a legal sense, forgive. That is a powerful thing. Of course, along with any public power in democracy comes politics, and the larger significance of any presidential pardon regarding any particular person can too often be obscured today by partisan political rhetoric. It happens all the time. You heard a little bit of it already this morning. But as Alexander Hamilton wrote of the pardon power in Federalist Paper No. 74, quote, ``Humanity and good policy conspire to dictate that the benign prerogative of pardoning should be as little as impossible, fettered or embarrassed. The criminal code of every country partakes so much of necessary severity that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too cruel,'' unquote. See, our Founding Fathers sought to create a system in which lines of accountability were clear so that people could make reasonable decisions regarding whom was responsible for what when they cast their votes for candidates. Too much bureaucracy foils that plan of our Founders today. As one of the witnesses here today, Professor Mark Osler, says in his written testimony, quote, ``The Obama administration created a system that not only left the broken system in place, but added bureaucracy to it. The fact that good cases were left on the table is revealed not only by the repeated rejection of Alice Marie Johnson,'' who we heard about this morning, ``but the thousands who have been released under the First Step Act. A review by the DOJ's Inspector General revealed a wealth of problems with the Obama program's implementation, many of which could have been avoided if the underlying process had been restructured,'' unquote. Whatever its flawed implementation in any given circumstance, the constitutional clemency power should not be amended to limit presidential discretion. As Professor Osler also states, quote, ``Clemency, after all, is not suited to be a tool of tyranny. Tyrants gain power by putting people in prison, not by letting them out. Hamilton was perhaps getting to that and referring to clemency as a benign prerogative. We may object to particular grants, but restrictions would be consistent with neither the constitutional scheme or the intent of the Framers,'' unquote. I hope our hearing today will both recognize the need to protect Americans from dangerous criminals which, we all respect but also, allow some breathing space for the universal soul of the pardon process, namely, forgiveness. The pursuit of law and order, the encouragement of redemption are not mutually exclusive pursuits. These are quintessential American values. I will make one more Bible quote, since we are talking about forgiveness. Micah 6:8 is in the Old Testament. It says, He has shown the old man what is good and what the Lord requires if you are to act justly, love mercy, and walk humbly with your God. It must be possible to do all three because the creator who has endowed us with all of these inalienable rights and freedoms requires it of us. I hope we can do that. I look forward to hearing from all of our witnesses here today, and thank you again for being with us. I yield back. Mr. Cohen. Before I recognize the chairman for his statement, I want to address the school children who are here. You heard some remarks by my colleague suggesting I had injected politics into this and been partisan. I hope you were here when I let you know that I have criticized President Obama, too, for what I thought was a late process and not issuing enough commutations; I wrote letters that I have entered into the record about President Obama; and I supported President Trump's Second Chance Act; and that I supported Alice Marie Johnson's pardon, or commutation, excuse me. But the fact is that is not partisan. And to say The New York Times can't be objective, nobody can be in favor of giving a pardon or a commutation to a junk bond king worth billions of dollars who objects to and overrules the court's orders, and flagrantly does. I recognize Mr. Nadler. Mr. Johnson of Louisiana. Touche, and I actually love the guy. I really do. Chairman Nadler. Thank you, Mr. Chairman. Before I begin my prepared remarks, I would like to start by commenting on some of the remarks we have just heard in the last few minutes. The gentleman from Louisiana, I think it is, said that tyranny--and quoted, I think, Alexander Hamilton. Tyranny can result from putting people in jail, not from letting people out of jail. I would point out it can result either way. If you have a President or any executive who puts people in jail when he shouldn't, who violates the rule of law, who violates due process, obviously you are on the road to tyranny. If you have a President who uses the pardon power to pardon his own confederates in crimes, to pardon all of his friends, to pardon anybody who may have committed a crime in his behalf so that he can evade the rule of law, then that can lead to tyranny, too. And I would quote, the debates at the Constitutional Convention, when they were debating the pardon power, and James Iredell from Pennsylvania asked, or maybe the pardon power that we are designing here is too broad, and what if a President committed--what if a President engaged in criminal conspiracy and pardoned his co-conspirators? And James Madison answered, Well, that could never happen because a President would immediately--any such President would be impeached. I would submit the history of the last few months shows that Madison was wrong, and that any such President would not necessarily immediately be impeached, unfortunately, so we do not have an effective guarantee against tyranny by a President, or by anybody else or by a tyrant or would be tyrant who would use the pardon power or threaten to use, as the current President has, to pardon his own co-conspirators. Article II, Section 2 of the Constitution provides the President with the power, quote, ``to grant reprieves and pardons for offenses against the United States except in cases of impeachment.'' The fundamental purpose of the clemency power is to ensure that justice is tempered with mercy. Although presidential clemency is commonly viewed as an occasional act of mercy, the Framers also understood that clemency is also necessary to the fair administration of justice. As Alexander Hamilton noted in Federalist 74 regarding the clemency power, and I think this has already been quoted this morning, without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel. As such, presidential clemency should be a routine part of the Federal criminal justice system. Unfortunately, over the past several decades, under both Republican and Democratic administrations, the executive branch has failed to fully employ the clemency power to help remedy injustice as the Framers intended. For example, after decades of mandatory sentencing policies in the so-called war on drugs, far too many non-violent Federal offenders, disproportionately people of color, sit in prison unnecessarily, serving unduly harsh sentences. And many others continue to face hardships after serving their time and seeking full entry, reentry into their communities because of the collateral consequences caused by their Federal convictions. Yet, thousands of petitions for clemency remain pending with the Department of Justice's Office of Pardon Attorney, to which the executive branch has customarily delegated the responsibility of processing candidates for clemency. Presidential administrations of both parties have been rightly criticized for deficiencies in the Department of Justice's clemency process. In fact, our witnesses today all agree that the current process housed at the Justice Department, must be reformed in order to increase the rate and diversity of clemency grants. Some critics of the current process even believe that it should be taken out of the Department of Justice altogether. I am pleased that this hearing will allow us to examine various proposals for reforming the clemency process. While the current DOJ process may be in real need of reform, at least it is a process. Legitimate questions have been raised about President Trump's seemingly arbitrary approach to clemency, which seems to have completely bypassed the Department of Justice. To be clear, concerns that special access to the presidency plays a role in the granting of clemency are not unique to President Trump. This exercise of the clemency power over the past 3 years, however, as pointedly demonstrated that special access to the President is not just a factor in some clemency grants, but in this administration, it may well be the only factor. Just last month, President Trump granted clemency to 11 individuals. The New York Times reported that these recent clemency grants came about through, quote, ``An ad hoc scramble to bypass formal procedures used by past Presidents,'' and were, quote, ``driven by friendship, fame, personal empathy, and a shared sense of persecution.'' The Times also noted that every single one of their recipients had an inside connection or were promoted on Fox News. This is not to say that every recipient of the clemency grant by President Trump is undeserving of mercy and forgiveness, but we must put his clemency decisions in context. To the point of this hearing, while President Trump has made publicizing clemency grants a hallmark of his administration, he has issued very few of them. According to one witness's data analysis, he has granted only 24 out of 7,748 petitions received during his administration, or .3 percent of petitions. These numbers are exceptionally low even when compared to the historically low grant of President Trump's recent predecessors. While Congress has little authority over the President's exercise of the clemency power, Congress does have the power to enact criminal justice reform measures. I commend the President for joining with Congress to enact the First Step Act into law 2 years ago. That said, paving the way for more clemency grants does not lay in a process that depends almost entirely on special access to the White House. It is within President Trump's power today to create a process that ensures clemency petitions are treated fairly as a routine aspect of the Federal criminal justice system. To the extent that Congress can assist with this process, we should examine all options available to us. With that, I would like to thank the witnesses for appearing, and I look forward to hearing their testimony today. Mr. Cohen. Thank you, Mr. Chair. I now recognize the ranking member of the committee and the prime sponsor of the First Step Act, Mr. Collins of Georgia. Mr. Collins. Thank you, Mr. Chairman. I came here this morning on a day in which we are flying out, hoping that we would talk about a positive thing that we are working for, and instead, they can't help themselves. The chairman of the subcommittee, the chairman of the committee can't help themselves but to politicize. They just don't like the President. Let's put a sign in this committee room. As long the Democrats are--we can put up there we don't like the President. We know it, so let's get over it, okay. Yes. I mean, if we want to go back, and we will talk about President Obama on the last day commuting 300, including Chelsea Manning? I mean, if we want to talk about these, let's do that, but why don't we talk about the positive? We don't want to, because we failed in impeachment, and we can't forget it. I just--it is just stunning to me. This committee, which can do so much to help those that are incarcerated, those that are facing the criminal justice system, those that are going through it, has frankly just been AWOL the last year and a half. But we did something in the last term, and in fact, this what makes this so much sadder. At last Congress, I did partner with a number of my colleagues across the aisle, dear friends, Hakeem Jeffries and others, to get the First Step Act to President Trump's desk for a signature. Yes. President Trump's desk for a signature, after 8 years under the previous administration, which we talked about it a lot. I was supportive of those measures. It never happened. Never happened. So the first meaningful stuff that actually happened is from President Trump. As many of you know, that bill was near and dear to my heart. It was something we put a lot of time and effort into. And my colleagues on the other side of the aisle, Hakeem in particular, who did yeoman's work on his side and our friends in the Senate who added things to it, but also worked yeoman's work, made something different for the American people. When Matthew Charles walked into the room just beside me in that library and hugged me, and as he had done with Hakeem and others, saying I am now out of prison because of the First Step Act, thank you, and now his life has changed and is different. Those are the positive stories we need to talk about. Those are the things that clemency can bring, that pardons can bring. Just simply griping at a President you don't like because the way that it has been handled, and because you can go back on both sides and talk about how Presidents have not done it over the past 25 years is not the way to start this. Since the First Step Act was signed into law, we have seen communities restored, hope renewed, and families reunited. That legislation is the measure of mercy that should serve as a guide towards potential future reforms. The First Step Act ensures dangerous violent criminals serve their time behind bars. It excludes the Nation's most dangerous offenders from applying any time credit for their sentences, and no prisoner that has a recidivism risk level higher than low is eligible for prerelease into custody under the First Step Act. And the warden, who ultimately knows the prisoner best, makes the final decision. There is a lot of lies going on about this act. This is what it actually does. And it all goes back to what I used to say about this building, monies and morals. It is how we spend our money for people that we do incarcerate, that our morals are how we feel about them, that we give them a chance when they get out to make something of their life. Ninety-five percent of all individuals who go to jail get out. They don't go there to die. They get out. What are we doing as a Federal system, and how are we encouraging State and locals to look at them as human beings that they are, many who made mistakes, many of them made tragic mistakes, many of them with mental health, with addictions and other things, we have got to provide a better way. For those 5 to 10 percent who need to stay in forever, they have got plenty of jail space for them. If you want to live outside the law, and you want to do something so heinous, you are going to stay in there, and nobody has said you can get out. But for those who deserve a chance, that is what this bill does. The First Step Act embodies the mercy and forgiveness that must accompany any law enforcement regime governing human affairs. I stood by the President when he made his remarks last year at the Prison Reform Summit and the First Step Act celebration, when he stated this landmark legislation will give countless current and former prisoners a second chance at life, and a new opportunity to contribute to their communities, their States, and their Nations. As President, I pledge to work with both parties for the good of the whole Nation. The more I spoke and met with those individuals, those involved in our criminal justice system, the more clear it became, that unfair sentencing rules were contributing to the cycle of poverty and crime like nothing else before. It was time to fix this broken system and to improve the lives of so many nonviolent prisoners who will have opportunity to participate in vocational training, education, drug treatment programs. When they get out of prison, they will be ready to get a job, instead of turning back to a life of crime. As we consider executive clemency process, I would hope the same sentiments will help guide us today, even with the start of this hearing. The constitutional authority to the President to pardon offenders under the Constitution is very broad, and not up for changing by law in this committee. That is a constitutional guarantee. You want to have a constitutional amendment, maybe so, but not any other way. Congress doesn't have the constitutional authority to restrict the President's pardon authority in any significant way. And the Constitution gives the President vast ways to decide who may receive a pardon and when it be issued. But there is also precedent for Congress to provide a variety of ways in which we can, with the Department of Justice and other entities, assist the President in evaluating applications. The result of any such evaluation is simply advisory, and they cannot bind the President's Article II authority to pardon. The President also can't be required to consult with any person or entity before considering a pardon. But the President can consider standards for reviewing pardon petitions, and the Department of Justice has offered just that in the past and continues to do so today. Factors taken into consideration include post conviction conduct, character, and reputation, seriousness and relative offense, acceptance of responsibility, remorse, atonement, and the need for relief, and official recommendations and reports. Of course, beyond such official guidance, the President can always consult with his beliefs and faith understandings. In my experience, and from my background, I have been moved again by the words of the Psalmist who said, You, Lord, are forgiving and good, abounding in love all who call to You. Stated in the New Testament in Corinthians, he says that we are committed to a message of reconciliation. That is faith. But the best many times comes from just the simple instructions that we find in Ephesians, that says, Be kind and compassionate, one to another, forgiving each other just as Christ forgave you. The fundamental message of Scripture which drives many, including myself, speaks of promise, hope, and redemption always following human cruelty. It is with that spirit that I would hope from here on out we approach this subject today, because at the end of the day, it is not about what goes on on this stage right here. It is about those who right now who are behind bars, it is behind those who are getting ready to enter the criminal justice system, who are going through the struggles that this committee can help and can be a part of. And if we focus on them, then lives can be changed. Instead of making it harder, we ought to be reaching out with a hand to lift up, because they are the least among us. With that, I yield back. Mr. Cohen. Thank you. Now that we have had our spiritual hour, I would remind the witnesses and the committee that this hearing is entitled, and is, Presidential Clemency and Opportunities for Reform, not what I have done in the past and why you should elect me Senator from Georgia. I will now introduce each of the witnesses, and after each introduction, will recognize that witness for his or her oral testimony. Please note that your written statement will be entered into the record. I ask you to summarize your testimony to 5 minutes. To help you stay within the time, there is lights in front of you. The green light means go. The yellow means you have got a minute left, and red means you should be finished at that time. Each witness is under a legal obligation to provide truthful testimony in answers to the subcommittee and that any false statement you make today may be subject to prosecution under Section 1001 of Title 18 of the United States Code. Sometimes people have been sworn in by committees, sometimes not. It is not a requirement, and there is nothing in law to say that you should be sworn. That would mean that you would take an oath under God as a witness to do so. That is what I call the Mitt Romney oath, that God requires you to do what is right. But we have only seen that happen once recently, so I won't do that here. Our first witness is Kemba Smith Pradia. In 1994, Mrs. Pradia, who had no prior criminal record, was sentenced to 24- 1/2 years in prison for conspiracy in her boyfriend's illegal drug-related activities, a nonviolent, first-time offense. Due to Federal sentencing guidelines in place, the court could not account for the substantial mitigating factors in her case, including that she participated in her boyfriend's criminal activities out of fear for her life. In 2000, President Clinton commuted her sentence to time served. In December 2014, she was appointed to the Virginia Criminal Sentencing Commission. In 2019, she was appointed to the Virginia Parole Board, the first former inmate to serve on the parole board. She is also the author of Poster Child, a book about her experiences with the criminal justice system, and works as an advocate for criminal justice reform. After her release, Mrs. Pradia earned a Bachelor's degree in social work from Virginia Union University and a law degree from Howard University School of Law. Thank you, and you are recognized. Was there a mistake there? You are shaking your head, but you are recognized for 5 minutes. Did we make a mistake in your intro? Ms. Pradia. No law degree. Mr. Cohen. Okay. You are recognized. STATEMENTS OF KEMBA SMITH PRADIA, FOUNDER, KEMBA SMITH FOUNDATION; CYNTHIA ROSEBERRY, DEPUTY DIRECTOR, NATIONAL POLICY ADVOCACY DEPARTMENT, AMERICAN CIVIL LIBERTIES UNION; MARK OSLER, PROFESSOR AND ROBERT AND MARION SHORT DISTINGUISHED CHAIR IN LAW, UNIVERSITY OF ST. THOMAS SCHOOL OF LAW; AND RACHEL BARKOW, VICE DEAN AND SEGAL FAMILY PROFESSOR OF REGULATORY LAW AND POLICY AND FACULTY DIRECTOR, CENTER ON THE ADMINISTRATION OF CRIMINAL LAW, NEW YORK UNIVERSITY SCHOOL OF LAW STATEMENT OF KEMBA SMITH PRADIA Ms. Pradia. Good morning, committee members. I am humbled to have this opportunity to testify before you today. Despite me being already committed to speak at North Carolina Central University later this evening, it was important for me to be here. My prayer today is that our testimonies will go beyond these walls, and move the hearts of Congress and our President. Almost 20 years ago, President Clinton changed my life forever by freeing me from an excessive prison sentence. It was a U.S. President that had the power to change my fate. It was an act of mercy. In 1994, I was sentenced to 24-1/2 years in Federal prison, even though I had no prior record. The prosecutor said I didn't handle, use, or sell the drugs that were involved, and I didn't commit a violent crime. Ultimately, I was a college student and girlfriend of a drug dealer who was abusive. I turned myself in to the authorities 7 months pregnant with my first child and was denied bond. But in the 1990s, there was no room to see me as a human being. I was seen as a statistic, another single young black mother who was involved with drugs. I was seen as a disposable, like my life had no value. The judge sentenced me to 24 years and 6 months. At 23 years old, I was sentenced to more time than I had been living on this earth, and I wasn't supposed to be released until my son was a grown man. There were several factors that led to me receiving executive clemency: First, the media. In particular, black media took interest in reporting my story. There was a magazine called Emerge Magazine that did an extensive article about my story which led to the NAACP Legal Defense Fund, LDF, taking on my case pro bono. I had two parents who were deeply dedicated and sacrificed a great deal to support me, not only by caring for my son, making sure I had money on my books, and prison visits, but my dad is actually here in the room. They traveled across the country advocating for my freedom, and educating the public about drug policy and sentencing. There were individuals in national organizations who organized rallies and writing campaigns because they thought what happened to me was unjust. In the 1990s, black women were one of the fastest-growing populations going to prison, so Elaine Jones, Director of LDF, enlisted black women's organizations in which she was a member to invest in advocating for my release, organizations such as Delta Sigma Theta Sorority, Incorporated, Links, Incorporated, and the National Council of Negro Women. It became bigger than just advocating for me. They were hoping to set a precedent for others to receive their freedom. There were even congressional Members who were on this very committee such as my dad told me how he met with Congressman John Conyers, who was chair at the time, but there were Congressman Bobby Scott and Maxine Waters who were champions in advocating for my release. The criminal justice reform movement wasn't what it is today. And after serving 6\1/2\ years, it was a modern day miracle for President Clinton to grant me executive clemency in December 2000. It was said that he was trying to do a redemptive act during the 25th hour of his presidency to write the wrongs of him signing the crime bill that caused the big prison boom. I, like Alice Johnson, came out singing praises to the President, even though there was some people in the community who felt it extremely different than me. A few days after my release, my mother saw me tearing up, and she asked me what was wrong. And I told her that I was having a hard time dealing with the fact that I left