This article describes how President Donald Trump transformed the federal pardon process from a fairly routine bureaucratic mechanism operated by the Office of the Pardon Attorney into a series of personally negotiated and theatrically performed acts. It considers how Trump’s practices have rendered pardoning on the federal level democratically suspect and suggests a mechanism for re-invigorating pardoning as a democratic process.

Congress has been weighing a new form of judicial relief—a Certificate of Rehabilitation—that could alleviate the “internal exile” caused by the collateral consequences of a federal conviction. Aside from the once robust, now rare and erratic pardon power, federal law lacks a general restoration-of-rights regime. Currently authorized by 13 states, judicial certificates of relief are recommended by the major national law reform organizations. This essay describes a bipartisan Senate proposal to authorize federal judges to issue certificates of rehabilitation.

In light of the unprecedented pardoning practices of President Trump, we should consider curbing some of the most questionable instances of presidential pardoning by amending Article II of the Constitution to provide that the president may grant pardons only “after conviction,” as a majority of state constitutions already provide.

This essay outlines the pressing need for a robust use of pardon power to address the cascading consequences of criminal convictions. It argues that a scalable auxiliary to presidential pardon power is a legislative scheme that harnesses the federal court system to conduct individualized reviews and adjudications of petitions for the restoration of rights. In the digital age, where nothing can be truly forgotten, these judicial certifications of rehabilitation, coupled with clear prohibitions on considering criminal records, are the most effective way to address the profound collateral consequences of criminal convictions.

The Office of the Pardon Attorney has served presidents well for many decades, but recent presidents have become frustrated with it for various reasons. In this article, I examine the office’s past and present, then look at possible reforms to better prepare the clemency screening process for the Biden administration and its successors.

Since the nineteenth century, presidents have largely relied on recommendations from the Office of the Pardon Attorney when granting pardons and commutations. The current process for making clemency recommendations usually takes more than a year. It is governed by Justice Department regulations that outline the factors for consideration of petitions and set forth multiple stages of review. While reliance on pardon attorney recommendations has long been the norm, presidents are not required to use this process. Presidents before Donald Trump had circumvented the pardon attorney. However, no prior president had made the evasion of this process the norm. This article details what appears to be the pardon attorney’s rare involvement in President Trump’s clemency grants.

The guest editor’s introduction aims to provide an overview of Donald Trump’s extraordinary record of pardoning, and a road map to the essays in the Issue. Together the essays discuss ways to restore legitimacy to the pardon power and increase its usefulness to the presidency, by limiting some of the pardon power’s most extreme uses; supplementing the pardon power with statutory remedies so that the president is no longer personally responsible for so much routine criminal justice business; and managing the pardon power in a way that serves the presidency and not the parochial interests of federal prosecutors. All of these ideas and arguments together suggest that the way to restoring pardon’s democratic legitimacy and usefulness to the president lies in shrinking the portfolio of routine chores for which pardon is now exclusively responsible, and in restoring the independence and stature of the pardon advisory process within the Justice Department. It would be both fitting and deeply ironic if Donald Trump’s irregular and undemocratic pardoning led to a more coherent and meaningful use of the constitutional power in the service of an enlightened presidential policy agenda, to a renewed commitment to the historically close relationship between pardon and the justice system, and even to a transformation of the Justice Department’s unforgiving prosecutorial culture.

The president’s power to grant clemency is but one feature of a sentence-correction ecosystem. But the abolition of federal parole in the 1980s left the clemency power as the only way to correct lawfully imposed sentences for the simple reason that they are too damn long. This article is about another way to correct sentences for that simple reason, one that has been right there all along but was moribund for decades, and about a 2018 statute and a Debevoise & Plimpton pro bono project that breathed life into it. And it is a critical Article III complement to the Article II clemency power. For the past five years, the Holloway Project at Debevoise has advocated for federal prisoners, overwhelmingly men of color, who were given bone-crushing sentences pursuant to the cruelest mandatory sentencing law the federal system had to offer. The typical Holloway Project client is a middle-aged man who was sentenced decades ago for robbery sprees in which a firearm was used but no one was hurt and little was stolen. In almost all of their cases, the indefensible sentences—often as not the equivalent of life without parole—had nothing to do with their culpability and everything to do with their refusals to cooperate and/or plead guilty. This article describes the Holloway Project and how it has used what has become known colloquially as the “compassionate release” statute, 18 U.S.C. § 3582(c)(1)(A), and 2018’s First Step Act to persuade federal judges to undertake holistic, compassionate reevaluations of the men these incarcerated individuals have become after all their years in prison, and inject some humanity and justice into a sentencing regime that is still in desperate need of both.

