Josephine Ross and Casey Anderson: Proposed regulations create roadblocks for DC Clemency Board
Passage of the Clemency Board Establishment Act of 2018 gave the District the opportunity to create its own, local clemency board and to ensure that applications from people convicted of DC Code offenses have a direct route to the president’s desk. While the mayor has appointed board members, they now await regulations before they can begin work.
Currently, the path to clemency in DC is winding and almost always results in a dead end: People must complete a complex application form designed exclusively for people with federal convictions and submit it to the Office of the Pardon Attorney at the U.S. Department of Justice, which may (or may not) pass their recommendation for a commutation or pardon to the deputy attorney general. For lucky candidates who get this far in the process, the attorney general’s office may then pass their recommendation to the White House attorney, who would put the grant on the president’s desk for signature.
No wonder that, out of 2,899 clemency grants issued by five presidents since 1989, only one person with a DC conviction has been granted relief. This statistic is even more troubling when we consider that 96% of people serving felony sentences for DC convictions are Black. Our lack of access to clemency is not only a statehood issue and an administration of justice issue, but also a racial justice issue.
DC has never had clemency power; the ability to grant commutations and pardons has always rested with the president. While the new law does not empower the mayor to grant clemency herself (a power enjoyed by most governors), it creates a direct path to the president and sets its own process and priorities for evaluating clemency applications for people convicted under the DC Code. When implemented, the law should give DC an opportunity to take a step toward local control, to advocate for relief for those serving extreme sentences, and to help end the mass incarceration of Black people. But the Clemency Board regulations proposed last month by the mayor’s Office of General Counsel will prevent us from achieving those goals if they are adopted without major changes.
As drafted, the regulations threaten the prospect of an operational DC Clemency Board that streamlines the application process. The proposed rules, which could go into effect this fall, would reduce the DC Clemency Board to a letter-writing committee. People would still be required to fill out the federal paperwork and apply to the Office of the Pardon Attorney. Only then could they choose to file a second application asking the DC Clemency Board to add to the federal file by sending a letter of recommendation on their behalf to the Office of the Pardon Attorney. These rules would add a new layer of bureaucracy rather than replace the current complicated and confusing process. While a supporting letter is better than nothing, this was hardly the independent process envisioned by the statute.
The DC Clemency Board is not in this position because of a lack of support while regulations were being drafted. Clinic students at the Howard University School of Law drafted an application form and regulations that embodied the legislative intent for the new DC Clemency Board. The students’ drafts aimed to create an application process that incarcerated people and returning citizens could fill out without lawyers to explain why they deserved clemency or pardon based on rehabilitation, health or innocence — the criteria set by the board. For candidates who receive a favorable vote from the board, the staff would then help these deserving individuals complete any additional paperwork requested by the White House counsel. This process would allow our city to gear commutation to our community’s needs, make it more likely that people would apply and ensure that the board is able to find deserving applicants. It would simplify the process and more effectively get applications before the president.
Local advocates have pushed for years to create an effective new path to clemency for people convicted under DC law. The Office of the Pardon Attorney has long been a roadblock to DC petitioners. People seeking clemency should not have to file federal Department of Justice applications with the Office of the Pardon Attorney before the DC board will even consider their application. The mayor’s general counsel should correct the proposed regulations so that they follow the intent of the statute and open a direct path to the president.
Josephine Ross is a professor at the Howard University School of Law, and Casey Anderson is communications manager at the Council for Court Excellence.
About commentaries
The DC Line welcomes commentaries representing various viewpoints on local issues of concern, but the opinions expressed do not represent those of The DC Line. Submissions of up to 850 words may be sent to editor Chris Kain at chriskain@thedcline.org.
Comments are closed.