so many men and women behind bars that deserve to be home too. One of those women was Michelle West, who is still serving a double life sentence, and has been incarcerated for 27 years. On the day that I was released, I spent all day in the visitation room with my attorneys from LDF. As hours passed by, and no prison staff told us anything, I had begun to think it, my commutation, wasn't going to happen. After my visit, and going through the squat and cough, Michelle was the first person waiting for me outside the door as I walked back on the yard to tell me, Kemba, you are going home. They said your name on CNN. I remember vividly to this day how the prison was on lockdown, and the women were yelling me well wishes as I walked out of my unit to exit the prison yard. Even though that was a surreal moment for me, the only thing I can remember is the overwhelming feeling of heartache that took over me. That heartache and survivors guilt motivated me to speak about my experience, and I became a national and international public speaker. My lived experience has led my role as a domestic violence survivor, national advocate, and consultant in the criminal justice arena for over 20 years, working with women and youth, national organizations, universities, and corporations and the media. I held the position of State Advocacy Campaign Director with the ACLU of Virginia, worked with senior White House and the United Nations in Geneva, Switzerland, members of Congress, and I have led trainings for Federal and State probation organizations across the country. In 2019, I was appointed as a member of the Virginia Parole Board by Governor Ralph Northam. Today, I am not here just representing myself, I am representing the formerly and currently incarcerated community. There are some of us that have been in this movement for years. In 2016, President Obama invited a group of us that had received executive clemency from Presidents to the White House. We had the opportunity to discuss our reentry back into society and our lives now. It was said that it was an historic day because that had never been done before. President Obama commuted more sentences than any President on record, which was over 1,700. Of those, were 568 incarcerated individuals with life sentences who applied. We are grateful for what President Obama did, but we were also disappointed that he wasn't able to do more, because there were over 36,000 petitions submitted. We were disappointed that Alice Johnson, Michelle West, and William Underwood and other sentences had not been commuted as well. When President Trump came into office, we assumed that there would be no progress with criminal justice reform as it related to drug policy and sentencing, especially with Jeff Sessions being Attorney General. We were wrong. To my surprise, I was invited to the White House to hear President Trump introduce the First Step Act, and it evolved to include language in which Congress was able to enact, and there have been many beneficiaries of this legislation who are singing praises to this administration. We are all supportive and happy for those that are being released. My criticism, ever since President Trump has been in office, is what about the clemency initiative, and the thousands of people that are still waiting on a response. President Trump has only commuted 10 individual sentences since being in office. I was an advocate for Alice Johnson. I am grateful that she has a champion like Kim Kardashian who has access to the President to advocate for her release. But there are others who are deserving of this act of mercy, and the President is their last resort. There are shortcomings of the Federal clemency process. Even with my own situation, I became the poster child for sentencing, drug sentencing gone wrong, but I know I received relief because I had the privilege of my background, of being a college student with two middle class parents who were advocating for my release who had support from organizations that typically in the past had conservative views when it came to criminal justice. Not everyone has this exposure and access that I had, but they were just as deserving of this presidential act of mercy. Mr. Cohen. You have to wrap up. Ms. Pradia. Just real--I will wrap up. Last year, I was invited to the White House for a criminal justice reform strategy session, discussing next steps of clemency. As I sat at the table, I noticed that there was not a representative from any of the national organizations that have typically been involved in having these conversations. I participated, even though I must admit I was uncomfortable. I leaned into knowing that Van Jones and Topeka Sam sat at these tables before me in order to generate movement on our issues. Needless to say, after my participation, I heard nothing further. As this administration moves forward with the new clemency initiative, and putting the White House more directly in control of the process than the Justice Department, I would strongly suggest you include organizations that have been working on the issues for decades, and have a diverse group of individuals from attorneys, researchers, social workers, people who are in the media who have received commutations. Most importantly, I challenge this administration to break President Obama's record with commutations. Some are critical of how this power is being used to release President Trump's allies. If I am brutally honest, I don't care about them as long as you are releasing my people out of prison who deserve the same opportunity that I have been given, who are no threat to public safety, which could even mean few violent offenders. To this judicial committee and Congress, I urge you to be advocates like Virginia Congressman Bobby Scott, Maxine Waters. I am sure you hear from plenty of family members who live in your district. Please bring these compelling stories of individuals who deserve second chances to this administration's attention. Thank you. [The statement of Ms. Pradia follows:] [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] Mr. Cohen. Thank you. And I appreciate your history and your testimony, but you were 5 minutes over. And the yellow light means you have got one left minute, and the red light means your time is up. We have got to go have votes soon, and we want everybody to have a chance. Our next witness is Cynthia Roseberry. Ms. Roseberry is Deputy Director of National Policy Advocacy for the ACLU. Prior to joining that organization, she was a member of the Charles Colson Task Force, a bipartisan task force charged with examining overincarceration and making recommendations to the President, Congress, and the Attorney General on reducing prison populations. In 2014, she served as manager of the Clemency Project, a national pro bono effort to provide assistance to clemency applicants. She has worked as a Federal defender in the Middle District of Georgia. She has a J. D. From Georgia State University, a B.S. From Wilberforce University. You are recognized. STATEMENT OF CYNTHIA ROSEBERRY Ms. Roseberry. Mr. Chairman, Ranking Member Johnson, and members of the committee, thank you for the opportunity to appear before you today. Thousands of people languish in Federal prison, subject to draconian and unjust sentences because of the abolition of parole and failure to retroactively apply reforms, like the sentencing provision of the First Step Act. Long after they have served substantial time in prison, been rehabilitated, and are ready to return to their communities, tens of thousands of people remain incarcerated because of the system's failure to release them. And although it should not be the lone response to overincarceration, the Article II clemency power is a useful tool to begin to immediately correct the horror of unnecessarily long sentences. Clemency power belongs to the executive who has the broad discretion to use it, but it is precisely because this power is invested in this way that there is a heightened need for the appearance and substance of fairness and justice. This is the foundation of our faith and our democracy. This power must not be exercised with people in the same manner as it is used for turkeys in November, sparingly and reserved for a lucky few who are called to the attention of the executive because of connection, financial status, or celebrity. Thousands should have access to clemency. The average person should be assured that their petition for clemency will not require more than evidence of the need for mercy under the circumstances. Without this assurance, the least I among us, and specifically those against whom the war on drugs and overpolicing are aimed, suffer under a caste system. They are required to watch from the cages in which they have been placed as others, who have been incarcerated for the same acts, are released. During Clemency Project 2014, more than 36,000 applicants for clemency appeared. Additionally, thousands of family members called, emailed, sent postal mail, and personally appeared in our office in hopes that their loved ones would be lucky enough to be granted clemency. One mother called me every week to pray for the release of those suffering under long sentences. I was contacted by judges, probation officers, defense lawyers, law professors, and some prosecutors who sought to bring our attention to someone languishing in prison with the hope for their release. The process was saturated with desperation. Sadly, many of the petitions were denied while many more remain unanswered, leaving thousands of petitioners and interested parties wondering where is the justice? Where is the fairness in the secretive deliberations on applications for liberty? How can we be assured of fairness and justice? The clemency process must be completely independent of the system employed to incarcerate the millions of people. An independent commission should be established with representatives from all stages of the criminal legal system, including those who were formerly incarcerated, prosecutors, defense lawyers, corrections experts, and members of the public. Independence would ensure that one actor could not put a thumb on the scales of justice, as is the case in our current system where the very same officers in the Department of Justice who prosecuted the case have the power. The commission should have the necessary resources to review the inevitable deluge of petitions from the masses. The commission would promulgate clear and equitable criteria for release. Applicants would have notice of the evidence necessary to successfully submit a petition. Newly incarcerated persons would have an incentive to immediately work to achieve rehabilitation, and the general public would understand and believe that the system is just and broadly available, and not reserved for privileged few under a secret process. Further, members of society would have faith that those who return have been rehabilitated and are prepared to safely reenter society, and society would be prepared to welcome them. Paramount among the criteria would be the consideration of anyone affected by the failure to retroactively apply sentencing reform. If we, the people, determine that we are no longer willing to incarcerate certain acts, then those who commit those acts and are incarcerated should go free in order for equal justice under the law to have meaning. Categorical clemency could be granted, for example, to those serving sentences subject to enhancements that no longer apply. Additionally, those serving long sentences suffering under a trial penalty, for exercising their constitutional right to trial, and those political prisoners for the shameful COINTELCO prosecutions. Also, there is a mechanism for compassionate release, but it is underutilized. Clemency could be used to clear this backlog. It is my hope that you remove the scourge of mass incarceration from our justice system--I would ask for just 2 more seconds. The scourge that informs one in three black boys born today that they can expect to be incarcerated, the scourge that prevents $80 billion from being spent on their education, because it is being spent to incarcerate them. When historians look back on us, and what we did during our watch, let them record that we were enlightened. May they extol the virtual of our quest for equal justice for all, and may they marvel at the expediency with which it was achieved through an independent, transparent, fair, and just process. I am personally grateful to you for taking an interest in the Nation's most urgent issues, for there is nothing more urgent than freedom. Thank you. [The statement of Ms. Roseberry