Many things have divided progressive and centrist Democrats, but they are united in the view that prosecutors at the Department of Justice should not be in charge of clemency.
During the Democratic primaries, Amy Klobuchar, Kamala Harris, Pete Buttigieg, Cory Booker, Elizabeth Warren and Bernie Sanders all endorsed a good and simple idea: Take the clemency process out of the Department of Justice and put it in the hands of a bipartisan board to advise the president, ending decades of dysfunction.
After Joe Biden won the nomination, this reform was endorsed as part of the Biden-Sanders Unity Plan and the Democratic platform. Under this plan, clemency could be used frequently, impartially, and with principle.
Inexplicably, however, the Biden administration seems poised to reject this consensus and wants to leave clemency under the control of the Justice Department. Doing so will undermine the administration's stated hope of achieving criminal justice reform and reducing racial bias in the federal system.
The fundamental problem with having the Justice Department run clemency is that prosecutors aren't good at it. Under the department's regulations, the Office of the Pardon Attorney must give "considerable weight" to the opinions of local prosecutors — the very people who sought the sentence in the first place.
These prosecutors typically don't keep up with the people they prosecuted to learn what they've been doing while incarcerated or what their post-prison re-entry plans look like. Their data point is the conviction itself, so their analysis of the case is frozen in time. No matter the intent from on high, it is hard to get around this obstacle.
Vice President Harris, a former prosecutor herself, has warned of "inherent conflicts of interest" in the current process. Justice Department lawyers, she argued during her campaign, should not determine whether people convicted by colleagues in the legal system should have their sentences shortened or commuted.
The Biden administration is ignoring this fundamental truth because it wants a reprise of President Barack Obama's approach to clemency. It is worth remembering that model yielded only one commutation of a sentence and a handful of pardons during his first term because it relied on the lethargic, biased process embedded within the Justice Department. The Biden administration seems to be focused only on President Obama's clemency efforts in his final two years in office, but even those efforts had limited success.