let me thank you for the testimony. we are pleased to have you before the committee and pleased to accept it so thank you. at this time we will move to the second panel. this concludes the first panels hearing and i would like to thank the representative for participating and we will take a short recess and welcome the second panel of witnesses. we will recess for five minutes.

i think we can hear you now. the subcommittee will reconvene to hear the testimony from the second panel. we will now introduce the second panel of witnesses. professor of law a former federal prosecutor and author

who is fighting for clemency and have appeared in "the new york times," "washington post" and atlantic, many journals including harvard, stanford, university of chicago and georgetown. at the graduate of the college of william and mary. a partner with south dunbar llc was a u.s. attorney for the southern district of mississippi from 2017 to 2021 and previously served as the legislative director and counsel and counsel for the constitution subcommittee of the house judiciary committee. he graduated from the george washington university law school. the professor of law at nyu who serves as the faculty director

of the law center and law cented administration's criminal law. from 2013 to 2019 served as a member of the united states sentencing commission and graduated from northwestern university to serve as a law clerk on the dc circuit and u.s. supreme court. the prosecuting attorney for ohio since the election in 2009 he also served as a legal counsel for the board of county commissioners and several other public boards and agencies. a graduate of the university school of law and president and ceo, founder and convene your of the justice roundtable who serves as the senior fellow from

the university center for justice as the director for the open society foundation and also served as the legislative and policy counsel for the director howarduniversity school of law e prison project. graduated from howard university in the george washington university law school. ms. andrea james is the founder and executive director of the national council for the incarcerated into formerly incarcerated girls and families for justice. a former criminal defense attorney ms. james is a 2015 recipient. jason hernandez was granted clemency by barack obama december of 2013. upon his release he earned his

high school diploma and founded several nonprofit organizations including at last that empowers latino students to become leaders in their schools and to help them pursue careers where latinos are underrepresented. mr. hernandez received a fellowship from the open society foundation and open philanthropy via the redemption campaign and re- raising clemency. he received compassionate release after 33 years of incarceration. mr. underwood is a senior fellow at the campaign to end life imprisonment and is also a consultant, public speaker advisor and advocate of the underwood legacy fund where he advocates the rights of producers, composers and music publishers. we welcome all of the distinguished witnesses and

thank them for their participation. i will begin by swearing in the witnesses and i asked the witnesses testifying in person to rise and ask the witnesses testifying remotely to turn on your audio and make sure i can see your faces and raised hand while i administer the oath. witnesses are not muted. do you swear or affirm under penalty of perjury that the testimony you are about to give his true and correct to the best of your knowledge, information and belief so help you god? >> i do. >> with the record show that you witnesses answered in the affirmative. thank you and please be seated. please note your testimony will be entered in the record in its entirety. accordingly i ask you to summarize your testimony in five minutes. to help you stay within that timeframe, there is a light on your table and on your screen.

when the light switches from green to yellow you have one minute to conclude your testimony. when it turns red [inaudible] you are now welcomed. you may begin your statement. >> thank you madam chair, mr. ranking member for the opportunity to be heard this morning on this important subject. i'm going to use my time to describe the broken system that we use to evaluate clemency. the pardon attorney as a part of this process but only a part and probably not the most important part. i prepared a chart of the current process and included my written testimony as well. if you look at the chart here to my life, you will see there is a green box at the bottom left-hand corner and what that represents is this is someone in prison usually preparing a petition themselves. they are going to fill out the form, send it to the pardon attorney staff who is going to

do an analysis and come up with an opinion. they will reach out to the u.s. attorney's office to get their opinion which will be given considerable weight going up the chain. once the pardon attorney's staff has the report they go to the attorney to begin independent evaluation and from there it doesn't go to the president. it goes to a staff member at the deputy attorney general's office and that's the middle blue box in the rank there. and that member will make a recommendation and it goes to the deputy attorney general. from there a staff member at the white house counsel's signs and after that it goes to the white house counsel. and only after that, after seven sequential steps does it go to the president. this is a terrible process. whether you think a lot of clemency should be granted or only a few this is a bad process for getting to the right ones and mr. ranking member on a note

in terms of the president having input and a rubric that would be controlling, having so much separation and bureaucracy between the president and the people doing the evaluation doesn't help that at all. it's undisputed that no business at least no decent to successful business would make decisions in a process like that. now this process wasn't designed in a coherent way. it grew up organically over time for example the attorney general originally met with the president to advise him directly about these petitions. but then that was delegated to the deputy attorney general who then had a staff member intercede between the pardon attorney and then the white house counsel got involved so over time as bureaucracy does, it grew up and it just doesn't work. a couple of the problems here,

one is the sequential nature of the decisions. this combines with another problem which is negative decision bias. no one gets in trouble for saying no. the risk is saying yes though if we think about this is a pipe with seven bells and they all have to be open for any petition even the best to get to the end and they are spring-loaded shut, no wonder the process doesn't work. another problem is that you have two key positions here. there are people who are generalists who are busy and one of them is the deputy attorney general who has operating control of much of the department of justice and what has happened in this process isn't just the deputy attorney general oversees the process but personal events each petition and when you have 17 or 18,000 petitions, that's not going to work. and frankly it hasn't. the white house counsel as well as course has many jobs to do and this is just one of them.

