H.R. 6234 — Introduced in House

I 117th CONGRESS 1st Session H. R. 6234 IN THE HOUSE OF REPRESENTATIVES December 9, 2021Ms. Pressley (for herself, Ms. Bush, Mr. Jeffries, Mr. Cohen, Ms. Schakowsky, Ms. Tlaib, Mr. Carson, Ms. Norton, Ms. Ocasio-Cortez, Mrs. Watson Coleman, Ms. Bass, Ms. Omar, Mr. García of Illinois, Mr. Carter of Louisiana, Mr. Jones, Mr. Cleaver, Mr. Bowman, Mr. Johnson of Georgia, and Mr. Evans) introduced the following bill; which was referred to the Committee on the Judiciary A BILL To improve the governmental process for recommending applications for clemency, and for other purposes. 1. Short title This Act may be cited as the Fair and Independent Experts in Clemency Act or the FIX Clemency Act. 2. Establishment of U.S. Clemency Board (a) In general There is established an independent board to be known as the U.S. Clemency Board (in this Act referred to as the Board). (b) Duties (1) In general The duties of the Board shall be to— (A) recommend individuals for clemency directly to the President; (B) make available applications for clemency in English and Spanish; (C) review applications for any person convicted of a Federal offense or experiencing Federal collateral consequences requesting a pardon, commutation, remission of a fine or forfeiture or restoration of civil and political rights, not later than 18 months after submission of such application; (D) maintain public statistics and records of all acts of clemency granted by each President; (E) compile research reports on relevant subjects; (F) transmit an annual report to Congress outlining the Board’s activities, feedback from applicants, and recommendations disaggregated by relevant characteristics, including age, gender identity, race and ethnicity, sexual orientation, disability, type of offense, years served, and geographical location of the individual applying for clemency; and (G) establish a process for applicants whose applications are not recommended to the President to petition for reconsideration by the full Board after rejection by a panel. (2) Priority In carrying out the duties under paragraph (1), the Board shall seek guidance from the President on any priority factors for reviewing applications. Any selected priority factors shall be included in the annual report under section 7. (c) Power To compel The Board may request any Federal agency or Federal judicial officer to disclose information, data, and reports related to any application being considered for clemency. The Federal agency or Federal judicial officer shall fully disclose all relevant information, data, and reports, including presentence reports, subject to any restrictions in accordance with the law. (d) Admission of guilt The Board shall not require any applicant to admit guilt as a condition of recommendation for pardon, commutation, remission of a fine or forfeiture or restoration of civil and political rights. Any admission of guilt in an application may not be used against an applicant in any way nor is such admission admissible in a court of law. (e) Definitions In this section: (1) Clemency The term clemency includes a full pardon, partial or full commutation of sentence, or remission of a fine or forfeiture or restoration of civil and political rights. (2) Federal offense The term Federal offense includes any offense under Federal statute or the Uniform Code of Military Justice. 3. Membership (a) Board composition The Board shall be composed of 9 members possessing significant experience with the criminal legal system, clemency, behavioral health, or reentry services appointed by the President, including— (1) an individual who was formerly incarcerated; (2) an individual who has been directly impacted by crime; (3) an individual who has previously served or currently serves in a Federal defender organization; and (4) an individual who shall serve as representative of the Department of Justice. (b) Independent members To be a member appointed pursuant to subsection (a), except subsection (a)(4), the member shall have or have had no affiliation with the Department of Justice in the 16 years prior to such appointment. (c) Terms (1) In general Members of the Board may serve throughout the presidency of the President who appointed them. (2) Vacancy Any vacancy of the Board shall not affect the powers and duties of the Board. The President shall have the authority to fill a vacancy on the Board. (3) Reappointment A member of the Board shall be eligible for reappointment to the Board. (d) Chairperson The Chairperson of the Board shall be designated by the President after all members are appointed to the Board. (e) Panels The Board may convene panels of 3 Board members to review applications and recommend individuals for clemency if 2 of the Board members on the panel are in favor of such recommendation. (f) Majority The Board shall require a majority of members present and voting to approve actions of the Board. (g) Prohibition of compensation of Federal employees Members of the Board who are full-time officers and employees of the United States may not receive additional pay, allowances, or benefits by reason of their service on the Board. (h) Compensation of non-Federal employees Members of the Board who are not full-time officers and employees of the United States shall each be paid at a rate equal to the rate of basic pay for level IV of the Executive Schedule by the Executive Office of the President. (i) Travel expenses Each member of the Board shall receive travel expenses, including per diem in lieu of subsistence, in accordance with applicable provisions under subchapter I of chapter 57 of title 5, United States Code. (j) Meetings The Board shall meet at the call of the Chairperson not less than once a quarter each year to conduct business. 