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PARDON CHIEF AIMS FOR TRANSPARENCY IN OPAQUE DEPARTMENT OF JUSTICE PROCESS
When Liz Oyer, the first known former public defender to lead the Justice Department’s pardon office, arrived in April 2022, she moved in a collection of 22 framed photographs of women serving life sentences. Oyer then commissioned a formerly incarcerated sketch artist to display around 350 copies of his black-and-white profile portraits of fellow inmates he’d originally drawn in the prison yard.
The sketches form a grid blanketing the entry hallway of the Northeast Washington office space. The photos hang on the communal wall outside Oyer’s private office, showing women in their natural prison environs—the mess hall, library, gym, and nursery—with expressions of contempt, stoicism, and tranquility.
Her team, which has more than doubled to 43 under Oyer’s watch, can look up at the faces of those pleading for a second chance. They can read the inmates’ handwritten notes displayed below the photos.
“In the beginning I felt as if my life was over,” reads one from a woman sentenced at age 16 to 20 years to life, pictured now as a 23-year-old in her prison library. She now has a new belief: “I will be free.”
Oyer’s staff reviews some 8,000 pending applications for early prison release or overturned convictions. The masses of faceless applications can make it easy to forget their mission is rooted in humanity.
“I always remind my team, ‘We are not making widgets,’” Oyer said in a recent interview at her office.
Converting her wing of a drab federal complex into a museum of compassion is one of multiple ways Oyer, 45, has tried maneuvering within strict boundaries to transform the functions and stature of a unit that’s felt out of place in a department led primarily by prosecutors. She reports up to a deputy attorney general’s office filled with career prosecutors who can reject her suggestions to grant clemency before they reach the White House.
“I wasn’t sure as somebody who was coming from a public defense background and not having worked in DOJ previously how it would be for me in this building,” said Oyer, who was also previously a partner at global law firm Mayer Brown. “And it’s really turned out to be a wonderful opportunity that has exceeded my expectations.”
Although Oyer has told allies during an active public speaking campaign that she’s working to elevate her office’s influence in broader DOJ policy discussions, some advocates see President Joe Biden’s limited embrace of clemency thus far (13 pardons, 124 commutations) as a telling sign.
“The metaphor is pretty strong that we’re talking about people who are literally confined, and there’s a way in which Liz is confined by the structure of this process,” said Mark Osler, a leading clemency scholar and law professor at the University of St. Thomas.
The outcomes of the petitions the office endorses take on heightened stakes in the president’s final guaranteed year in office. If Biden loses re-election in November, he’d have a chance to follow the model of past presidents in signing most of their clemency grants on their way out. But a Trump victory would portend a setback to Oyer’s efforts. In Trump’s prior term, his aides set up an informal system of bypassing the DOJ by welcoming those with access to go directly to the White House.
Trump has also campaigned on promises to pardon the January 6 Capitol rioters, and he has said that he has the “absolute right” to pardon himself, leading to speculation that he would do so if he’s convicted in one of the two federal indictments he’s now facing.
Asked how her office might fare in a potential second Trump administration, Oyer said, “This is not a political office. I’m not a political appointee.” She added that “the office will continue to function at a high level regardless of what happens outside” it.
Presidential election aside, Oyer has won praise from even the office’s past critics for her efforts to increase transparency, such creating easier-to-read application forms and holding a speaking tour at federal facilities to instruct inmates on how to file.
“For many years I think the office of the pardon attorney was seen as a place where commutation petitions went to disappear,” said Mary Price, general counsel of the organization Families Against Mandatory Minimums, which has advocated for a broadly revamped pardon office. “The opaque nature of the office has always disturbed advocates and obviously people who are seeking a commutation or a pardon.”
Oyer’s transparency in the role has been “terrific,” Price said.
Her efforts can only go so far, however. “At the end of the day, it’s not their decision; it’s not Liz Oyer’s decision,” Price said. “It’s President Biden’s decision, and it remains to be seen how much impact the office will have.”
Backlog Halved
For now, Oyer’s focusing instead on what she can control—administering a more humane process. She’s leveraged an approximately 99% budget increase in fiscal 2023 to onboard staff who are processing petitions within a day after arrival, so applicants can go online and confirm their filing is under review.
In the final days of 2023, her staff slashed a backlog in half that had previously hovered around 16,000 for all of Biden’s presidency. That reduction came almost entirely from issuing nearly 8,000 denials, which defense lawyers said they received in waves just before the new year. All had been originally filed before the Biden administration, including many leftover from a 2014 Obama program that attracted a major spike in applicants. Other new denials had been lingering for well more than a decade.
“Frankly, even if it’s a no, these people know that there is a no,” said Cynthia Roseberry, the director of ACLU’s justice division who managed the Obama clemency initiative in 2014. “That’s important to keep people from waiting.”
Until they receive a denial, they can’t re-apply, and the typical one-year waiting period to re-apply has been waived for all claims indefinitely, Oyer said.