we just heard about the fixed clemency act and that would eliminate much of this bureaucracy and bring the process closer to the president's of the presidents will about clemency can be respected in a more direct way. i want to close by telling you why i care so much about this. this has become my life's work in part because they hate bureaucracy but it's also a matter of faith. work has integrity because the core value. it's also founded the constitutional pardon power. it's rare to find an imperative that so clearly is also a constitutional imperative. even though my own perspective is as a christian i know the mercy of judaism and islam and nearly every moral system whether it's religious or secular americans love freedom and we believe in mercy. we just need to build a machine that reliably can provide us with just that.

thank you. >> thank you very much for your testimony. you are now recognized for five minutes. >> thank you madam chair, ranking members of the subcommittee. i am a partner in the jackson mississippi office and before that i served as a united states attorney for the southern district. i appreciate the invitation to be here today to testify about the clemency process and the doj's office. before joining in january of 2021, not only did i serve as a united states attorney but i also had stays as an assistant united states attorney, nonprofit lawyer, practitioner in washington, d.c., congressional staffer as the madame chairwoman said, counsel to the constitution subcommittee which mr. nadler was the ranking member at the time. i'm here today to give my

perspective on clemency end of the office of the attorney specifically in my experience the former chief law enforcement officer and former federal prosecutor on the frontlines ans and also criminal defense attorney. let me be clear the views i express do not represent my firm, clients or anyone else. first, during my tenure as united states attorney i was asked by the office on several occasions to give my thoughts on the petitions for clemency that have been prosecuted in the office. i believe in the policy matter that asking the prosecutor's opinion is not only appropriate but it's vitally important and no one knows the circumstances surrounding the cases better than the prosecutor. as u.s. attorney and assistant u.s. attorney my role wasn't to lock someone up but rather as federal prosecutors to ensure that justice was done. for brevity's sake i will

summarize or paraphrase the 1935 language which said the united states attorney's interest in the criminal prosecution is not that you will win a case but justice shall be done and as such he is in a very peculiar sense of the law the twofold aim of which is that guilt shall not escape nor innocent suffer. it is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about just. thus in my role as he was a turning i recommended approval of some petitions and disapproval for others always with the mindset towards ensuring that justice was done. the doj policies that clemency petitions should only be granted and extraordinary circumstances

and clemency should be exercised rarely are the correct approaches to this issue. these approaches ensure that justice is done. a second the process for clemency entrusted to the attorney is and has been working and doesn't need revising. the attorneys in the office in my experience have always been professional, fair, methodical and deliberate exactly what we all should want and expect of those reviewing petitions of people who want out of prison. i may never have experienced any kind of bias or skewed judgment from the pardon attorney either for or against petitions, nor did i ever hear or witness any type of pressure on the pardon attorney from prosecutors or others in the department of justice. the multiple possible veto points throughout the process isn't a full but rather a positive part of the system as the checks and balances, the

multiple points of reviews are evaluating someone who has been investigated, prosecuted and convicted for violating our criminal laws and we should make sure they are not a threat to society and run all the traps necessary to assure that before releasing them back to the public. finally, there are some advocating for creating a new independent government agency to address these issues, but i believe president ronald reagan had it right when he said the closest thing to eternal life on earth is a government program. at the last thing we need is another government agency or program. and even if congress were successful in establishing this new u.s. clemency board as the ranking member has pointed out, the president has almost unlimited authority to grant clemency so there would be no authority requiring the president to use, rely upon or defer to this new government agency. in conclusion, the clemency process today is not perfect but

it works relatively well considering the resources of the office of the pardon attorney and the professionalism that office exhibits. clemency should be granted only in rare extreme circumstances and petitions should continue to have many levels of review before they reach the president's desk. if the president wants to expedite the process, he has more than enough authority to do so -- >> that gentleman's time is expired. those who want to defund the police and not enforce the criminal laws are only further increasing the rising crimes throughout america and make america less safe. thank you. >> the time is expired. for the record let me make sure that mr. hurst's full name is correct. thank you for your testimony. i now wish to recognize the

professor for five minutes. >> thank you madam chair, for mr. ranking member of the subcommittee i'm honored to testify before you today. as you heard there are approximately 18,000 clemency petitions awaiting answers from president biden almost 15,000 our commutation petition seeking relief from sentences being served right now and another 3,000 requesting pardons. unfortunately clemency appears to be a low priority for the current administration. a backlog of 14,000 petitions and instead of urgently addressing it, the backlog has grown by more than 28%. it's hard to overstate the level of mismanagement responsible for this unconscionable backlog. these people, many of whom have been waiting for years deserve answers to their petitions yet the administration has done nothing to suggest any exigency of the situation. it hasn't changed any aspect of the process that created this backlog. president biden granted a 78 so

far, three pardons and 75 commutations leaving 99.6% of the rest of the petitions and their holding patterns. it's not just the number, but the nature of the grants that show how narrowly the administration is viewing this power. most of the guarantees were already released to home confinement under the cares act but it's hard to see why only a few dozen people released under the cares act merited such relief instead of all of them as a categorical matter. the administration also noted its recent grants included individuals who would be sentenced differently today under laws like the first step act with shorter sentences but here also the administration granted a handful of the cases out of the thousands just like them. if this were in any area of government responsibility there would be alarm bells ringing about the ineptitude of those in charge but because clemency fails to get the attention it deserves from the press and public officials those calls haven't come as loudly as they should but make no mistake the