follows:] [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] Mr. Cohen. Thank you, Ms. Roseberry. We are joined by one of the most distinguished members of our committee, Mr. Ben Cline, an outstanding Congressman and a good family man, I presume. I now recognize the next witness as Mr. Mark Osler. Mr. Osler is a Professor and Robert and Marion Short Distinguished Chair in Law at the University of St. Thomas School of Law, advocates for sentencing in clemency policies rooted in the principle of human dignity, a former Federal prosecutor that argued the case of Spear versus United States before the Supreme Court, which held in that case that judges could categorically reject the 100-to-1 mandatory ratio in crack and powder cocaine sentences for Federal sentencing guidelines. In 2015, he co-founded with our fellow witness, Rachel Barkow, The Clemency Resource Center, a 1-year, pop-up law firm that prepared clemency petitions. Thank you for that, sir. He received his J. D. From Yale and his B. A. From William and Mary. minutes. Professor Osler, you are recognized for 5 minutes STATEMENT OF MARK OSLER Mr. Osler. Mr. Chairman, members of the committee, thank you for this opportunity to be heard. In the course of doing the work that you just mentioned, Mr. Chairman, one of our clients was a man named Robert Shipp, and you were kind enough to write a letter of support, twice, in fact, on his behalf. One of the things you recognized in that letter was the unfairness of Mr. Shipp's story, that he was someone who turned to dealing drugs after the murder of his brother. The murderer of his brother served a 10-year sentence. Mr. Shipp was doing life for the nonviolent narcotics crime. Unfortunately, he was denied clemency. But we know these stories as all of us on this panel have gotten to do. We care about the institution of clemency, and I want to spend a little time talking about how that institution is framed right now. The process to evaluate and make recommendations on petitions to the President, I think of it as a pipe. Water goes through the pipe, and there is seven valves, and each one of those valves is spring-loaded to be shut. And somebody has to turn each valve open as the water goes through. And those seven valves are first, it is the staff of the pardon attorney, second, it is the pardon attorney, staff at the Deputy Attorney General, then the Deputy Attorney General, then the staff at the White House Counsel, then the White House Counsel, and then the President, and that is sequential. It is a terrible system. No one in business would create a decision mechanism like that. It grew up organically. It wasn't intentional. No one thought about it very hard. It seems just people wanted to review the cases that were coming through and took that on. What we saw was pretty telling under the Obama administration. There, the President was deeply committed to making clemency work. And there were people, Ms. Roseberry to my right, who played a huge role in that program and worked very hard, and what happened, much of it was due to her efforts, and also to the efforts of advocates like Nkechi Taifa who is here today, who advocated for clients, learned their stories. But in the end, even though Eric Holder, the Attorney General, said we would get 10,000 people out, ended up with 1,700. 1,715. Don't get me wrong. It is a wonderful thing for those people, but it is a tragedy about the people like Robert Shipp, who did not receive clemency. And one thing, too, about that, that is telling about this process is that when things started to flow through that pipe, when President Obama was able to get it to work at the end, the Inspector General report on that project tells us that what they did was skip the Deputy Attorney General. They bypassed that valve, basically, for the noes which allowed the Deputy Attorney General to focus on the yeses, and that was part of what made it work. I would like to return briefly to Robert Shipp. As I said, he was denied clemency under President Obama, and I was floored by that decision. He was imprisoned at Sandstone Prison in Minnesota, about an hour north of where I live and teach, and I felt compelled to drive up and tell him in person, and talk to him about his denial, and I did that. And I sat in the cell, the visiting attorney area. And that was a hard day. And on the drive back, I determined that we had to come up with a system that works, one that doesn't have that many valves that are spring-loaded shut. Mr. Johnson, you quoted Micah 6:8. As a pastor, that is very meaningful to me. When I taught at Baylor Law School, I walked into the school every day under those words. And you know, the thing about that, as I think about it, and I have for a long time, is that justice and mercy are intention if ``justice'' means we treat everyone the same, and ``mercy'' means that we give some people a break, that part of our project is to resolve those two poles. And I think the answer, in part, is the third part of that passage. It is humility, that we have to humble ourselves to know those stories, to care about them, to agree that mercy is good. We need the humility to see the change in others, to know the limits of our judgments, and to see the human dignity in all people, including those who are incarcerated. Thank you. [The statement of Mr. Osler follows:] [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] Mr. Cohen. Thank you, Professor. Our next witness is Rachel Barkow, Vice Dean and Segal Family Professor of Regulatory Law and Policy and Faculty Director, Center on the Administration of Criminal Law at NYU. She has taught at NYU since 2002, where she teaches courses in criminal law, common law, and administrative law. From June 2013 to 2019 of January, she served as a member of the U.S. Sentencing Commission. Among her various areas of scholarly focus the role of mercy and criminal in the criminal justice system. In 2015, she co-authored, together with Mr. Osler, Professor Osler, a University of Chicago Law Review article arguing for the independent clemency commission outside the Department of Justice. She received her J.D. From Harvard, magna cum laude. She served as editor of the Harvard Law Review, B.A. with honors from Northwestern, served as law clerk for the Honorable Lawrence Silverman of the U.S. Court of Appeals for the D.C. circuit, and for the Honorable Anton Scalia, Associate Justice of the Supreme Court of the United States. Professor, you are recognized for 5 minutes. STATEMENT OF RACHEL E. BARKOW Ms. Barkow. Thank you very much, Mr. Chairman, Ranking Member Johnson, and members of the subcommittee, thank you for inviting me today to testify. There were two problems with Federal clemency today. The first, and, by far, the biggest concern, is that it is not being used enough. The second is that of the few grants that are being given, a large proportion have gone to presidential supporters and those with connections to him. So, the good news is that Congress has the power to address the more pressing concern of inadequate numbers of clemency grants, and I urge you to do so. Clemency, as you have heard many of us talk about, is a critical avenue for achieving justice and proportional sentencing in the Federal system because Congress abolished parole in 1984, and that was previously the major avenue for getting sentence reductions. Pardons are also essential, because there is no other mechanism at the Federal level for an individual to seek relief from the collateral consequences of convictions. And now, unfortunately, it is difficult to get either commutations or pardons under the current application process, because the Department of Justice, the same agency that brought the prosecution in the first place, plays a gatekeeping role and it is institutionally biased against clemency, because it is reviewing its own prior decisions. So I don't think you need to look any further than the output of DOJ'S process to see this bias at play. According to DOJ's own clemency statistics, there have been more than 7,700 petitions filed since President Trump took office, and only 24 grants. So that is a rate of 0.3 percent. And this is part of a pattern of low grant rates in recent decades, because of DOJ resistance to clemency. During the administrations of Bill Clinton and George W. Bush, the Department received more than 14,000 petitions for commutations, but the Department only recommended that 13 of them should be granted. Now, President Obama had to create a designated initiative with specific criteria to try to spark more positive recommendations from the Department. And even with that effort, he fell short of his goals precisely because it was administered by DOJ. Only 3.4 percent of the people who met President Obama's stated criteria received clemency, and thousands were left behind. And I do think the case of Alice Marie Johnson illustrates the flaws with keeping DOJ as a gatekeeper. Johnson was a first-time offender who got a life sentence for her role in a drug trafficking conspiracy. She was a model prisoner, helped others, accepted full responsibility for what she had done. And after serving almost two decades, she asked President Obama for clemency. But she was rejected without her application ever reaching President Obama's desk. And that is because DOJ thought her petition should be denied. Now, she came to President Trump's attention not because DOJ had a change of heart, but because her case got the attention of Kim Kardashian, who then made a personal plea to the President. There are thousands of cases like Alice Marie Johnson out there, but they are waiting in a line of 14,000 petitions, where the end result is most likely going to be the Department of Justice recommending no. So Congress can't force the President to grant those petitions through clemency, but you can create mechanisms of release that do a good job. Congress can create second-look mechanisms such as parole or an opportunity for resentencing by a judge, and that can serve the same function as commutations. Congress can also help prevent excessive sentencing from occurring in the first place, by eliminating mandatory minimums and giving judges more flexibility to have the facts fit the actual case before him or her. Additionally, Congress, when it recognizes that its sentencing laws have gone too far, as it did with the First Step Act, can, and I believe should, provide retroactive relief for the people who were still serving sentences under the old laws that Congress has recognized should be overturned. Congress can also address the low rate of pardons by enacting legislation that allows individuals to expunge Federal convictions and restore their rights. And, again, reduce the need for such relief in the first place by removing some of those oppressive collateral consequences. But, in addition to passing legislation along these lines that could serve as a substitute for clemency, Congress can also improve the operation of clemency itself, by providing the necessary resources to enable the President to use the power more effectively. Several recent Presidents of both parties have indicated frustration with clemency being run out of the Department of Justice, as have some of the candidates who are currently running for President, and they want to switch to a model that relies on an advisory board that exists outside of DOJ. And President Trump appears to be transitioning to such a model as well. Congress can and should provide funding to support this change so that this board has the resources it needs to do the job effectively. The one thing that Congress can't do is tell the President how to exercise the clemency power, which is why solving the second problem of grants given to supporters, or cronies, isn't subject to a legislative fix. The main mechanism for checking a President who does that, who gives grants and/or exercises the discretion in ways that people might find disserving, is to elect a new President with better judgment and better values. So thank you, again, for allowing me to testify and share my thoughts on clemency. And I would be happy to answer any questions that you have. [The statement of Ms. Barkow follows:] [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] Mr. Cohen. Thank you very much. We are now in the period where we ask questions of 5 minutes of each. And I will start with my 5-minute period. And, first, I want you to reiterate, Professor Barkow, the suggestions you had. Because the reality is, we can do oversight. And that is part of what this hearing is about is oversight. But we can't stop or change the President's pardon power, unless he tries to pardon himself, and that would go to court. What were your suggestions of legislation that could serve the same purposes? Ms. Barkow. Thank you for the opportunity to talk about them further. So, I think on the--so commutations reduce sentences that are excessive. That is the Presidential power. So you could create other mechanisms that do the same thing, just not with the President. So we used to have parole in our system, and that was the main mechanism by which people got sentencing reductions. If you look at the charts on when clemency starts to fall initially, it is when we have the advent of parole. So bringing some form of parole back, or a second look by a judge that allow you---- Mr. Cohen. When was parole eliminated? Ms. Barkow. 