Still, a rejection isn’t a reason to rejoice. For the people who’ve changed their lives, only to be told no, with no reason given, as per the office’s custom—“that’s not helpful,” said Osler, who has six clients who received denials on longstanding petitions late last year. “That’s just discouraging because they were good cases.”
Oyer’s team is working to make the process smoother for future applicants by overhauling submission forms for pardons and commutations—the first changes in 20 years—with simpler language and new questions on post-release plans and rehabilitation progress.
“It gives the applicants the ability to tell a more positive story,” said Lisa Wayne, executive director of the National Association of Criminal Defense Lawyers. “That really can be helpful. We’ll see.”
Perhaps her boldest and most refreshing move for Wayne and other advocates is Oyer’s visits to five federal correctional facilities, training thousands of inmates and prison staff on how to navigate the application process.
“I was a public defender for 10 years before this,” Oyer said. “What I learned in that position is you cannot promise people results, but you can promise them a fair process.”
Lacking Control
Still, it’s the moves outside her jurisdiction that trouble criminal justice advocates, some of whom argue the pardon office must be moved outside the DOJ to an independent commission reporting directly to the White House.
Previous pardon attorneys have quit or been forced out in dramatic fashion. Deborah Leff resigned in 2016, citing concerns that she couldn’t meaningfully advance the Obama administration’s clemency priorities due to Deputy Attorney General Sally Yates depriving her office of necessary resources and rejecting a rising number of her recommendations. Before that, pardon chief Ronald Rodgers stepped down following critical Inspector General findings and reported frustration from President Barack Obama that Rodgers wasn’t sending the White House enough grant approvals. Under Trump, the department never appointed a permanent, non-interim pardon attorney.
The clemency claims Oyer approves first get vetted by the office of Deputy Attorney General Lisa Monaco, and Monaco can vote them down. The forms then flow up to the White House Counsel’s Office—including those about which the pardon attorney and deputy AG disagree—which conducts a separate review before they make their way to Biden’s desk.
“I don’t really have an opinion on whether the clemency function should or should not reside in DOJ. It does is the fact of the matter,” Oyer said. “This is the position that I’m in now, and I’m trying to make the most of it.”
Although she’s navigating a bureaucracy that Wayne of the criminal defense lawyers’ association said has relegated the pardon office to stepchild status, Oyer has found incremental ways to expand her office’s platform inside a law enforcement regime with clashing views.
Monaco has welcomed her perspective, Oyer said, “which sometimes is very different from others in the building.”
But Margaret Love, the former pardon attorney under Presidents George H.W. Bush and Bill Clinton, said there’s a disconnect between Oyer’s initiatives and the department’s final stances.
“On the one hand, the pardon attorney seems to be encouraging prisoners to apply for presidential clemency, even visiting prisons to do so,” Love said. “But at the same time, other department officials” are taking a “hard line” in advising the U.S. Sentencing Commission against retroactively applying newly scaled back sentencing laws. The commission wound up finalizing this change anyway, rebuffing the DOJ’s concerns and setting up the early release of thousands of prisoners, who were disproportionately Black and Latino.
Oyer declined to comment on whether her office was able to influence that process, citing confidential internal deliberations. She said her opinion is always valued and that she’s been impressed with how Monaco and Attorney General Merrick Garland make decisions “based on wide variety of perspectives.”
Larry Kupers, the former deputy and acting pardon attorney until 2019, said that he’s pleased Oyer is seeking a greater voice, but that she’s placed in a “one-way policy scheme in which the policy is dictated from the DAG down to the pardon attorney’s office, and that’s that.”
Biden’s Commutations
The president can alter the narrative on Oyer’s influence with the stroke of his pen. His prior commutations, most recently in December, focused on releasing nonviolent drug offenders who’d received prolonged sentences from a prosecutorial tool to punish recidivists that has since been narrowed under the 2018 First Step Act, and correcting for the disproportionately harsh penalty for possession of crack compared to powder cocaine. Defense attorneys see significant space for Biden to accelerate his volume of early releases under this model.
Whether that extends to those serving prolonged sentences for firearms possession may prove more challenging for White House buy-in, even though the First Step Act also curbed mandatory minimum sentences for certain gun cases. That issue is particularly sensitive in the lead-up to a re-election campaign in which Biden and other Democrats face attacks from the right for being weak on crime.
Until clarity from the president, Oyer is still working in her lane, tasking staff to more quickly open and close investigations in a bid to set up Biden for more robust actions if he chooses. She’s hoping the bolstered headcount of pardon attorney employees will feel inspired by the pictures awaiting them each day at work.
The procedural steps and heightened external visibility aren’t lost on those like Osler, the clemency scholar, who still wish Oyer had more independence.
“It’s a break from tradition and it’s a welcome one,” Osler said. “Has it seemed to have an impact on outcomes? Not that I see. But it could be that there is lag time in that, too. We can hope for that.”
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