failure to take drastic actions is presidential malpractice. in my testimony to you i've urged congress to use its legislative authority to create other mechanisms, preventive sentences from occurring in the first place and create an expungement option. congress can also use its authority to improve the clemency process itself and can't dictate how a president should exercise the constitutional power of clemency but can provide funding and incentives for the needed institutional changes. the president relies on a process in the office of the pardon attorney as you heard and that is funded by congress. congress could fund a separate advisory board that exists outside of the department to provide advice on clemency. taking clemency out of the department of justice would address the bureaucratic duplication the professor described and that is responsible for much of the hold up and petition processing and

it would also address the fundamental conflict of interest having the same agency that prosecuted the cases reviewing them for clemency. the structure that has resulted in egregiously low clemency grants in the presidential administrations. congress can't require a president to use that word but y designated to stream for the clemency board would signal the broad support this idea has and it would be more likely that it would be consulted. especially when a president like president biden has already indicated his desire to do this and part of the unity task force. while the proposal doesn't have to mirror the one in the clemency act that is one option for making the change. setting up a permanent board but a second best scenario would be to create a temporary board to deal with the clemency petition backlog. president ford used a temporary board to address cases associated with the evasion of the vietnam draft and that could be a model for this approach. a less effective strategy but better than nothing would be to

increase dedicated funding for positions in the office of the pardon attorney. 80 have been approved but not funded because of the continuing resolution. the reason this approach is less desirable as it would address only delays from initial reviews in the pardon attorney's office when a reason for the backlog is the failure of the deputy attorney general and white house counsel's office to act. we know in fiscal year 2020, 63% of the pending petitions were waiting decisions by the white house counsel. they had already been processed through the attorney's office, so the board outside would also be the preferred approach in my view and i urge congress to do that or take other measures to replacement mechanisms for clemency. thank you for allowing me to testify and share my thoughts and i would be happy to answer any questions that you might have. >> i think the gentle lady for her testimony and recognize the attorney for five minutes.

>> good morning, chairwoman, ranking member and members of the judiciary committee. my focus today is i want to take a pause or i hope the committee will take a pause and think about public safety and the impact on local communities. i am the elected prosecuting attorney for the county in ohio and first served as assistant prosecutor back in 1985 before being elected to my current position in 2009. i'm a past member of the district attorneys association board and also past president of the ohio prosecuting attorneys association and proud to add prior to this i served as a police officer for several years. i think it's important that i am compelled to note today's testimony is being submitted on the heels of national police week. time to recognize and salute the entire law enforcement community. i would like to echo and support

the comments of my colleague former prosecutor hurst. during my career and i'm coming from the perspective of a local front-line prosecutor, i prosecuted over 5,000 felony matters. i worked extensively for 30 years with a multijurisdictional narcotics task force. we are situated in northwest ohio and although the community is relatively small we are in a situation where we often are at a crossroads for drug trafficking and other offenses coming through and around the community from larger metropolitan areas. this is a dangerous and i'm sorry to use the old cliché but this is a slippery slope into to and tothe extent that we allow o continue in this direction, we are going to be compromising public safety. as the committee exercises its oversight role with respect to

clemency and the pardon attorney i'm compelled to express concern regarding the likelihood that increasing the number of offenders being released or anticipated to be released we really need to take a serious and nonpolitical, apolitical look at the impact on public safety, on state and local law enforcement and the available resources. many offenders being released committed very serious crimes. i certainly wouldn't dispute that there are some wonderful success stories that have been referred to in the earlier testimony and anecdotally those are there and that's wonderful. the reality is there are already and likely to be substantially many more stories that are more tragic. the reality is that offenders involved in this level of serious drug offenses have been connected to the drug culture

for a long time and while we can talk about elderly prisoners were ill prisoners, the reality is we are going to see many 20, 30, 40-year-olds that are more likely to be granted clemency if we loosen up the process. this policy is coming at the time that we are seeing a major spike in serious crimes, increasing and staggering numbers of drug related deaths coupled with an effort by some to redirect law enforcement resources away from what the first priority should be and that is public safety. there is a common misconception that offenders convicted of federal drug laws or any drug laws for that matter are nonviolent offenders and the reality is this culture lends itself to violence. the business model itself is full of violence. the use of violence and

intimidation as part of the business. we have a widespread distribution system throughout this country that's putting large amounts of drugs on the streets of all kinds, dangerous and deadly drugs. some of these even though small amounts may show up in communities like mine, they are coming through this distribution process. offenders released that have been involved in the process common sense would suggest they are likely to get back involved. money drives this, lots of cultural issues come into play. you are shifting the burden to local law enforcement and state authorities. crimes will be enforced, drug laws will be forced at the state level and a if you shift with the federal enforcement system can do and they hold offenders accountable you are going to shift the burden to local communities. i appreciate the opportunity to speak and i come from the perspective of franklin

prosecutors and public -- >> the time is expired. now i recognize ms. zkechi. >> you have my written testimony so i will spend my five minutes focusing on two issues thus the need to consider clemency for categories of people in general shining a spotlight on that of quote on quote, elderly prisoners and second the issue of posthumous pardons. if mass incarceration is ever to be evaded it is critical that intentional steps be implemented that expand the number of people eligible. individual commutations are not enough to tackle the enormity of this challenge.

in addition, it is considered on a case-by-case basis a categorical approach to releasing groups of deserving candidates must be seriously considered. at the beginning of the administration the roundtable issued a report transforming justice and in it we outlined some categories that it could include such as those that had unsuccessfully petitioned for compassionate release, elderly prisoners, those serving sentences that have been deemed unjust but not named retroactive, those serving excessively lengthy sentences as a result of exercising their constitutional right to go to trial euphemistically known as the trial penalty restricts the sentences of people convicted of marijuana offenses and in deed a campaign to that effect.

