[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
         
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        Available http://judiciary.house.gov or www.govinfo.gov        
       
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                    U.S. GOVERNMENT PUBLISHING OFFICE                    
41-289 PDF                  WASHINGTON : 2020                     
          
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                       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 Counsel deg.
                            
                            
                            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

=======================================================================


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    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:]
    
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    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:]
    
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    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

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