1984's legislation eliminated it. So anyone sentenced after November 1st, 1987, in the Federal system cannot get parole. Chairman Nadler. Excuse me, chairman, may I have moment? Mr. Cohen. Yes. Chairman Nadler. When you are referring to the parole elimination, you are referring to the institution of determinative sentencing, right? Ms. Barkow. Correct. It was part of the Sentencing Reform Act package of eliminating parole and creating a sentencing commission. And people testified before Congress at that time saying, now that you have eliminated parole, it is going to put a lot of weight on clemency. Because we need to have an avenue for commutations. And that turned out to be particularly true because there were so many new mandatory minimums that came into play at the same time, and then continued to come. So you have this, lots of disproportionate sentences that were mandatory, that the judge had no power to do otherwise, and no back-end mechanism to correct them. So reinstituting some form of parole or a second look by a judge after a period of time could do the same thing as a commutation. It would just be giving it to a different actor in the system. Mr. Cohen. Do you know if that was discussed as part of the First Step Act? Ms. Barkow. I do know there is legislation that is being considered that others may know more about--the second look, which would allow for more back-end review. And I also know that the part of the First Step Act that allows people to earn credits as opposed to good-time credits, participate in programming and be eligible for some reductions, you know, that is one other way that was supposed to expand the opportunity. And then also, removing the requirement that DOJ had to file your petition for compassionate release. You know, that also opened up one other opportunity. But that is for people who have terminal illnesses and the like. For your kind of core group of folks who have excessively long sentences, I do think there needs to be more opportunities for them. And I do think having a second look in the system would do it. And it would take some of the pressure off the President. Mr. Cohen. Are there limits to the Compassionate Release Act, as far as number of years somebody would have had to have served? Ms. Barkow. No, you can--a person can file their petition now directly with a judge. You know, can ask obviously to go through the Bureau of Prisons process, but does have the ability now to file with a judge and explain why they merit compassionate release. So, for example, if they have a terminal illness, if they are a caregiver for a child, they are the only caregiver that is left that could take care of a family member, because you know someone has passed away and the like. I do know that people are filing petitions for extraordinary sentencing relief under that provision, arguing that they can do it in the case-- -- Mr. Cohen. Do you have any recommendations of changes in the compassionate release to make it more effective? Ms. Barkow. I do think it should be explicitly made available to people who are serving excessively long sentences and can demonstrate good behavior while they have been incarcerated. I think that is something that could be more explicitly made clear, because right now, the folks who are trying to do that, you know, it will remain a question whether judges will accept those petitions. Mr. Cohen. How do you know that? Are you suggesting putting out a public paper to the prisoners? Ms. Barkow. Well, I think that--so there could be legislative changes that may clear who is eligible and who Congress has in mind should be asking for sentencing relief. I do think--and I will let some of the other advocates who work there more directly with people who are currently incarcerated--I do think word gets around about what opportunities are available in terms of opportunities, but not everybody has access to counsel to help them and the resources they need to---- Mr. Cohen. Ms. Roseberry, do you have any suggestions on things we can do legislatively to improve people's opportunities to get their freedom? Ms. Roseberry. Yes, sir. Thank you for that question. I agree that the Second Chance Act, passing the Second Chance Act will be helpful to give folks a second look. We recommended that on the Culson task force. Of course, getting rid of mandatory minimums stops the process on the first end. Fully funding the First Step Act so that people can avail themselves of that. I think as of July of 2019, only about 3,000 people have been able to be released through that Act. There needs to be programming so that people can come out. I would just also add that if we are concerned about safety, that we they about the fact that if prisons are overcrowded, then the folks who work in corrections are unsafe as well. That is one of the things that we found in the Culson task force. So there is a need for mercy for them as well to have folks come out. Mr. Cohen. Thank you. I recognize Mr. Johnson for 5 minutes. Mr. Johnson. Thank you, Mr. Chairman. And thank you all for your thoughtful comments and contributions. And there is a lot of competing events going on in the Hill right now. You know how this works. The record of this is very important. And your writings are important. What you said just a moment ago is exactly right. We hear from those who work within the prisons about the underfunding crisis, really, that they have. So they have jeopardized the safety of those who are in charge in these facilities. Because that is a whole other issue. Professor Osler, I really appreciated your frank discussion and our mutual reference to Micah 6:8, in how there is this tension between acting justly and love and mercy, and how it is resolved really with that third phrase of humility. And that is a lot to unpack, and something we ought to consider. But can you describe, just real quickly, why you think clemency grants can be consistent with public safety? Because I think there is a lot of misconception out there about that. Mr. Osler. Yes, thank you. Thank you for that question. And yes, absolutely. One thing that clemency allows for is the capacity for people to change. That someone who at 18, 19, 20, was committing a felony, even a violent felony, is going to be very different later in their life. And clemency gives us the opportunity to hold them accountable, to monitor that change, and to recognize it, and to free them what they are ready to be a productive member of society. And that is something that clemency is especially well-suited for is considering those individual circumstances. One thing that doesn't work so well right now is that mostly we reach back for advice to the people who are involved at the time of the criminality--back to the prosecutor, back to the sentencing judge. It is always appropriate to go back to the victim and include them. Although in Federal crimes, very often, there is not a victim. But I think we need, as well, to reach out to those who currently know that person as they are incarcerated. Too often, we think of people who are incarcerated as their life ended when the prison door closed. But they do have a life going forward, as many of us on that panel know very well. And the people who. know them in the prison who work with them are able to give us a good view of what they are now. Mr. Johnson. So you are talking about people--the employees within the prison. I mean those who are charged with guarding the inmates, so to speak? Mr. Osler. It will be corrections officers; it will be wardens; but it will also be people who provide educational opportunities, who do ministry within the prison as well. Mr. Johnson. So one of the concerns, of course, is about the risk associated with early release. There is always exceptions: Someone gets out who shouldn't. Mistakes are made. How do you--how can we reduce those risks? Mr. Osler. I think one thing that we can do to reduce those risks is to do a better job of tracking the success of the commutations that have already been granted. That is one problem with the system that we have, is that there is no one who is in charge of data collection and analysis. That is something that Professor Barkow has done a lot of work on. That if we had a clemency board, one that was able to perform these other functions, and also be able to track recidivism by people who had received commutations and be able to give us a better idea of who is successful and who is not. Mr. Johnson. We heard a lot this morning, several references to Alice Marie Johnson's case--and I am not an expert in the background of it. But can you summarize why it took so long for her to receive clemency? Are there lessons to be learned there? Mr. Osler. There are certainly lessons to be learned, and one of them is about transparency. That is the thing about Alice Marie Johnson being denied those three times is that we don't really know why. That we don't have a sense of that process. Which for those of us that are lawyers, it is very frustrating. Where you used to be able to have a back and forth, and that is not a part of this process. And so, I think one of the takeaways is that we don't know, and that is wrong. Because that way we don't know how to advocate for people going forward. We don't know what to avoid, what kind of cases are--shouldn't be taken forward. The other thing is that although we don't know this, I think many people believe that there was resistance from the DOJ in granting her petition. And, again, that goes back to the problems that many of us have already talked about in reference to clemency as it works today. Mr. Johnson. And that would have been the DOJ under perhaps several previous administrations, right? Mr. Osler. Yeah, that is correct. And this is something that, again, Professor Barkow and I wrote an article about this, about the role of the DOJ. And the one thing that is remarkable is it is pretty consistent across administration's resistance to reform and correcting problems that we find from that department. Mr. Johnson. Because no one wants to be perceived as soft on crime, right? Mr. Osler. That is correct. And also the people who make the decisions and work on policy--for example, the deputy attorney general, in this circumstance, that is who the U.S. attorneys report directly to. And they have to maintain a good relationship with those people, and they avoid making decisions that would imperil that relationship. Mr. Johnson. Thank you. I yield back. Mr. Cohen. Thank you, Mr. Johnson. Mr. Nadler. Chairman Nadler. Thank you, Mr. Chairman. The witnesses have referred to a number of things that we have dealt with in the last few years, mistakes that were made by Congress back in 1986, instituting determinative sentencing. The war on drugs was a terrible mistake. I don't know if you have referred to it, but the Crime Bill of 1994, which is a terrible mistake, all of which led to mass incarceration. We have tried--I should tell you, because someone raised this--that we tried to get interactive application, new sentencing guidelines into the First Step Act last year, or 2 years ago. So these are issues that we have been dealing with. My problem, and I--before all of this stuff, I was successful in getting someone a pardon the same day that you had, the last day of the Clinton administration. A 22-year-old woman who had been sentenced to 68 years in jail and served, at that point, 19 or 20 years, and it was--it was a terrible miscarriage of justice. But it would not have been solved if I, as a Congressman, did not happen to hear about it. And I was able to work for 3 or 4 years and got it done. Now, undoubtedly, you know of Ms. Smith Pradia's case, we know about the Marie Johnson case, there are undoubtedly thousands of cases we don't know about. And, yes, the advisory committee that was set up to advise the President is probably prejudiced because it has got the Department of Justice in it. We should take the Department of Justice out of it and