to those that are political prisoners that remain federally incarceration also be granted clemency. the report stressed because a an individual fits into any of the categories it is critical the focus be on who the person is today and any postconviction achievements they have obtained as opposed to the conviction of record. the category i wish to highlight at this time is those who would sentence for offenses committed prior to november 1987 for the u.s. sentencing guidelines. together these people refer to it as among the very oldest and longest incarcerated in the federal system many of the late 60s, 70s, 80s and have underlying medical conditions

and pose no threats to public safety. presidential clemency is the only report. the u.s. commission engages because of exclusions from the first step act no one sentenced is eligible to turn to the compassionate release unlike any other federal prisoner creating a presumption for the category for both of the inaction of the commission as well as congressional oversight and omitting from first step reform. the second issue i would like to highlight is that of the posthumous pardon. while there is no question that those are most beneficial to those that are living, there are times in the planting of exceptional are important and necessary to show the values of the past are no longer the values of the present. it is across party lines for the

posthumous you before bush, clinton added the trump and thep administrations have issued posthumous pardons try outlined in my written testimony. for the early 20th century civil rights leader marcus garvey has been a multi-decade effort to right a wrong committed by the government nearly 100 years ago in the support of millions. calvin coolidge recognized the case in 1927 and despite the commutation his name is tarnished by the stigma of his conviction. his son, doctor garvey and other son testified before this judiciary committee in 1987. others have issued resolutions highlighting the accomplishments as a human rights leader and calling for his exoneration so in conclusion, the president

uses the tools in the toolbox with respect to clemency and we thank the committee for examining the issues. >> thank you and now ms. james you are recognized for five minutes. >> good morning and thank you madam chair and mr. ranking member. the council for incarcerated women and girls is the only national advocacy organization founded and led by incarcerated and formerly incarcerated women and girls. organizing began in the federal prison yard with a group of women including myself who wanted policymakers instituting criminal justice reform to hear the voices of the formerly incarcerated people. those who understand the harm the current system inflicts and have the expertise to create an alternative system that recognizes each person's humanity as formerly incarcerated women we believe a prison will never be the place to address the economic and

psychological reasons women end up in prison. prison most often causes further social and economic harm and does not increase public safety. the prison experience increases trauma and women and if they are mothers to the children they are separated from. it deepens poverty and the individual lives of incarcerated people and the overall economic stability of their communities. although the long-term goal is to end of the incarceration of women and girls we are also working to address conditions of confinement for those living inside of prisons. we support women seeking compassionate release and work to raise awareness of the horrific conditions in the prisons and jails and we support women seeking clemency. in the past several decades, clemency has become politicized. it's the notion that it's against wrong and clemency as an executive power that is enshrined in the constitution. justice rehnquist called it a

failed safe of our legal system. it's been the foundation of justice since ancient times. the idea that granting clemency as being soft on crime is wrong. clemency is based on and an analysis of who the person is today, not what they did years or decades ago. people who have educated themselves, aged out of crime, are ill or elderly do not need to be in prison. there incarceration is not punitive, it is vindictive. clemency is empathy in action. anyone who claims to empathize with incarcerated people must support clemency for those who made decisions in difficult times and have grown and left their mistakes behind. average americans understand this. 62% of the voters recognize reducing prison populations would strengthen communities by reuniting families and save taxpayer dollars that could be

invested in communities. clemency rebuilds families fixing the harm caused by the family act, two thirds of people in custody have minor children that means 65,600 mothers are in federal prison unable to raise their children. put another way that is 1.7 million children whose mothers are absent due to incarceration. the situation however is even more heartbreaking than that. every tenth mother will never see their children again even after they are released from prison. approximately 11% of incarcerated women cannot leave their children with family members and fuss end up in the foster care system. the adoption and safe families act of 1997 limits the amount of time any child may remain in foster care although creating an environment for children that's

desirable to require states to terminate parental rights and place children in an adoptive family. this destroys the family of an incarcerated mother who couldn't place for children with a spouse or family member. clemency rebuilds families fixing the harm caused by conspiracy laws and conspiracy prosecutions are a major weapon of the war on drugs that disproportionately harm mainly women and people of color. the hoarder caused by conspiracy laws can be best illustrated by the tragedy of michelle west who is serving a two life plus 50 year sentence for a murder. my time is short. i do want to say conspiracy laws are a toxic remnant of the warrant must be reformed. the only way to fix the injustices reform the conspiracy laws to bring them into compliance with the basic principles of due process and last i do want to point out that there are several women who've come home who were granted

clemency who've done a remarkable contribution to the communities. 1 of them is here with us today. danielle, the director of clemency at the national council, sentenced to serve three life sentences plus 20 years in the federal system. her sentence was commuted and she's made remarkable contributions and an example of what happens when we grant women clemency. thank you. >> the gentle ladies time is expired and i now recognize mr. hernandez for five minutes. good morning. members of the committee i am deeply sorry that i cannot be there today addressing clemency reform. thank you for allowing me the opportunity to speak. my name is jason hernandez and i would like to tell you who i was. i was a drug user since the age

of 15 and i was indicted by the federal government for distributing crack cocaine and sentenced to life. i was a prisoner and in prison i was a jailhouse attorney. 13 years i wrote a letter and petitioned [inaudible] december 19th president obama answered my prayers by reducing to 20 years and i would find out in 2018 president obama received my letter and he read it. president obama helped 500 who are serving life without parole. he showed good grace, mercy and willingness to exercise his power as has been done by other presidents of the united states. president abraham lincoln issued 64 pardons to federal soldiers.

