A Promising Appointment Brings Hope for Federal Clemency Applicants

The new pardon attorney’s background in public defense may bring a needed perspective to those seeking relief.

Cynthia W. Roseberry, Deputy Director, ACLU Justice Division, American Civil Liberties Union

In late April, President Biden announced that he would commute the sentences of 75 people, and pardon three others. It was his first act of clemency as president, and a welcome development for those of us in the criminal justice reform world who have been waiting for him to leverage this executive power. The use of that power — which has broad public support — was a good first step. At the ACLU, where we are advocating for the release of 50,000 people from federal and state prisons through our Redemption Campaign, we were heartened to see him take this step. But if the president is to fulfill his commitment to justice and equity, there is a lot more work to be done.

We have reason to hope this administration will continue to take steps in the right direction. Earlier this month, Attorney General Merrick Garland appointed a former public defender to oversee the office that reviews federal clemency applications. The perspective of Elizabeth Oyer, who represented criminal defendants in Maryland for nearly a decade, is a welcome addition. It’s an encouraging development that a person who has represented people charged with crimes and understands the imbalance of power in federal criminal prosecutions would be the arbiter of relief from that system.

Criminal defense lawyers, and public defenders in particular, understand the power of prosecutors to use their broad discretion to charge people with crimes that drive extreme sentences. This power and how it has been wielded is the reason 98 percent of people charged with a crime opt not to go to trial. The stakes are too high, and the opportunity for relief is minimal outside of the clemency power of the president.

Further, criminal defense lawyers are likely to understand that the elderly and those who were sentenced more harshly than they would be under today’s laws deserve to reap the benefits of changes in sentencing laws. A criminal defense lawyer like Oyer will understand that those charged with violent crimes, especially those who committed the crime before the age of 25, should be given a second chance. The data shows that people age out of crime — including those who commit violent crimes — and that older people who are released are unlikely to reoffend.

Oyer likely also understands that those who do opt to go to trial are severely penalized for exercising that right. After a conviction at trial, defendants face longer sentences than those who plead guilty. Often referred to as the “trial penalty,” the sentence after exercising their constitutional right to trial is exponentially greater.

The Office of Pardon Attorney is one of the only ways for those convicted of a federal crime to obtain relief after appeals have been exhausted. This office determines which cases get reviewed by the deputy attorney general, White House counsel, and ultimately the president. If this gatekeeper brings the perspective and experience that comes with being a public defender, redemption is possible. Oyer has worked in close proximity to the people and families who are most impacted by the criminal legal system, and the actors within that system.

If the new pardon attorney has a willingness to listen to criminal justice advocates, to introduce transparency into the review process, and to dislodge the backlog of applications, there is a chance that clemency is moving in the right direction. Next, we need the deputy attorney general, White House counsel, and President Biden to listen and heed the guidance of someone who understands the criminal legal system from the perspective of those it harms. The appointment of a former public defender is a promising start.