A coalition of congressional lawmakers on Friday introduced a bill aimed at streamlining the presidential clemency process, with supporters arguing that it could help address mass incarceration that’s been driven by punitive policies like the war on drugs.
Reps. Ayanna Pressley (D-MA), Cori Bush (D-MO) and Hakeem Jeffries (D-NY) are leading the the Fair and Independent Experts in Clemency (FIX Clemency) Act, with more than a dozen additional cosponsors also signed on. The legislation would take clemency review authority away from the Justice Department and establish a new independent board comprised of presidential appointees to facilitate relief for people with certain federal convictions.
Advocates have long criticized the current administrative clemency system, which involves submitting petitions to the DOJ’s Office of the Pardon Attorney. They argue that the influence of people involved in law enforcement in reviewing clemency cases makes the process inherently flawed.
Of course, the president can unilaterally grant clemency without the Justice Department’s go-ahead—a right that President Donald Trump frequently exercised, for example—but the lawmakers say that it’s still necessary to reform the existing system to ensure that all deserving cases are identified. That includes people impacted by the drug war.
“Fueled by the failed war on drugs, the mass incarceration epidemic that our nation faces has ruined lives, families and communities,” Jeffries said in a press release. “Our broken clemency system only deepens this pain, and we must transform it in a just, equitable and transparent manner.”
Pressley said that the nation’s “growing mass incarceration crisis is rooted in white supremacy and has ravaged our communities, destabilized families, and exacerbated generational trauma for far too long.”
Today, we're holding a press conference to unveil the #FIXClemencyAct, my bill with @RepCori, @RepJeffries & grassroots advocates to transform our broken clemency system & help #EndMassIncarceration.
I hope you'll tune in!https://t.co/vP19ibM72i
— Congresswoman Ayanna Pressley (@RepPressley) December 10, 2021
“Our bill would confront this crisis head-on by transforming our broken clemency system—which is plagued by secrecy, inefficiency, and systemic bias—and instead centering justice, equity, and transparency,” she said. “Justice delayed is justice denied.”
Under the legislation, the president would be empowered to appoint nine members to the U.S. Clemency Board. Those members should possess “significant experience with the criminal legal system, clemency, behavioral health, or reentry services,” the text of the bill states.
Appointees must include at least one person who was formerly incarcerated, someone who was directly impacted by crime, a person with experience at a federal defender organization and a representative of the Justice Department.
The board would be charged with reviewing applications for pardons, commutations or relief from collateral consequences of convictions. Its recommendations would be transmitted directly to the president. The body would also submit an annual report to Congress that tracks relevant characteristics of applicants, including age, gender identity, race and ethnicity, sexual orientation, disability, type of offense, years served and geographical location.
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“When it comes to decarceration, communities like my own in St. Louis that have been devastated by mass incarceration and a failed war on drugs cannot stand for any more excuses,” Bush said. “President Biden can grant clemency with a stroke of pen and this bill will help him do that. By establishing an independent board to clear the backlog of 18,000 clemency petitions, our bill will ensure that humanity, compassion, and love for our community members are at the center of our policy work. This important legislation will save lives.”
Other cosponsors of the FIX Clemency Act include Reps. Steve Cohen (D-TN), Rashida Tlaib (D-MI), Eleanor Holmes Norton (D-DC), Alexandria Ocasio-Cortez (D-NY), Bonnie Watson Coleman (D-NJ), Karen Bass (D-CA)), Ilhan Omar (D-MN), Mondaire Jones (D-NY), Jamaal Bowman (D-NY) and Dwight Evans (D-PA).
Our federal prison population is increasing for the first time in 8 years.
We must end the era of mass criminalization.
— Congresswoman Cori Bush (@RepCori) December 10, 2021
There have been multiple pleas to President Joe Biden to use his authority to pardon people, particularly those who have been criminalized over cannabis. But he’s so far reserved his clemency power to Thanksgiving turkeys.
Early this year, 37 congressional lawmakers sent a letter to Biden, urging him to use executive authority to issue mass pardons for people with federal marijuana convictions on their records. Three members who led that letter sent a follow-up this month, reiterating the need for presidential relief.
Last month, a group of senators separately sent a letter urging Biden to use his presidential power to grant a mass pardon for people with non-violent marijuana convictions.
Sen. Elizabeth Warren (D-MA), who led that letter, said during a recent interview that Biden could boost the economy and promote racial equity with the “stroke of a pen” by granting the relief.
A recently published Congressional Research Service (CRS) report affirmed that the president has it within his power to grant mass pardons for cannabis offenses. It also said that the administration can move to federally legalize cannabis without waiting for lawmakers to act.
Relatedly, a group of more than 150 celebrities, athletes, politicians, law enforcement professionals and academics signed a letter that was delivered to Biden in September, urging him to issue a “full, complete and unconditional pardon” to all people with non-violent federal marijuana convictions.
That letter came just as the administration started encouraging about 1,000 people who were temporarily placed on home confinement for federal drug offenses to fill out clemency application forms.
Warren and Sen. Cory Booker (D-NJ) separately sent a letter to the attorney general in October, making the case that the Justice Department should initiate a marijuana descheduling process in order to “allow states to regulate cannabis as they see fit, begin to remedy the harm caused by decades of racial disparities in enforcement of cannabis laws, and facilitate valuable medical research.”
The White House said in August that the president was looking into using his executive authority to grant clemency to people with certain non-violent drug convictions.
Biden has faced criticism from drug policy reform advocates who’ve grown frustrated that he’s yet to make good on campaign promises such as decriminalizing marijuana possession. The president also campaigned on expunging prior cannabis records and respecting the rights of states to set their own laws.
Since taking office, however, his administration has made little progress on any of those pledges and has instead fired its own White House staffers over marijuana and sought to extend a budget provision that has blocked Washington, D.C. from legalizing cannabis sales.
In April, White House Press Secretary Jen Psaki was pressed on Biden’s clemency promise for people with federal marijuana and said that process will start with modestly rescheduling cannabis—a proposal that advocates say wouldn’t actually accomplish what she’s suggesting.
Moving cannabis from Schedule I to Schedule II under the Controlled Substances Act, as Biden is proposing, wouldn’t facilitate mass clemency given that being convicted for crimes related to drugs in that slightly lower category—which currently includes cocaine—also carries significant penalties.
Read the text of the FIX Clemency Act below: