When James Kirby Burks' family saw his name on a list of about 2,500 people to whom former President Joe Biden had granted clemency in his final days in office, they were overjoyed. Burks has been in federal prison for 32 years, serving a life sentence for a nonviolent drug offense in the '90s.

"We had been fighting for so long, and to finally see someone was listening and heard us, it was just tears pouring out of me, just being thankful," Burks' sister Robin Davis told Law360 in late February.

But the joy was short-lived. Even though her brother's life sentence had been lifted, he wasn't home free, Davis said. Burks is one of the nearly 700 clemency recipients whom Biden specified couldn't be released until this July.

It's comforting to know her brother will no longer live the rest of his life inside prison walls, but still, there was something that felt inherently unfair about watching other clemency and pardon recipients, especially those who President Donald Trump pardoned for their participation in the Jan. 6, 2021, insurrection, get out immediately, Davis said.

Burks, 57, shared a prison block at Maryland's Federal Correctional Institution, Cumberland with Stewart Rhodes, a founder of the far-right anti-government militia the Oath Keepers. Davis said her brother watched Rhodes as he was "paraded through" the prison and then escorted out around 10:30 p.m. on the night of Jan. 20, just hours after Trump had issued his pardon. A spokesperson for the Federal Bureau of Prisons, Donald Murphy, confirmed that Rhodes was released at around midnight.

"And here they're telling us everything about why my brother isn't free," Davis said. "I don't understand it. The discretion, the difference. It is smacking us right in our face. My brother is free, so why is he not home with his family and loved ones?"

In granting nearly 2,500 commutations on Jan. 17, Biden set the record for most acts of clemency in a single day, and his office said at the time that the action was intended to address the racial and socioeconomic disparity in sentences between crack and powder cocaine offenses.

"Today's clemency action provides relief for individuals who received lengthy sentences based on discredited distinctions between crack and powder cocaine, as well as outdated sentencing enhancements for drug crimes," Biden said at the time. "This action is an important step toward righting historic wrongs, correcting sentencing disparities, and providing deserving individuals the opportunity to return to their families and communities after spending far too much time behind bars."

Advocates now say that the process of getting out for Biden's clemency recipients is reflecting that same disparity.

As of March 6, just 383 of Biden's clemency recipients had been released fully from prison, 325 had been moved to a halfway house or home confinement, and the other 1,783 inmates were still in prison, according to data Law360 collected from the BOP's inmate locator.

Meanwhile, the BOP on Jan. 21 announced in a Facebook post that it had worked overnight to release all 211 individuals convicted for Jan. 6 activities within 24 hours of Trump's pardon action.

There are many factors that experts say contribute to why so many of Biden's picks are left waiting, from the ever-changing rulebook of clemency itself, to staffing cuts and departures within the BOP, to a shortage of beds in halfway houses.

Either way, the rollout of one of Biden's last acts as president is going poorly, and the immediate release of the Jan. 6 inmates is fueling claims of inequality, said MiAngel Cody, founder of the Decarceration Collective, which is focused on freeing people sentenced to life in prison.

"We value numbers and it's great to say, '2,500 people got clemency,' but if the execution of their release is just fumbled, I think there's a lot of trauma and confusion that people and their families are experiencing," Cody said. "I think it's also brought to bear this sort of apartheid system, where I have to tell people, 'Here's ordinarily how things work in the bureaucracy,' and then people who were Jan. 6 clemency recipients clearly demonstrate that that doesn't apply to them."

A Bumpy Rollout of Clemency Action

Burks found out about his clemency status, not through any formal pathway, but from a phone call with Davis, she said.

"It's been absolutely nothing from the BOP," she said. "Just two weeks ago, they still had my brother listed on the docket as 'LIFE'. His caseworker didn't even know he had received clemency."

He isn't the only one. Cody said she's gotten calls from people she isn't even representing asking her to look and see if their name was on Biden's list.

"One person in particular, I was like, 'Yes, your name is here,'" she said. "He was just, I think, in shock. No one had told him that he got clemency and he didn't have a life sentence anymore."

Jack Donson, BOP policy expert and executive director of the Federal Prison Education and Reform Alliance, has also been hearing from clemency recipients who, weeks after finding out about their clemency status, were still looking for answers.

He shared with Law360 an email from an inmate on Feb. 12 that said "NOBODY has informed me of the good news. I found out from the streets. I can not get confirmation... I'm just trying to get home to my mother, children, & grandchildren. Can you give me some insight please?"

Murphy said that once a clemency order is processed, the bureau's Designation and Sentence Computation Center in Grand Prairie, Texas, will email the case management coordinator for the BOP facility where the individual is housed. Then it's up to the facility to notify the inmate.

But sources say in many instances, this communication wasn't happening.

"They should be communicating with the inmates and asking for their release plans," Donson, a former BOP employee himself, said. "I don't see why it would be treated any differently than an ordinary release."