In 2019, then-President Trump pardoned three military officers for battlefield misconduct that could have been charged as war crimes. These were the first such pardons in American history and left many current and former members of the Armed Forces bewildered: these officers had all been charged by their military chains-of-command after sufficient evidence indicated culpability, and in two of the cases, military juries (“panels”) consisting of high-ranking officials with combat experience had convicted the officers and sentenced them to hefty federal prison terms. The granting of clemency under these circumstances has proven fraught with consequences – consequences adversely affecting the relationship between the president as commander-in-chief and the senior military leaders who cautioned against such extrajudicial mercy. Nevertheless, the president’s authority to do so, under Article II of the Constitution, is nearly without limit, and no other statute, case law precedent, or other formal restriction prevents him from doing so. This article approaches the problem from an assumption that neither the Constitution itself will be amended to carve out such crimes from the president’s reach, nor that Congress will amend the Uniform Code of Military Justice or the War Crimes Statute to chip away at this power by enacting administrative conditions on its exercise. Rather, this article suggests that the most likely and practical tool to prevent such pardons in the future is the reasonable, prudential exercise of restraint by the commander-in-chief. Several contingent factors, based on the possible timing of the pardon in relation to where the case is in the military justice process, are identified as a framework for exercising this prudential restraint notwithstanding the Constitutional authority to ignore it.

The pardon power of the U.S. president is very broad. A president may pardon any federal crime committed prior to the date of the pardon, and may issue pardons to individuals or groups of persons for offenses committed in connection with multiple discrete events. However, the Constitution’s text and British and American precedent suggest that a valid pardon presupposes awareness by the President of that which is being pardoned as a logical and legal precondition for an exercise of judgment about the propriety of granting clemency. Accordingly, a pardon of the type issued by President Gerald Ford to former President Richard Nixon, purporting to pardon Nixon for all federal offenses committed during his terms of office, irrespective of Ford’s knowledge of them, should be deemed unconstitutional.

In the wake of the verdict in the Derek Chauvin trial, many people are posing the question as to what is next for racial and social justice. As the power of the prosecutor has been on display in recent months, what can be done to make sure that accountability is spread evenly among all races in the criminal justice system? For decades, the metric of a prosecutor’s success revolved around conviction rates. As thinking has evolved around the country, success now includes areas such as community safety, health, and wellness – which requires a new way to measure the work being done. Data provides this information. Data will play a critical role in ensuring transparency, changing policy, and making sure that justice is dispensed equally. Data creates a common language, as well as evidence regarding what is working effectively, and what is not. We cannot fix what we do not measure.

Judges realize that each criminal defendant who appears for a sentencing is a unique individual, with his or her own peculiar background, experience, and motives. The overriding purposes of our sentencing decisions are to fairly punish the offender and protect the public. For years, there has been no accurate way to study the data generated by sentencing decisions, even by judges. Yet statistics have always existed, and studies have sometimes made unscientific and unsubstantiated claims of disparity and unfairness in sentencing. I was proud to volunteer my county to be a part of an effort to maintain confidence in the judiciary. Allen County is a medium-size county with all the types of criminal cases seen in smaller and larger counties. My court system is neither so big as to make the data collection experiment untenable, nor so small as to make the project too easy. The data platform project is a marriage of two separate disciplines: the judiciary and technology. This is an opportunity to be a part of something important and innovative that will help promote public confidence in the independence , integrity , and impartiality of the judiciary. In the end, my hope is that the data collected will make me and my colleagues better judges and restore any lost confidence in the integrity of what we do.

Since the global pandemic began in early 2020, COVID-19 has impacted almost every correctional facility in the country. In Pennsylvania, the pandemic response has required significant changes to the operation of correctional facilities and necessitated a reconsideration of the risks and responsibilities for staff. Although the risks of viral infection are not a completely new concern for people working in prisons, the highly transmissible coronavirus and the near-universal nature of the resulting pandemic has potentially changed how health and safety are viewed. To better understand these concerns, the staff of the PADOC was surveyed to allow them to self-report their perceptions of the pandemic response, the need for vaccination, and other relevant areas. This independent report draws on these data to provide insight into the current perspective held by the PADOC staff population regarding vaccination and some of the factors that are associated with that decision. In turn, these descriptive data can be used to inform the development of evidence-based public health and correctional policies during the pandemic.

Americans have grown uneasy with our ranking as the world’s leader in incarceration, which has made way for thoughtful discussion and debate around how to reform our sentencing and corrections systems. To adequately measure progress toward ending mass imprisonment, federal and state prison data must become more readily available and transparent. The Sentencing Project embarked on the work of documenting the number of people serving life sentences after observing a large gap in adequate information or concern about expansion of long prison sentences. We now know that long-term imprisonment is a driver of mass incarceration and that one in seven prisoners is serving life. Though all states can provide aggregate figures on populations of prisoners upon request, this information is insufficient to fully understand the life-sentenced population, including shifting dynamics within the population. Going forward, simple access to de-identified administrative prison records can serve as a bridge between policy reform ideas and their implementation.