4. Abolition of Office of the Pardon Attorney; transfer of functions and personnel of the Office of the Pardon Attorney to the Board (a) Abolition The Office of the Pardon Attorney of the Department of Justice shall be abolished not later than 120 days after the date of enactment of this Act. (b) Transfer of functions The functions of the Office of the Pardon Attorney shall be transferred to and carried out by the Board. The functions authorized to be performed by the office described in subsection (a) as of the day before the date of enactment of this Act, and the assets and personnel associated with such functions, are transferred to the Board. (c) Grade retention In the case of an employee transferred to the Board under subsection (b), whether a full-time or part-time employee— (1) subsections (b) and (c) of section 5362 of title 5, United States Code, relating to grade retention, shall apply to the employee, except that— (A) the grade retention period shall be the one-year period beginning on the date of the transfer; and (B) paragraphs (1), (2), and (3) of such subsection (c) shall not apply to the employee; and (2) the employee may not be separated, other than pursuant to chapter 75 of title 5, United States Code, during such one-year period. (d) Administrative head The Board established under section 2 shall appoint, in consultation with the Attorney General, a Pardon Attorney to act as the administrative head of the Board. Such Pardon Attorney shall report to the Board and be paid by the Executive Office of the President. (e) References Any reference in any other Federal law, Executive order, rule, regulation, delegation of authority, or any document— (1) to the head of the Office of the Pardon Attorney is deemed to be the Pardon Attorney appointed by the Board established under section 2, in consultation with the Attorney General, to act as the administrative head of the Board; or (2) to the Office of the Pardon Attorney is deemed to refer to the Board. (f) Exercise of authorities Except as otherwise provided by law, the Board may, for the purposes of performing the functions of the Office of the Pardon Attorney, exercise all authorities under any provision of law that were available with respect to the performance of the function immediately before the effective date of the transfer of the function under this section. (g) Savings provisions (1) Legal documents All orders, determinations, rules, regulations, permits, grants, loans, contracts, agreements, certificates, licenses, and privileges— (A) that have been issued, made, granted, or allowed to become effective by the President or any other Government official, or by a court of competent jurisdiction, in the performance of any function that is transferred by this Act; and (B) that are in effect on the effective date of such transfer (or become effective after such date pursuant to their terms as in effect on such effective date), shall continue in effect according to their terms until modified, terminated, superseded, set aside, or revoked in accordance with law by the President, any other authorized Government official, a court of competent jurisdiction, or operation of law. (2) Proceedings This Act shall not affect any proceedings or any application for any benefits, service, license, permit, certificate, or financial assistance pending on the date of enactment of this Act before an office abolished by this Act, but such proceedings and applications shall be continued. Orders shall be issued in such proceedings, appeals shall be taken therefrom, and payments shall be made pursuant to such orders, as if this Act had not been enacted, and orders issued in any such proceeding shall continue in effect until modified, terminated, superseded, or revoked by a duly authorized official, by a court of competent jurisdiction, or by operation of law. Nothing in this subsection shall be considered to prohibit the discontinuance or modification of any such proceeding under the same terms and conditions and to the same extent that such proceeding could have been discontinued or modified if this Act had not been enacted. (3) Suits This Act shall not affect suits commenced before the date of enactment of this Act, and in all such suits, proceeding shall be had, appeals taken, and judgments rendered in the same manner and with the same effect as if this Act had not been enacted. (4) Nonabatement of actions No suit, action, or other proceeding commenced by or against the Department of Justice, or by or against any individual in the official capacity of such individual as an officer or employee of an office transferred by this Act, shall abate by reason of the enactment of this Act. (5) Constance of suits If any Government officer in the official capacity of such officer is party to a suit with respect to a function of the officer, and under this Act such function is transferred to any other officer or office, then such suit shall be continued with the other officer or the head of such other office, as applicable, substituted or added as a party. (6) Administrative procedure and judicial review Except as otherwise provided by this Act, any statutory