president johnson with officials and voters after the civil war. president jimmy carter granted to hundreds of thousands. in 1971 the united states began a war called the war on drugs and at the commencement millions had been arrested, charged, indicted and a majority of which were latinos were african-american. they've exercised the power to pardon people and an act related to war by the united states. some were deemed controversial and some necessary. the war on drugs, controversial, necessary could be arguments for both sides. what we do know is it was a war that wasn't thought out, was racially biased and has heard black and brown communities more than its helped them and at times we've needed sidewalks,

roads, better schools we got more prisons into the time we need mentors and teachers we got more police. acknowledging the war on drugs as a failure and should come to him and. former supreme court justice anthony kennedy stated to the bar association in 2003 people confident cannot be ashamed of mercy and i hope more lawyers [inaudible] give him another chance. a prisoner is a person and a family with humankind. earlier i stated who i was. since released from prison let me tell you who i am a criminal justice reform or and founder. i've contributed to a dozen individuals being released from

prison nine of which were serving life without parole. i'm an author has written a book called clemency now helping people with a clemency petition. i'm the 2017 chamber of commerce leader of the year and the 2018 volunteer the 2021 leadership alumni and also the champion of justice. i'm also the founder and executive director of the leadership program for latino high school students. through clemency i am once again jason hernandez. i hope and pray for the legislation to transform the focused clemency system and address the mass incarceration and continue the necessary steps. there are more prisoners like me in their with this legislation

we can free them all. thank you for your time, god bless you all and this great country. >> thank you very much mr. hernandez. mr. underwood you are recognized for five minutes. >> i first want to thank the chairwoman jackson lee and the ranking member and members of the subcommittee for holding this hearing today for sharing the space to hear stories about the importance of second chances for families like me and mine. my name is lee underwood, e68-year-old fellow with the project campaign to end of life and imprisonment. 50 years ago i was a teenage father in harlem that needed to provide for my family and that there was one way to make fast money to ensure my child didn't go hungry like i did. the impact on the war on drugs and beyond my community and at

the racial injustice at its heart i was sentenced to life without a possibility of parole for leading a violent drug operation now in the 70s and 80s. during my incarceration i committed myself to growth and had no infractions in the years. my children became steadfast advocates for my release and in the fall of 2014 president obama announced the clemency initiative for people sentenced under mandatory walls. my petition received support from entertainers, musicians and leaders, reformers, conservatives, sports figures, civil rights leaders, scholars, people my med in prison and most of all my children. president obama ultimately commuted those of federal drug crimes. i was not one of them. instead of following the passage of the first step act i was granted compassionate release in january 21 of 67-years-old.

they cited letters while in prison they said i created a culture of responsibility among the men around me. since my release i've worked to create a second chances for others. i wasn't an outlier in prison. many more people like me are in federal prisons and many who are older and sicker and have been denied clemency and compassionate release. clemency is valuable and should be available to all people who can safely return regardless of the crime or sentence it should also be granted far more frequency but should never be someone's only hope or freedom. there are three important ways congress could create more second chances. first, congress should pass the first step implementation act. the first step act reduced mandatory minimum sentences for drug offenses but wasn't retroactive. first step implementation act

would fix that in equity among other provisions it would allow courts to give a second chance to individuals who've served ine years for crimes they committed. the detention act would also help to reduce excessively lengthy sentences by expanding release opportunities for elderly or terminally ill individuals and give compassionate release eligibility to people sentenced before 1987. the bill also includes urgent provisions to protect the lives of elderly individuals by adding covid-19 vulnerability is the basis and shorten the judicial review process for early release. second congress should transfer the jurisdiction of all the

individuals in the federal courts so they can receive a meaningful opportunity at parole. people sentenced before 1987 are entitled to parole hearings every two years and people age of crime and individuals are elderly and have low risk recidivism few people receive parole. in 2021, a u.s. parole commission granted parole to less than 20% of individuals received hearings despite the emergency and federal prisons. we believe the courts are better equipped. to reevaluate whether they should go home would give all people in the federal prison system a chance to have their review after ten years. receiving the second chance shouldn't be an extraordinary event. if we would believe in redemption in the rule of law and acknowledge the criminal justice system has been biased or too harsh, it should be

routine. my story shouldn't be read. i urge you to consider all the men and women like me and remember their dignity, worth, and vulnerability that they grow old behind bars and give them a path forward. thank you. >> thank you very much mr. underwood for your testimony and thank you for all of your statements, for your opening statements and contribution to the hearing. we will now proceed under the five minute rule with questions and begin by recognizing myself for five minutes. it is important to realize how many people we had incarcerated and the desire for them to start a new or contribute to society. help us understand the impact of

soliciting the local prosecutors and getting that considerable wait for someone that's been incarcerated. can you explain that concept of interest and how other models would prevent that conflict? >> thank you for that important question and one thing i want to make clear is i don't think anyone is talking about cutting doj out of the process where they wouldn't have a voice. it is important that they have a voice and people know what the imperatives are. however i will say this about going back to the local prosecutors. there is something the prosecutors know and that is that there is a deep commitment to work and that is a good thing because when i am asking for a sentence i'm standing 20 feet away from someone saying i want