set it up more independently. But how do you guarantee, how could we institutionally improve the likelihood that a President, any President, President Smith who gets elected next year, is going to exercise better judgment, going to grant more pardons, more commutations? What can we, as an institution, do to--aside from hope that the next President is a good guy and has good judgment and so forth, what can we do as an institution to maximize the odds that the pardon power would be used decently? Mr. Osler. I have a couple of thoughts on that, though, I will put forward quickly. And one is that encouraging a process that creates regularity of consideration is something where right now, Presidents for the, you know, past two decades, three decades, clemency comes up when it comes up. There is no regular meeting with someone who is making those advisory decisions. The second thing is that we don't talk about it during elections. That we don't--the answer to clemency problems is politics. And yet, we are in the middle of a Presidential election season, and during the Democratic primaries, nobody talks about clemency. I think Amy Klobuchar did once. Where does Joe Biden, for example, stand on clemency? I don't know. But we need to ask that question when we can, when it matters. Chairman Nadler. And the odds are he doesn't know because he probably hasn't thought about it like anybody else. Mr. Osler. Right. And we need to make him think about it. And you all have a platform to do that. And I hope that you will use that political platform to press our political leaders, be they Democratic or Republican, to articulate, before they take office what it is that they would do with clemency. Ms. Pradia. And I would like to add that with my particular situation, the Department of Justice did not want me to be released. And the attorneys from LDF didn't want me to even speak publicly, because they knew that the Department of Justice was upset, I was on probation for 5 years, they were worried about my probation officer violating me. But I do want to highlight that I do believe the Department of Justice needs to be eliminated from the process. And recently there was a Virginia Supreme Court judge that told me, the government should not be concerned with being right. Instead, it should be concerned with making sure justice has been served. And, you know, this was part of my statement. I thank God that President Clinton didn't adhere to the Department of Justice's opinion that I needed to serve my full sentence. There was a President that felt as if justice had been served. There are many others like me who are waiting on their opportunity to live life that would overshadow who they used to be if given the opportunity. Like Alice Johnson and I, they would be an asset to our great Nation. And I apologize for going over earlier as well. Thank you. Chairman Nadler. I yield back. Mr. Cohen. We are going to recognize Mr. Armstrong for 5 minutes. And then, I think, we should probably break for votes, and then we will come--then we will come back. Mr. Armstrong. Could you do Mr. Reschenthaler first? Mr. Cohen. I am just taking instructions from the Republicans, whoever you all want to yield. All right. Mr. Reschenthaler, you are on. Mr. Reschenthaler. Thank you, Mr. Chairman. And I yield my good friend from North Dakota. Mr. Armstrong. Thank you. One thing we can do--let's be honest. The biggest problem with clemency isn't that it is an inefficient system, because it has been an inefficient system regardless of who the government is. The biggest problem with clemency is that we have too many people that need it. This started a long time ago. And you can go to Richard Nixon and the war on drugs. You can go to the sentencing guidelines and the enhancement for crack cocaine, which absolutely, disproportionately, affected African Americans in cities. You can go to States like mine who end up in Federal court off of Native American reservations in an incredibly period of time. So what do we do? We try to retroactively apply sentencing guideline reform again. That is how you do it. Because you diffuse it between 535 Members of Congress instead of one person sitting in the executive branch. Because nobody has ever lost an election being tough on crime. And instead of having hearings where we are taking pot shots at the ranking member of the committee and instead of taking pot shots at the ranking member of the full committee, we should have hearings like this every single day of the week. We should be talking about it. And the reason I know this is because I have done it. You didn't have to worry about minimum mandatory sentences. You blew so far past the minimum mandatory sentence because you had a boyfriend who was dealing drugs. And I assuming somewhere, somewhere along the line in that conspiracy, somebody had a gun, so they made it violent. Which comes back when you look at this. One of the first things we can do--and I know U.S. attorneys are great people. I supported the last Democratic U.S. appointee in North Dakota, and I supported the last two Republican ones. But I don't think anybody ever intended prosecutors to be able to determine sentences, and that is what happened, because how they charge something, how we draconianly enhance drug weights in historical methamphetamine or drug conspiracies without ever having a drug in the courtroom, how we put those drugs on a low-level member of that conspiracy, because they are using minors amounts of drugs to feed their addiction, and we treat them just like the leader of a drug cartel, that is how we end up in this situation. We did sentencing--Federal sentencing guideline reform. Have we checked to see what States that have mirrored their sentencing guidelines are starting to reform theirs as well? Minnesota is a neighboring state. I used to practice law in Minnesota. If anybody thinks Minnesota is a liberal State, you get convicted of a crime there. After the first step back, their state sentencing guidelines are worse than the Federal ones. Do we know if they are--do they know if they are taking it forward? And there are States that are doing this. Texas has done criminal justice reform. North Dakota has done criminal justice reform. How are we providing services? Why aren't we not utilizing--the one thing the Federal Government does really, really well is a pretrial release program. It is actually one of the greatest ironies in anything. It is nonconfrontational. They get you into life choices. They get you into addiction treatment. They do all of those things. Then you show up at court and you get a 10-year minimum mandatory sentence. I don't know how good your pretrial release program is. If you are going to prison for 8.5 years, you are not really going to remember anything about it. So instead of pointing fingers at the executive branch when we are doing this, how do we solve it? This is hard, hard, hard work. And the reason it is hard work is if you make 1,000 right decisions and one wrong decision and that happens to be in your district, you are going to penalized politically for it, every one of us. We run every 2 years. So, you have to stand up and be counted, and you have to do it. And you have to do it in a way that actually effectuates change. Are there ways to do it. One, you go back and you concentrate on nonviolent crimes. But you define nonviolent crimes not in how they were prosecuted in 1998, you look at them. If there was a gun associated in a drug conspiracy, but it was associated 17 levels, 17 levels removed from that particular sentence, that is not a violent crime. It is simply not. And so, instead of sitting here and blaming people and doing those--and I am supporting clemency. I am on the letters for clemency. I will advocate for people all the time. But let's recognize the fundamental problem. The fundamental problem is we started down this path 48 to 50 years ago, and have allowed it to snowball ever since. And let's also recognize that regardless of how anybody feels about anybody, the single biggest piece of criminal justice reform that has ever come out of Washington, D.C. was the First Step Act. But that is only the first step. And then we should also recognize the fact that the vast 95 percent of this happens at the local and state level. County jails are full of people serving pretrial. So let's utilize technology. Let's invest in those things. Let's do GPS tracking. Let's do SCRAM bracelets. Let's work at those things. Because the vast majority of people, whoever get sentenced in the Federal court system, it ain't their first trip to the rodeo. They have been in misdemeanor cases. They have been in county jail. They have been in State jail. They have been through all of these things. So let's utilize the resources to attack this before they get it. Then, finally, we need to start addressing the fact that we are felonizing nonviolent drug offenders from the age of 18 to 22. Because you talk about collateral consequences, but here is what I can tell you: If you have one felony, the chances of you having another one go up exponentially, because we have created perverse incentives for every government program we have to avoid felons like the plague. So if we want to deal with this, we can deal with it. But I don't think throwing political pot shots at each other is the right way. And with that, I yield back. Mr. Cohen. Thank you. With the exception of the suggestions of political pot shots, Mr. Armstrong did a splendid job. We will now recess until after the votes. [Recess.] Mr. Cohen. We are back, and Mr. Raskin will be first to ask questions. It is 5 minutes, and he is recognized. Mr. Raskin. Thank you very much, Mr. Chairman. Let's see, I see Ms. Smith is not with us. Is she coming back? Mr. Cohen. No, she has left the building. Mr. Raskin. Oh, okay. All right. So Ms. Roseberry, let me start with you. Thank you very much for your excellent testimony. Do we need some kind of structural change in the way that pardons are being issued? And let me ask you this specifically, is there a problem in the pardon attorney's office, or is it just that the President is disregarding the pardon attorney's office? Ms. Roseberry. Sir, you are asking--thank you for your question. You are, of course, asking a lifelong criminal defense lawyer. There is a problem in the pardon attorney's office. The culture there, of course, is one of prosecution. And so, when you have a system that looks back to the same system that created the problem to solve the problem without interjecting anything independent, you have the same problem. Mr. Raskin. So the President is the one under Article II is given the power to render pardons. And so, certainly in this administration, probably in any administration, they are going to view it as an executive function. Do you think that we should set up an advisory congressional panel on pardons that is bipartisan in nature that operates like the Joint Economic Committee or the House Ethics Committee? Ms. Roseberry. Absolutely. You have that oversight power. And to be guided by independent and transparent objectives would be much better than having it lie in the agency that did it. And in Maryland, when Governor Ehrlich pardoned so many people between 2003 and 2009---- Mr. Raskin. Yeah. Ms. Roseberry [continuing]. It was a seamless process that pulled on many experts in the field. And that is what I would suggest for our Federal system. Mr. Raskin. Professor Barkow, let me ask you: Do you agree it would make sense for us to set up some kind of independent advisory congressional commission that would look at big cases and bring them to the attention of the President? Ms. Barkow. I don't think that is actually the solution that this problem needs. I think that creating a review by another political body, I think, is going to face some of those same political pressures about being risk averse to recommending grants for cases. It think it would be hard for a body set up in Congress to do that. There is actually some--there is a need to have people who really understand our prison systems, who really understand programming in prisons, people who have themselves been incarcerated, people like that on an advisory body, I think, can do a lot more helpful and productive good. So I think it would be--a better alternative, in my view, would be for Congress to fund an advisory board that is bipartisan, but is not made up of congressional representatives, but it is actually made up of people in the field that really would understand what they are reviewing when they review commutations and pardons. So people who understand the difficulties with reentry, people who would