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Reformers Call on Congress to Fix 'Broken' Federal Clemency Process

The federal clemency system is in crisis, with 18,000 petitions pending "and no plan in place to deal with this historic backlog," law Prof. Mark Osler of the University of St. Thomas in Minnesota told a House subcommittee oversight hearing on Thursday. In Osler's view, the clemency process has been broken for four decades. "Before that, pardons and commutations were issued at regular intervals and in numbers we would find remarkable today," he said. From a relatively simple system in which a petition was reviewed by the U.S. pardon attorney and then a recommendation was sent by the Attorney General to the President, "bureaucracy grew and metastasized until the process came to include seven distinct actors, each with their own interests and biases."

Osler and other witnesses called on Congress to help fix the problem. Osler says the current process "is simply too long, too complex, and too opaque. No state has a system with nearly this many hands involved, and for good reason: It’s just bad management.." He says that "the specialists with the most knowledge in this area are in the Office of the Pardon Attorney, but they are at the very bottom of the vertical line of decision. At the top we find generalists who usually will lack a depth of knowledge in this field—and they are asked not to generally provide guidance or oversight, but to individually review each petition." Andrea James of the National Council for Incarcerated and Formerly Incarcerated Women and Girls cited a proposed "FIX Clemency Act," which would create a commission to review clemency petitions. She said the new system would eliminate "the conflict of interest in which the Justice Department reviews the decisions of its own prosecutors and, not surprisingly, rarely finds them wanting." James said the reform would "reduce the political fallout for modern presidents who think they must appear tough and so are averse to granting clemency. It will end the practice of cramming serious consideration of clemency into a short period" at the end of the presidents' terms.


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