that person to mr. childs wedding [inaudible] there's a deep commitment that person has and it's tied to the moment of the crime and it doesn't take into account how people change over time. these petitions are often 20, 40 years later and that commitment doesn't account for some of the change we've heard here. >> tell me why you support the creation and i have other witnesses i want to question. >> i'm in favor of the creation of an advisory body out of the department of justice to

alleviate that duplication of effort and get rid of some of the bureaucracy and it won't have the same conflict of interest and the people appointed by the president could have relevant expertise in the kind of questions that come up with evaluating how that person is today and three because i think when you have a specialist body like that it can be more efficient and get more petitions processed more quickly and they can be a good resource for the president. i don't think this replaces the president's authority. i agree it is within the prerogative to grant or deny about what it would do is provide better sources of information and inefficient process as opposed to what the president is getting now which is effectively nothing and a back log of 18,000 people. they are not getting a yes or no. they are just sitting in some kind of purgatory creating an advisory board would cut the tape and give the president better advice.

>> i think we started out by hearing that all we might be doing is adding to the criminal element and creating danger and i do want to pay tribute to law enforcement. we do want to be safe. you made a point after working with incarcerated women many of them have conspiracy charges that impact women in the system who are given [inaudible] in many cases would you comment on that and that it would be a contribution to society, not a detriment? >> thank you. i would like to comment on that. i am a former criminal defense attorney defending women, children, men and eyes served a sentence in a federal prison but

for clemency, but for conspiracy and the federal prison system the majority of the women who were currently incarcerated in the federal prisons would not, could not justify the prosecution indictment and sentencing at the sentences received. conspiracy is something we must take a deep look at. we've been doing a research study with incarcerated women in the federal system and it causes harm desperately in practice impacts womenparticularly womenn separating them for unconscionable periods of time for sentences that otherwise could not be justified. >> the gentle ladies time has expired and my time has expired. it is now my privilege to yield to the ranking member for five minutes. >> thank you madam chair and to the witnesses for being here for

some informative testimony. i want to go back to my opening comments and try to address this with how i see this. i appreciate the diagram that you've put out there and i read your statement and i find it interesting as well. we have a short amount of time so i'm going to keep you on a short leash but i do want your responses to this because when you talked about this, both of you, and i wrote down creating a system outside the system, i get it this is the system as it currently sits. but the president controls the system and i think we would all agree to that. if you create a system outside

the system are you not just not sticking another box on the board? that would be my concern if you really want to treat me like this -- and i will go to you first. >> there is no guarantee that's not the case. you can't force the president. i do think though it wouldn't work out that way because this president has claimed that he wants to create a body outside the department of justice he just hasn't done it and i think congress creating something like this the idea would be having the agency set up as more of an advisory board and it would sell itself because the president would find it to be useful but there is no guarantee and you could decide i don't want to use that i want to stick with this. >> i hate to cut you. >> we hope the president would not make that bad choice.

>> the president doesn't pick everybody in the chart. he certainly pics from the deck and is sometimes happy with the choice and sometimes not. >> but he could change that rubric today and he's approved only 78 clemency's. we have seen after president obama left he had 13,000 in the pipeline and 14,000 under trump. any president they are the ones that could change the systemic -- the constitution gives the individual one authority to clean up the process and we may send a signal from the congress and i would suggest that those

are set for multiple administrations so how do you avoid putting another box there to give some other questions answered? >> when the president sets a rubric that says i want these people outcome of the system has done terribly. we had president biden saying i want people -- >> i get it i think everybody sitting at this table would say the rubric might have some real issues and i want to get to you. roll to roll do the actual victims of violent crime because we have about 80% of everybody that's in federal prison is requesting clemency so what role does a victim of violent crime have in this current rubric or should have in the clemency decisions? >> my perception is the

difficulty is how you define victim. talk to a mother who is 20-year-old son died of an overdose drug that mother is a victim. i keep hearing the term bias from the side of prosecutors but a number of the panelists and people in the process come from the offenders side and where do we balance -- >> i hate to cut you off. i want to get to mr. hearst. hurst.you've experienced this h sides. where does the victim fit into the process? >> the victim should fit into the process. it's to prevent people from becoming victims so yes victims

should have a role in the process just as when we prosecute federal crimes have a coordinator in every office and consult with victims when we prosecute cases. >> thank you, madam chair. >> i recognize the chairman of the full committee for five minutes. >> thank you madam chair. because the federal system lacks expungement opportunities for individuals the only relief they can get from the collateral consequences is the clemency process. can you explain how the lack of access to clemency along with burden of conviction prevents successful reentry and reintegration? >> yes and part of the reason is i run a clinic at my school we represent for people with pardons. we know what it means to them. every case is going to be different but it may seem

mundane but there are petitions for people that want to go hunting with their grandchild but they can't possess a gun. that may seem like a little thing but it's a big thing to their grandfather. some can't get a license to do the job they want to do and more importantly many people just want to feel whole again and feel they've moved past. that is what pardons can do. unfortunately the system serves pardons even worse. >> why do you say it serves pardons even worse? >> during the obama presidency and biden presidency there's been an emphasis and because the bandwidth is so thin when they are focusing on the

commutations. >> you discuss the possibility of removing the clemency process from the department of justice. can you explain how that would address the barriers and increase relief for individuals on clemency? >> it would effectively get rid of that chart and then the president makes the ultimate decision and could tell the advisory body how it wants to run. it could say these are the cases i want to prioritize and i want you to look at petitions in favor this category or that but you would have a dedicated board that is supposed to just do clemency. you have one office that is woefully understaffed and then it has to go to these other two places where the council and the general are prioritizing other

things so placing the advisory board if it is designed for clemency gives the benefit of efficiency and takes away any kind of bias from the agency that brought the case. you discussed the need for clemency that led to mass incarceration. how can improving the clemency process with racial disparities in the criminal justice system. it is through categorical clemency is looking at groups of

people because mass incarceration has been so massive. the solution needs to be massive as well. we talked about the clemency's. to correct issues and heal the nation because that was a very controversial time. >> that was a categorical clemency. >> i'm talking about various classes of people.