understand sentencing. And, so, I think it would be a question of Congress providing funding for something like that. But I do think it has to be cooperative with the President. Because the President doesn't need to take advice from any outside body. And to keep it constitutional, I do think it would have to be something that the President wants to do that Congress funds. Just as an example of that, I would say when President Obama wanted to use the office of the pardon attorney for his initiative and wanted kind of additional funding for his process, my understanding is that funding was denied by Congress, and it was one of the setbacks in getting more grants. And so I think more productive type thing for Congress to do is to make sure that the President has funding when, you know, he or she wants to really up the ante. Mr. Raskin. Professor Osler, do you agree with that, and do you think that this is something we should do before the end of this Congress? Mr. Osler. I agree with Professor Barkow. I think that it is for the executive to form, that an advisory body, that certainly, there would be input from Congress informing that in terms of the dialogue that you have regularly on a number of executive decisions. The way that we are going to fix this process is going to be collaborative, and it is going to have to be. Now, that said, one thing that Professor Barkow mentioned that I think is really important is about the funding, that one of the reasons we didn't get an administrative body under the Obama administration is because they didn't believe they could get the funding for that, much less fund the pardon of office appropriately. Mr. Raskin. And do you think there is anything that can be done with this President? I mean, he is definitely drawn to luminaries and celebrities in cases like that. I almost thought we should have a TV show called, You Are Pardoned, where people can get up and make their case. Is there some way to enlarge his pool of applicants that are coming to him to get beyond just Kim Kardashian? Or should she be the pardon attorney? Mr. Osler. Well, I would say that I think there is encouraging signs that the President is moving in that direction to broadening the pool. And we have to encourage that. I think that, again, this is something where the control on the pardon is politics. And in terms of being critical of particular pardons, that is something that is going to happen, and it should happen going both ways. Having that dialogue--and that kind of a TV show, I would watch it. Mr. Raskin. All right. I would yield back, Mr. Chairman. Thank you. Mr. Cohen. Ms. Scanlon. Ms. Scanlon. Thank you very much. First, I would like to ask unanimous consent to introduce the U.S. Department of Justice statistics on clemency and pardons, going all the way back to William McKinley. So we have a factual basis to talk about how many petitions have been submitted, and how they have been dealt with. Thank you. So in looking at those, I noted that under the Obama administration, over 36,000 clemency and pardon petitions were submitted, which is more than four times any prior administration. And, in fact, more pardons--more clemency petitions were granted than under prior administrations. And I am familiar with that because I have worked with that project, the Clemency 2014 Project, in my last job. As I understand it, that program was started largely in the face of congressional inaction to address mass incarceration, and the inhumane and expensive results of the mandatory sentencing laws that this body passed. So Clemency 2014 invited clemency petitions from Federal prisoners who had served substantial sentences for low-level nonviolent crimes. And my former law firm worked with Ms. Roseberry and, indeed, I think just about everyone at this table, to recruit and train volunteer attorneys to screen applicants for clemency, and then represent them for free. Because there were no resources available to screen these applicants or to represent them. So, I came away with a few takes on this whole process. The first was the toll of excessive sentencing. The human toll of excessive sentencing. We heard from Ms. Smith before, I think, about the impact on her life. I would also suggest that people look at the documentary movie, The Sentence, which tells the story of one of my firm's clients and what happened to her and her family as a result of really unnecessary sentencing. The second thing I came away with was the need for resources to assist the people who are in jail. Because, in addition to the 29 people for whom we were able to receive Presidential clemency, we also found a number of clients who were entitled to relief, but had been unable to get it because they lacked legal representation. So, you know, the ongoing issue of making sure that people have actual access to justice. And then the third piece is, okay, where are we now? What can we do to try to get out of the situation? Obviously not imposing a lot of new mandatory sentences that, you know, don't really move the ball forward in terms of criminal justice reform. I was interested in hearing a little bit more about the Second Look Act, and if you can tell me kind of how that would work? I am not sure who is most familiar. Ms. Barkow. I am happy to start, and then Cynthia can jump in. There is proposed legislation that would allow people, after a certain length of time, to go back in for a resentencing. And I can't recall if it is 10 or 15 years. But the idea is you would have a second chance to go back before a judge for a resentencing at that point. And certainly, there are other models that are like that, that the American Law Institute had suggested that jurisdictions have that kind of lookback after a certain period of time that would allow judges to do it. And I will just say that you are absolutely right in terms of clemency was trying to fill a need that was actually just an inadequacy in other spaces. And First Step Act retroactivity, for example, really helped to address some of those petitions, allowing there to be retroactivity for people with the crack powder reduction. But it really should just be the general rule that when Congress makes any legislative changes to sentences that are lower, it should automatically be eligible for retroactive relief. I would really encourage that as a mechanism to deal with this backlog. That would probably be one of the best things that you could do. All it would mean, it would give people an opportunity to petition for that retroactive relief. And judges do a very good job at that. I will just tell you, if you are worried about public safety, the sentencing commission has the authority to make its guidelines retroactive, and had done so in 2007 for crack reductions, and was able to follow the people that got the reductions 5 years later. And the people that got the early release did not recidivate any higher than the people served their full sentence. And so, I think you can be quite confident that retroactive adjustments will be exercised wisely. And it is really one of the best things I think that you could do to deal with the backlog. Mr. Osler. I agree. I support Second Look. One thing to be conscious of, though, is that that can't represent place clemency, and it can't supplant it. And one of the reasons that we have seen this with First Step is that if there is a judge out there who gives a harsh sentence, rescinding that same case back to the same judge and saying, now review it, and that then--and of course there are more likely to deny the second look. Whereas the judge that is easier on the sentence is also easier on the second look. And that enhances disparities. We have to be very careful about that. And that is one reason that we are always going to need clemency as a backup to these things because those disparities are going to persist. Ms. Roseberry. And I would like to add we are soon to schedule a briefing on the second look that would be able to members who would like to learn more about it as well. Ms. Scanlon. Thank you. And I see my time has expired. Thank you all. Mr. Cohen. Thank you. You are recognized for 5 minutes. Ms. Dean. I am Madeleine Dean from Pennsylvania, and I, in anticipating this hearing, I was thinking over and over in my head of words that I used to teach. I was a professor at La Salle University for 10 years, a professor of writing. And we would look at the question of justice and mercy. And one of my favorite all-time speeches on the question of mercy, of course, is the woman attorney, Portia, from the Merchant of Venice. And so while we got the Bible in here, I wanted to make sure we got a little Shakespeare in here to frame this picture. Because we are talking not just justice, but mercy, and as some of you said, grace. As Portia argued, the quality of mercy is not strained. It droppeth as the gentle rain upon the place beneath. It is twice blest. It blesseth him that gives and him that takes. It is mightiest in the mightiest. It becomes the throne a monarch better than his crown. And earthly power doth then show likest God's when mercy seasons justice. I love that thought--when mercy seasons justice. I am not so interested in the monarch or throned crown, but it is a warning to us all. That when we remember to look beyond just justice, to look to that next higher level, and season whatever we do. And so, as I approached this hearing, I thought of that. And I thought of women I visited Muncy Prison in Pennsylvania, an all-women's prison. Many women that I met with are lifers. And so, the issue of pardon of clemency is on my mind. And you have given us many suggestions. Obviously, within the constitutional pardon power, it is so broad. We don't know or how we can influence directly this President or any others in the future. How can I make a difference for folks who are sitting in State prisons, like the women at Muncy, in terms of pushing toward greater clemency? Ms. Roseberry. Thank you for that question. And I have seen the lady lifers. I know they sing. I wept when I saw them sing. I think what you did is the first thing that we must do, and that is to get proximate to the people who are suffering under these sentences. As long as we can continue to quote numbers around them and about them, we don't know who they are. Kemba made a lasting impression on us all. So once we get proximate to them, we can lift their stories and their voices up to support categorical approaches like the lady lifers. I know one was recently pardoned in Pennsylvania. That is a category of people who don't need to be in prison. And we can go back to our States and say we want to look at our system to save money to give grace. I, often, when I tried a case, would say to a judge, it is really easy to give mercy to someone you like. The more difficult way to do it is someone who has done something you don't like, or with which you don't agree. The statistics show that people who commit violent acts have a lower probability of recidivism. So I would also like to include not just the people we like and who make us weep from sympathy, but those who have been rehabilitated because of a severely long sentence. Mr. Osler. And Ms. Dean, if I could, the quote from Shakespeare isn't irrelevant. It is striking that the Framers of the Constitution lived at a time that Shakespeare was revered. During the Constitutional Convention, George Washington went to see The Tempest, which has similar themes. Jefferson saw the Merchant of Venice twice. Jefferson and Adams, together, as rivals went to Stratford-Upon-Avon. So this is part of what influenced them, directly, as they chose to put the pardon power in the Constitution. Ms. Dean. Thank you for telling me that. Thank you. My next thought is, and you have given us some indication of it. And I was thinking, Professor Barkow, in your written testimony, you highlighted the differences, sort of general differences that struck me from H. W. Bush administration, and to the Obama administration, and petitions that were granted at least in the single digits. Yet, from the Nixon to Carter administrations, the grant was in the double digits, varying from 36 to 21 percent. In fact, you wrote that the grant rate between 1892 and 1930 was 27 percent. So for those who think pardon is so rare, and it happens only when you get a Kim Kardashian, or you get on Fox News, and that is just the way the system works historically, it wasn't that way. Can you identify some of the differences and how we could go back to higher pardon rates? Ms. Barkow. Yeah, I think we should think of it as a normal part of our operation of justice, because mistakes were a system that fails. And we need