For the past 50 plus years the United States has been debating the very nature of our criminal justice system. Are we too lenient? Are we too vindictive? Do we give too much power to our cops and prosecutors or too many protections to defendants? But maybe most important, is there a better way? Can we ensure we have both safety and dignity built into our system? These questions are extremely difficult for law makers to answer because of the moral implications involved with crime and punishment, but also because of one glaring weakness: data sharing and reporting. We simply do not have comprehensive data collection systems for policy makers to draw on to design interventions that can protect public safety and help heal community wounds. While there is no silver bullet that will fix these problems, we believe attention should be paid to: 1) fixing inconsistencies in key terms so data collection can be universal, 2) fixing the issues with delayed reporting so the data we have is up to date for researchers and policy makers, and 3) addressing issues with inadequate and inconsistent data storage so not only will the data be available but assessable to those who can use it to improve the system.

Criminal sentences are rarely reversed for being too long. Of the approximately one million federal sentences imposed in the past fifteen years, appellate courts have only held about two dozen substantively unreasonable. Judges have, even in public statements, described substantive reasonableness review as “functionally nonexistent” and “a waste of time.” Against this backdrop, three decisions from the Sixth Circuit published within the last year are nothing short of remarkable. In each case, the panel concluded that the district court, despite following standard processes and procedures, had nonetheless imposed a substantively unreasonable sentence. This Article examines these cases in detail, to glean lessons for scholars and practitioners. I argue that, in each decision, the Sixth Circuit took a bird’s eye perspective to the issues at hand, reaching a common-sense decision based on aggregative sentencing data, case law, and the defendant’s prior criminal history. These factors, I further argue, provide a model for other appellate courts who hope to engage in more searching substantive reasonableness review. I also acknowledge some limits to the Sixth Circuit’s approach. In each of these three cases, the appellate court reined in district courts for imposing above-guideline sentences. The decisions, however, say little about what—if any—role an appellate court should play in mitigating harsh sentences that are within (or even below) the guidelines. Reform of such sentences may require stakeholders to look elsewhere, including either legislative reform or appointment of a more diverse set of district judges.

Data are essential for good sentencing policy. It is impossible to act intelligently without knowing what is happening on the ground. This is especially true with drug offenses, which drive a significant portion of prosecutions and sentences every year. Accessible, high-quality drug-conviction and sentencing data enable sentencing commissions and legislatures to act decisively on the basis of reason and not anecdotes. Commissions can play a vital role in understanding the decades-old war on drugs and charting a path for the future. This article provides an overview of the drug data that state sentencing commissions are providing to the public. Each state-specific snapshot offers a brief explanation of the strengths and challenges of that commission’s approach to communicating drug data.

The complex, intricate process of felony sentencing in Ohio makes ensuring clear, comprehendible sentences of the utmost import for the administration of justice and promoting confidence in the system. As such, for more than a year, the Ohio Criminal Sentencing Commission worked with justice system partners to develop a package of uniform felony sentencing documents that prescribe the most clear and concise, minimum language required to comply with Criminal Rule 32 and existing case law and establishes standardized, common data essential for identifying relationships and trends common to all felony courts. The adoption of the package of felony sentencing documents is the first step to begin standardized, aggregate felony sentencing data collection in Ohio—the Ohio Sentencing Data Platform. Sentencing data provide opportunities for robust research, including the ability to parse comparative data between counties, recognizing that community standards can drive law enforcement, prosecution, and sentencing decision-making. The Ohio Sentencing Data Platform will improve information about the people we are trying to help in the criminal justice system and has been met with enthusiastic interest and support from judges and courts throughout the state. Our modest, incremental path will ultimately yield high dividends in building public trust in criminal justice processes and outcomes. At the same time, without fiscal or administrative burden, it will help give judges and decision- makers access to the best information available to perform their public service duty in the most impactful way.

We are Ohio state court judges with actual experience in imposing and/or reviewing criminal felony sentences. We are unaware of any expressed objection by Ohio’s judiciary to having more relevant information available to a sentencing court. Sentencing discretion is conferred upon trial courts by the General Assembly through its statutory enactments, and the trial courts have full discretion to impose a prison sentence that falls within the prescribed statutory range. With such wide-ranging discretion the database will provide additional information to a sentencing judge, which will result in a more informed sentence. Justice requires that judges get it “right.” Why prevent useful, relevant, and important information from being considered by trial judges in achieving this goal? Once the criminal sentencing database is in place, for the first time in the state’s history all stakeholders, including judges, will have access to relevant information that can inform their sentencing decisions while keeping biases, implicit or otherwise, in check. This will usher in a fairer, more transparent system that we should all support. As stewards of the greatest system ever designed to resolve disputes and, therefore, as those empowered to see that justice is achieved, we can’t afford to pretend that the problem doesn’t exist. We must seize this moment and take this long-overdue step for the betterment of our judicial system and, therefore, our society.