requirements relating to notice, hearings, action upon the record, or administrative or judicial review that apply to any function transferred by this Act shall apply to the exercise of such function by the head of the Federal agency, and other officers of the agency, to which such function is transferred by this Act. (h) Transfer of assets Except as otherwise provided in this Act, so much of the personnel, property, records, and unexpended balances of appropriations, allocations, and other funds employed, used, held, available, or to be made available in connection with a function transferred to an official or agency by this Act shall be available to the official or the head of that agency, respectively, at such time or times as the Director of the Office of Management and Budget directs for use in connection with the functions transferred. (i) Delegation and assignment Except as otherwise expressly prohibited by law or otherwise provided in this Act, an official to whom functions are transferred under this Act (including the head of any office to which functions are transferred under this Act) may delegate any of the functions so transferred to such officers and employees of the office of the official as the official may designate, and may authorize successive redelegations of such functions as may be necessary or appropriate. No delegation of functions under this section or under any other provision of this Act shall relieve the official to whom a function is transferred under this Act of responsibility for the administration of the function. (j) Authority of the Director of the Office of Management and Budget with respect to functions transferred (1) Determinations If necessary, the Director shall make any determination of the functions that are transferred under this Act. (2) Incidental transfers The Director, at such time or times as the Director shall provide, may make such determinations as may be necessary with regard to the functions transferred by this Act, and to make such additional incidental dispositions of personnel, assets, liabilities, grants, contracts, property, records, and unexpended balances of appropriations, authorizations, allocations, and other funds held, used, arising from, available to, or to be made available in connection with such functions, as may be necessary to carry out the provisions of this Act. The Director shall provide for the termination of the affairs of all entities terminated by this Act and for such further measures and dispositions as may be necessary to effectuate the purposes of this Act. (k) Certain vesting of functions considered transfers For purposes of this Act, the vesting of a function in a department or office pursuant to reestablishment of an office shall be considered to be transfer of the function. (l) Availability of existing funds Existing appropriations and funds available for the performance of functions, programs, and activities terminated pursuant to this Act shall remain available, for the duration of their period of availability, for necessary expenses in connection with the termination and resolution of such functions, programs, and activities. (m) Definitions In this section: (1) Function The term function includes any duty, obligation, power, authority, responsibility, right, privilege, activity, or program. (2) Office The term office includes any office, administration, agency, bureau, institute, council, unit, organizational entity, or component thereof. 5. Federal Advisory Committee The Federal Advisory Committee Act (5 U.S.C. App.) shall not apply to the Board established pursuant to this Act. 6. Adequate representation of defendants Section 3006A(a)(2)(B)) of title 18, United States Code is amended by striking seeking relief under and inserting seeking relief from their conviction or sentence, including pursuant to. 7. Report Not later than 90 days after the date on which the Board is established, the Chairperson of the Board shall submit to Congress a report on the established procedures for review of clemency applications and administrative plans related to research and any other actions the Board will be taking. This report shall include a plan for addressing pending applications, which may include augmentation of staff through temporary hire or assignment to the Board. 8. Report on U.S. Attorney charging and plea practices Not later than two years after the date of enactment of this Act, the Director of the National Institute of Justice shall complete a review and publish a report on the charging and plea bargaining practices of U.S. Attorneys’ Offices, including racial and gender disparities. The Director may consult with the Department of Justice Office of the Inspector General to secure any information necessary to complete this report. 9. Report on psychological impact of incarceration Not later than one year after the date of enactment of this Act, the Director of the National Institute of Justice shall publish a report summarizing the current body of research on the psychological impact of people who are incarcerated. This report shall be completed in coordination with at least 2 individuals who have published peer-reviewed scholarship or have expertise on this topic. 10. Severability If any application of this Act or any provision of this Act to any person or circumstance is held invalid, the remainder of this Act and the application of this Act to other persons and circumstances shall not be affected by the invalidity.