I’ve been musing about a phone call I received about a decade ago. One morning in 2016 our law office receptionist let me know that an attorney from the U.S. Pardon Office (part of DOJ) was calling — I assumed for some minor additional information. I was on a deadline and about to say, please take a message.
The call itself was not a complete surprise. Ashfield attorney Buz Eisenberg and I were filing commutation petitions with the U.S. Pardon Office as cooperating attorneys with Clemency Project 2014 (CP2014).
CP2014, initiated by the Obama administration, was a collaborative effort with the American Bar Association, the ACLU, Families Against Mandatory Minimums, the Federal Defenders and the National Association of Criminal Defense Lawyers.
The Project’s foundation: non-violent low level drug offenders, casualties of the War on Drugs, were serving 20, 30 or 40-year sentences that would no longer be imposed under the amended law. But because time off for good behavior and completing rehabilitation programs and parole itself had pretty much been abolished, they’d still have to serve almost every day.
The federal Sentencing Guidelines mandated these draconian sentences. They operated not as guidelines but rather, with few exceptions, as mandatory sentences, leaving judges little discretion, making them function as sentient adding machines.
In January 2005, the Supreme Court’s Booker decision held that the Guidelines, in effect for some 18 years, were unconstitutional and converted them from mandatory to advisory. But SCOTUS unconscionably refused to apply its decision retroactively, so people already sentenced still would have to serve all their time.
Which left only one way out: commutation.
A commutation, part of a president’s constitutional power “to grant reprieves and pardons,” reduces a sentence. A pardon, in contrast, extinguishes, or when issued in advance, precludes, a conviction.
CP2014 provided the structure for volunteer lawyers to file commutation petitions that the Pardon Office would seriously evaluate, and the president would seriously consider.
Back to the phone call. Here’s one thing lawyers pretty much agree on: when a government lawyer calls, pick up the phone.
I did. The attorney introduced herself and asked me to confirm my representation of (she named the client) and then said, “Mr. Newman, I’m calling to tell you that the president has just granted your petition for commutation.” Her words choked me up, literally taking my breath away. Our client had been in prison for almost 20 years.
Then I called Buz. In the coming months, Buz would receive those calls. Justice is a rare commodity. The five petitions that resulted in release brought us great joy. That was then.
Obama and CP2014 got it right. That program resulted in 1,696 commutations.
And President Joe Biden got a lot right, too. He granted clemency to 2,500 persons convicted of nonviolent drug offenses or released to home confinement during the Covid epidemic.
He also pardoned his son Hunter, setting off significant criticism that I understand. But can you imagine Hunter Biden’s life in federal prison during a Trump administration?
Biden also presciently granted pardons to other family members Donald Trump had threatened to imprison because they were related to him and prominent public officials for doing their jobs — for example, Dr. Anthony Fauci, General Mark Milley, Rep. Liz Cheney, and members of Congress and staff who had served on the January 6 Committee and police officers who had testified, for example. An opponent of capital punishment, he also commuted to life without parole the death sentences of 37 of the 40 people on federal death row.
Contrast Trump. In his second term he has issued pardons and commutations to all the January 6 rioters, many of whom later committed additional serious violent crimes. He has also pardoned some 300 political allies and super rich donors, mostly for bank fraud and money laundering and Juan Orlando Hernández, the former president of Honduras, sentenced to 45 years for trafficking hundreds of tons of cocaine into the U.S.
Other presidents have misused the pardon power. For example, Bill Clinton’s pardoned fugitive donor Marc Rich, which Clinton later regretted, and George H.W. Bush pardoned Caspar Weinberger, accused of lying to Congress about Iran-Contra.
The country’s founders intended clemency to be used as acts of grace, to remedy injustices. But pardons now are for sale, with Trump bathing in the Supreme Court’s 2024 decision granting him and future presidents immunity for crimes committed while in office.
Do note that the current chief Pardon Attorney, Ed Martin, is a Trump loyalist, election denier, and January 6 enthusiast. And Trump sometimes grants clemency without even consulting that office.
Trump’s pardons and commutations, rather than acting as an antidote to injustice, line his pocket and cement in place the unfairness, biases and racism of our two-tiered legal system — one for the rich, well-connected or politically favored white people, another for everyone else. Trump’s abuse of clemency will be one, albeit only one, of his ignoble legacies. My work supporting worthy commutations is one reason, albeit only one of many, that his constant attacks on justice feel so personal.
Bill Newman is a Northampton-based civil rights lawyer and radio show host.