before the sentencing guidelines went into effect they don't have any clemency as basically the only avenue they have for relief they have no benefit from the first step act compassionate relief processes and the parole board has been not effective. >> thank you madam chair. appreciate all the witnesses and put today. i heard a member of congress shortly after i got here when the discussion in the committee was about the unfairness of having so much more severe

sentences for crack cocaine as opposed to powder cocaine. and we were told that that was racist to even half that. dan lundgren pointed out, and i went back and pulled up some articles and found out he was right when the extraordinarily higher punishment for crack cocaine was passed through the committee in the house there were members of the caucus that said if you vote against this, then you're in favor of destroying the community, that it's a poison to the community and we have got to have these more severe sentences and so.

most of us didn't see any reason for that kind of disparity. it doesn't necessarily mean that we are going to have a solution to the problem some spend time agonizing over all the details in that report in trying to come

to the right conclusion and then to have some committee come in and say we don't know anything about this case but we are going to come in and address that sentence. it was in agreement and we won't include the gun charge so you will get a lighter sentence. these are things that are considered at the trial court that don't get considered when this body comes in and says we are going to have a blanket adjustment to sentencing. there's been a good deal of criticism i would encourage us

others on the committee to please join with me. when you have the same commanding general. then the general gets to pick the people that will be on the jury and the jury doesn't even have to be unanimous. it's a problem and we've had a lot of unfairness in the military system and i know that isn't what anybody here is about. but when we take a look at the unfairness and the justice, that is a grave unfairness and actually president trump didn't

get everybody that should have gotten a pardon on the finest tires i've made with somebody that was treated that way in the military justice system and he now works for me. he didn't get a pardon but he is brilliant and he is going to help us make these changes. the gentleman's time is expired. i now recognize the gentle lady from pennsylvania for five minutes. >> thank you, chairwoman for holding the hearing today and for all the witnesses for being

here. the effort led to jointly with a host across the ideological spectrum for the mandatory minimum sentences in that the pt we trained hundreds of lawyers across the country and joined them in screening thousands and hundreds of clemency petitions with individuals that had a rigorous criteria consideration and claimed for 29 individuals and i think their stories could help inform the conversation with some of the rhetoric and fears about these individuals one of them was michelle miles who was represented by the former law firm.

with a look at the incredible impact clemency could have but i also know thousands were left unaddressed when president obama left office choosing to prioritize clemency. a current process can be burdensome and efficient and underutilize the subject to abuse. it sounds like there are ways we can improve the clemency process and ensure the president can effectively implement this important tool. yesterday i joined the congresswoman and two of our colleagues representative joyce

and armstrong we can better understand its impact on the communities and we know there are over 17,000 pending stuck in that backlog. can you give a sense of who the applicants causing the backlog are and do many of them meet the criteria established? ..

>> . >> and found there were thousands of people who met his criteria and under that process the other thing we know is there are thousands. i tried to get it from bop to have been released under the c.a.r.e.s. act. they were already released under confinement attorney general bill bar did that if they are declaring the emergency is over. so that's another large group of people that is in there than a lot of people under mandatory minimums the judges had no authority.

their hands were tied and they would like to see those people because they actually were not the product that they were mandatory minimums and were triggered by the conviction and that is it the judge cannot do anything about it. those were some of the people they have families and loved ones they served their time many like mr. underwood who have unblemished records and then they are just looking for a chance to get a second chance to show they are no threat to public safety. >> doj left the resources that there is a potential for conflict of interest. can you say briefly? >> the gentle ladies time has

expired. >> i request unanimous consent to enter into the record those who receive clemency from president obama. >> without objection so ordered. >> thank you for your courtesy. >> . >> thank you madame chair it's good to have you here and mr. underwood it's good to have you here. you cited president for that to set up a panel that he could do this a few months to? >> can they reprioritize this

and then we want to see those expedited. >> president obama effectively tried to do that until the department of justice and to have that machinery to crank out as a bureaucratic mess and it's hard to oversee that the

best thing he could do is to give the department of justice very clear categories and that is the most effective way. >> i'm glad you brought up the bureaucracy because we will comment on that later. >> i say your name correctly. so talk about that clemency do you thank you have a broad class of people to be given clemency? >> what i am talking about is that presumption for specific targeted categories of persons. is not just to get out of jail free but the presumption that and with a certain amount of time and those that complied and then to rebut that with

the prosecutor those that can be expedited. >> we have to be mindful and the governor who named his commission just recently to parole someone.

and of the brutal murder and the family was outraged that they were that the person loose. so you have to be very mindful of the victims also. and then those to go on a simple possession charge quick. >> i do have that in front of me. >> can you answer the question how often disability go to prison for a marijuana charge quick. >> . >> almost never only large quantities with the trend across the country as it relates to cannabis there is less and less emphasis we are inundated with other more serious drugs. and it's rare to see that. >> one of those unintended consequences what is that to make this change. >> that the president can just ignore it we just create more bureaucracy and to put more people on the federal dole and then sending out for no apparent reason. >> i am so glad you brought this up because we see it everywhere in the federal government so to talk about natural resources. and then to double the number of the people that are in the way it happens all over the federal government we need to fix it. so glad you bring it up. >> . >> and now the congresswoman from missouri.