to also recognize that people change over time, and circumstances change over time. And clemency is there to correct for those failings, and also recognize the change in people. And we used to do that, and we used to do it regularly. And I think the switch was really the kind of Willie Horton-style politics that scared politicians away from using the courage to show people mercy. And I do think another part of that problem was giving more authority to within the Department of Justice, the Office of the Deputy Attorney General, really kind of taking over the clemency process and being more inclined to say no. So I think we can make an institutional change, but a big part of it is also just rethinking the politics surrounding these issues, and to vocally support giving people clemency. I think it is somewhat of the things you do for the people who are incarcerated with life sentences. The more politicians who speak out on these issues, I think the better. Ms. Dean. Thank you, Mr. Chairman, I yield back. Mr. Cohen. Thank you, Ms. Dean. Mr. Armstrong, I presume you are here to engage in some discussion. Mr. Armstrong. I am, Mr. Chairman. Thank you. Mr. Cohen. You are recognized for 5 minutes of cogent and interesting and pithy analysis. Mr. Armstrong. Perfect. I think we have people at the table that understand a lot of this stuff really well. So I will end my rant and come back to asking some questions. And I think the first one I would start with is when we talk about dealing with clemency and things we can do--I think too often we make binary choices. We talked earlier about retroactive application of those types of things. But are there ways where if we pass something like sentencing guideline reform, that we can work that into a presumption of existing cases? Because they are moving forward and looking back. And if we get into an all-or- nothing situation, we always run into a situation where we may get nothing. Just to get some structure, as an example, anybody who had a nonviolent drug crime with a sentencing guideline above X and we change that law, I mean, in order to put it into the system with a presumption towards it? Does that make sense? Ms. Barkow. I think if you are asking, if I am understanding correctly, Congress has given directives to the sentencing commission in the past. But almost every directive Congress has ever given the sentencing commission is to increase sentences. But you have the power to give directives to lower sentences. So if the question is, could, should it be appropriate to give directives to lower sentences, I would say absolutely. And I think that, and also fixing mandatory minimums. Because you see both of those as kind of inputs that creates these problems are the mandatory minimums. And then, you could have excessive guideline cases. Mr. Armstrong. Well, I appreciate that, because I think one of the things you see on minimum mandatory sentences is where they fall under the guidelines. One of the things the First Step Act did that, I think, is hopefully going to show a lot of long-term results, is how we allowed for the safety valve. And, I mean, getting a Class B misdemeanor deferred imposition of sentence when you were 18 years old for having a joint used to be where you wouldn't qualify for the safety valve anymore and how we are dealing with those issues. I mean--and then so I am going to just switch a little bit. When we are dealing with this moving forward, and not so much in the clemency area, what are some things we can do to work towards either, A--because it is usually the minor people in these cases. And there are just so many perverse incentives for somebody with a decent case to not go to trial--whether it is a 5Kl substantial cooperation or qualifying for a safety valve. Are there ways we can appropriate those things so they can actually be utilized, and also work towards people's ability to go to trial? Mr. Osler. I am sure Professor Barkow will have comments on that. But just briefly, I would say that a couple things to look at relating to that would be the conspiracy law, and the way that conspiracy built on top of the way we used the weight of narcotics is the proxy for culpability. It leads to the problems with a lot of the cases that I as a Federal prosecutor and you as a Federal prosecutor saw. Mr. Armstrong. Well, I was a defense attorney. I was on the side of righteousness and goodness. Mr. Osler. But you saw the same thing, though. Mr. Armstrong. We did. Mr. Osler. But that is one thing. Also, you know, insofar as there are other laws that we have in the Federal system, the bootstrap accomplished liability into sentencing. We need to review those, and that is something that would really use the attention of this body. Mr. Armstrong. And before I--go ahead, ma'am. Ms. Roseberry. I would also add, looking at the trial penalty that is often put on a person who exercises their constitutional right to a trial and doesn't accept the plea agreement, we need more transparency around plea agreements, and how and whether they are offered and to whom so that we will know how people are choosing and/or being coerced into taking pleas. Mr. Armstrong. I have seen that just on the ground. It is not that necessarily sometimes don't want to take responsibility for their actions. They just don't think their actions quite correlate with 375 pounds of methamphetamine, because of what you were talking about, about the total weight of the process. So, again, that is not always binary. Yes. Am I guilty of something? No. Should I be going to prison for 37 years? I mean, so having the ability to do some of that post sentencing, which would back to my point of, you know, we--we have done an okay job of making guidelines discretionary instead of mandatory. But I still stand by the--if we are appointing Federal judges for life, we need to give them a little more control over their courtrooms. And that could work into a clemency scenario as well. Ms. Barkow. Could I just add that if you wanted to address the plea-bargaining issue, one of the directives, for example, you could have is that you would allow defendants to challenge relevant conduct and it would not count against acceptance of responsibility. It is a kind of precise way to deal with the problem that you are talking about. Because right now, the Department frequently tells people that you cannot get acceptance of responsibility if you are going to challenge relevant conduct on appeal. That makes a big difference, and it creates all kinds of issues with whether or not people can challenge things later. So do I think that--I mean, that is the kind of more micromanaging things that happen over at the commission. But Congress has done that a lot over the years, but always in the direction of severity. And so I do think it wouldn't be inappropriate to do it in the other direction, and also to emphasize you want more role adjustments. Mr. Armstrong. Thank you. And thank you all for being here. Mr. Cohen. Thank you, Mr. Armstrong. Mr. Cohen. Does anybody have anything else in the short and cogent, pithy manner they would like to voice. Ms. Roseberry. I do, your Honor. Mr. Cohen. Go ahead. Ms. Roseberry. Mr. Chair, I think looking at these issues in a vacuum is what has kept us in a system of mass incarceration. I think we have to look beyond the scope of nearly our criminal legal system to policing, and how communities, or particularly communities of colors and poor communities are policed, so that there is more interaction with the criminal legal system, and there is more difficulty getting out of the criminal legal system. And I also lift up the idea of reentry. I know that we are not here for reentry, but clemency affects that. When people come home, they need to be able to fully integrate, not just having a job, but understanding the technology that works or has come into existence since they have been away, understanding how the world works. Yesterday, I had a briefing with the Justice Round Table where I saw that Washington State is working to reintegrate parents with children earlier. You heard about Mr. Underwood who is prison here, who has been away from his children forever. We need to think about families, and reintegrating those families with each other as we bring people home as well. And that means preparing people while they are in prison, for a short period of time, preparing them to come home so that the community can be assured that they are coming home rehabilitated and that the environment is safe. Mr. Cohen. Thank you, Ms. Roseberry. We have a Subcommittee on Crime, and the chairwoman, Karen Bass, had a hearing on that subject. It might have been this week, but it was recently. If not this week, it was last week, and we went into several of those issues, but that is important, reentry. Professor. Mr. Osler. Yes. I would just like to follow up on something Mr. Armstrong said about--you mentioned the 100-to-1 ratio between crack and powder and the influence that had. That is what pulled me into this whole thing. I was a Federal prosecutor in Detroit in the 1990s. I prosecuted those cases. I sought those sentences, and I received them, but I stopped believing in it. And it was coming to the other side, and eventually, we did win in the Supreme Court, and we did win at least in the Fair Sentencing Act through the work of Ms. Taifa and others, you know, changed prospectively. But clemency was what allowed us to look retrospectively. Now, that brings me to my final point, which is, too often, we talk about criminal justice reforms as this or this. It needs to be this and this. And so, when we talk about other reforms, and I think Professor Barkow did a great job of outlining some of those other reforms that are necessary. That is not at the exclusion of fixing clemency. It has to be fixing clemency and creating those reforms to prevent the tragedies that you described. Thank you. Ms. Barkow. Just quickly, I would just say that mercy and reducing sentences aren't inconsistent with safety. This is a really good opportunity. You can do both. And actually, lowering sentences can help improve safety. It makes reentry easier for people when they serve shorter sentences. Longer sentences are not--I think people make an assumption that we want to keep sentences as long as possible, and we don't want retroactive relief because that is good for safety, but we have mounds of data that shows that is not true. Mr. Cohen. Let me ask a question of the panel. You all have mentioned 1,700 people who were commuted, had sentence commutations under President Obama. Were there maybe 7- or 800 pardons as well? Ms. Barkow. No. The pardon process--there were almost no pardons because all the effort was brought into commutations. Mr. Osler. It was in the 200s, I believe, the number of pardons. And this is described in the Inspector General's report as well, that as they were working on the commutations, they intentionally set aside pardons and said to the pardon office, don't worry about pardons. Just focus on commutations. Eventually towards the end of the process, they changed their mind. They dedicated one person to the pardon office to work on just pardons, and that's how we got that relatively small number. Mr. Cohen. And it is referred to as the 2014 plan. When did they start issuing clemencies? Mr. Osler. I believe that the first eight came---- Ms. Roseberry. In 2015. Mr. Osler. 2015. Ms. Roseberry. It was calendar year 2015. Mr. Cohen. Was it light in 2015. Ms. Roseberry. It was. Yes, it was. It took a while to get up and get going. We had to receive data from the Bureau of Prisons in order to identify people. And I should also say that the 36,000 were people who came to the project looking for a petition to be filed. Ultimately, under the discrete criteria that were announced, many of them were not passed on through petition because it was found that they appeared not to qualify. Mr. Cohen. Thank you. Thank you. Kelly. Do you have anything else, Representative Armstrong? Mr. Armstrong. I don't. I just want to say, again, thank you all for being here. Mr. Cohen. Nobody else. No. All right. That concludes today's hearing. I want to thank all of our witnesses and Ms. Smith Pradia, who had to catch a plane to get to Carolina to speak. I thank everybody for appearing. Without objection, all members have 5 legislative days to submit additional written questions for the witnesses and additional materials for the record. This hearing is adjourned. [Whereupon, at 12:07 p.m., the subcommittee was adjourned.] APPENDIX ======================================================================= [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]