>> and for that crucial hearing but that collaboration on such an urgent issue that has been a top priority for me after months of urging them provide a clemency to 78 people and i was proud those residents of st. louis and of that executive authority and the redemption rehabilitation as core values. and then they.

these are family members and friends rather than that to all of redemption this was for nepotism and corruption it was afforded to the rich and the powerful and then with the authority to put humanity over greed and justice over violence in righteousness over corruption 65600 mothers are in federal prison unable to raise their children leaving one.7 million children behind they will never see their children again even after released from prison

how does that impact black and brown communities thank you and think for your support for women in the federal system and then with the stroke of a pen. those currently incarcerated at 11 and 12 years old throughout the federal system and those you have met in conversation it is not an anomaly it is so common in the federal system and after 23 years in a federal prison the children grew up without hair on —- without her. because it requires they remove custody of parents and did not take into consideration the fact that many would be incarcerated women. 85 percent and we must do something to recognize that further harm and trauma to separate mothers with children women going on the 29th year of conservation never with an infraction and they had come before this committee and the white house to bake for a second chance for her mother. that is a huge tool to help us to help to reunite and heal

families. >> you talk powerfully to be unjust but wrong so why is it so important to exonerate those that are victims of prosecution quick. >> it is so very important because there has been so many justices on —- injustices in the markets will be served to unite people and the world as well and targeted by the government talking about his predecessor and the bureau of investigation of j edgar hoover and the trial was issues and even the president at that time calvin coolidge agreed but that did not remove

the stigma and doctor garvey were seeking to restore the honor of his father for the currency all over the world people have been honoring him many leaders around the world. >> i yield back. >> thank you very much. >> let me acknowledge if there are any others in the room quick. >> i would like to speak.

>> i can yield five minutes. >> madame chairwoman there's no doubt in my mind for those that were incarcerated unfairly or over incarcerated and have served their time and they have been punished enough and should be released so they can lead productive lives. with that said clemency is a tool of the executive branch of congress. we need to take this opportunity to think about what we could do to fix these problems i don't think that mask clemency is any more than a mandatory minimum it is a one-size-fits-all but i do think there should be more clemency and consideration on an individual basis miss james you mentioned conspiracy this

is a way to prosecute somebody who has not committed a crime. what we have to do is have a result in congress not to pass more conspiracy laws. but we are doing it every year. but it's not easy. the anti- lynching bill has a conspiracy clause in their so you could convict somebody who's never been involved in lynching somebody and for are talking about it. and then for the colleagues to vote also mandatory minimums.

we don't let the judges have the discretion and it is hard politically for my colleagues to vote against this next trafficking bill emily because the internet site was used for sex trafficking and the single moms if it's not everything on the up and up that she has to feed her kids why does she deserve ten years in prison when the person who is committing the crime gets exactly the same sentence?

read the bills. and offer amendments and to take out the mandatory minimums then surveying a double life present a website called silk road. and at 26 years old is now it

will be the tenth anniversary he was an eagle scout he doesn't claim he was innocent and knows now it was a crime and to be a productive member of society i would like to submit for the record to remind people that he was never prosecuted and no victim was named in his trial. thank you nailed back the balance of my time. >> .

>> i will forgo my concluding remarks. that warrant this response of

a clemency but there was bipartisan support so as i conclude submitting for the record who was an army officer of mistaken identity and sexual assault then government bush and with an attorney those that are in need. and then in addition they are all individuals did not

contribute to crime that society making an economic contribution we must recognize to be convicted and incarcerated very quickly to tell a powerful story. >> im to make me whole again whether to hold public office or rent an apartment target certification or license. >> . >> you're a different person

today than you were before? >> yes. and then to have life or freedom that i was not that 18 -year-old kid who sold drugs. >> let me quickly go to mr. underwood can you explain how clemency can write the wrong which is the lack of options? yes they are horrible but there were no options. >> can you look at sentencing

resentencing is not get out of jail free but the district court judge that they are not who they were when they came in many years ago and then to contribute to society. >> so let me add to the point very quickly that many persons fighting social many persons fighting social ills were caught up in the criminal justice system. he deserves a response of a pardon. is that your view? >> i say absolutely yes. he definitely deserves a prodding. we need closure to that.

>> i thank all the witnesses. we must do something for this process, this oversight hearing was not a first step but a comprehensive step. we need to meet with the department attorney. and reform the process immediately, for mothers and fathers and people who are seeking to do better in this nation. all the members who participated that it concludes today's hearing, thanks for our distant which businesses were attending, all members will have 5 legislative days for written questions for witnesses and additional materials for the record and this hearing is adjourned.

[inaudible conversations] [inaudible conversations]

[inaudible conversations] >> i house subcommittee on financial inequities for people with disabilities. including those dealing with long-term effects of covid 19 live, then on c-span2 the senate is back at 10 a.m. am to consider judicial and executive nominations including darrell linton bomb to be a member of the federal election commission. and other streaming on c-span.org, in the morning a house panel looks at ways to strengthen us clean occasion networks and the climate crisis committee examines the effects of climate change on the food supply chain.