Another spokesperson for the BOP, Benjamin O'Cone, said in February that it did take the bureau a couple of extra days to process all the reduced sentences "because the large number of pardons and commutations issued under President Biden's outgoing administration and President Trump's incoming administration occurred within days of each other."

Although O'Cone said that all were processed in the system by Feb. 3, the bureau did prioritize all those that resulted in immediate release first. This largely meant that Trump's pardons and commutations would be processed first, because Biden's clemency grants specified staggered release times.

"The clemency warrants signed by President Biden provided future dates of release or changed the terms of imprisonment for recipients, and the warrants did not instruct the FBOP to release any clemency recipient immediately," Murphy said. "Recalculation of a sentence computation for a new release date involves additional research and auditing, which a pardon or commutation to time-served does not require."

But this was a confusing and frustrating process for some of Biden's clemency recipients who were supposed to get out immediately and did not, Cody said.

"We have clients who were eligible for immediate release. They had been overserving time from the Biden clemency, and it took a week to get them out," she said. "Their families were in the parking lot, ready to take them home, and they have the BOP calling them saying, 'Oh, the computers are down.'"

It's true that the BOP is currently experiencing an upheaval. Director Colette Peters resigned when Trump stepped into office on Jan. 20, and on Feb. 17, the acting director who took her place, William Lathrop, announced he was retiring. His departure was accompanied by that of five other senior leaders.

"The BOP as of late is off-the-charts imploding," Donson said. "It's so incompetent right now, it's scary."

But Cody said that the agency's Facebook post on Jan. 21 was telling. The bureau announced that after receiving the release order for the 211 people Trump had pardoned in relation to the Jan. 6 riots at 9:30 p.m. on Jan. 20, they worked overnight to get all of them out of prison as of 9:30 the next morning.

A spokesperson for the BOP said that "when a court order or grant of clemency specifies an immediate release, the DSCC coordinates with the FBOP facility to release the individual as soon as possible, which may be after normal business hours."

But the BOP working to release an inmate overnight is unheard of, Cody said.

"It made it very difficult for me to then say to my clients' family members, 'Well, no one gets released after 5 p.m.,' which is what we had been taught for years, that if the paperwork hadn't been put in the computers by then, you have to wait for the next day," she said. "But clearly that's not the rule, because none of that applies to January 6-ers. And so then I'm having to explain to people that I actually don't know what's happening here, other than some people are getting preferential treatment and relief."

Staggered Sentencing

There are several reasons for the delay in the release of Biden's clemency recipients, experts told Law360, but at the root of it all is Biden's choice to do a staggered release structure.

In one of four executive grants of clemency Biden issued in his last few days in office, thousands of names were sorted into different sections based on when their sentence is set to expire, with roughly 200 prisoners who could be released in February, and then the rest staggered among release dates in March, April, May and July, in which the largest chunk of 675 recipients are to be released.

And then Biden issued another pardon with about 600 names on it in which, instead of designating a specific date when the sentences are to expire, he changed the total sentence, reducing some inmates' sentences to just 20 months and others to 170 months or 320 months, allowing for a few to be designated for release immediately and leaving some in prison as late as 2033.

This complex and varied framework for clemency was adopted relatively recently during the Obama administration and then mimicked in Biden's term, coinciding with a political environment where commutations are more common, advocates said.

Presidents in the past have often used their executive power to issue pardons, which fully forgive a crime, and, up until recently, are rarely granted to people in prison. Meanwhile, a sentence commutation doesn't forgive a crime, but shortens a prison sentence or, in many cases, allows an immediate release from prison. Commutations have become increasingly common in the last decade.

A Pew Research Center study this month showed that President Barack Obama had granted more sentence commutations than any president before him with 1,715. And then Biden more than doubled this number with 4,165 commutations during his four-year term.

All of those commutations did not necessarily result in getting someone out of prison, but the idea of staggering the sentences was at least in part to alleviate pressure on prisons, so they don't have to get everyone out on the same day, and ideally to accommodate prison reentry programs, Cody said.

"That's what we were always told, 'It all takes time,'" she said. "Then the Jan. 6 commutations happen and the BOP issues this tweet like, 'We worked overnight for 12 hours and got 200 people out.' It's like, 'OK, do you need institutional time or do you not? And for whom?'"

Another reason for staggering release dates is that, in some cases, the president may not want to release an inmate immediately, but shorten a sentence considered too long, said Margaret Love, who was U.S. pardon attorney from 1990 to 1997 and now runs her own law practice specializing in executive clemency. Love said that clemency, and how it's used, has changed dramatically in the last decade.

"When I was pardon attorney, things were a lot simpler, but that was also a time when clemency worked fairly regularly and routinely," she said. "If a person's sentence was commuted, at that point, they would be released. You didn't have staggered release dates that simply remake a person's sentence."

The precise reasoning behind Biden's lengthy staggered release dates is not entirely clear, and a spokesperson for Biden didn't reply to a request for comment for this story. But the loved ones of clemency recipients are left wondering why some are getting out earlier than others.

"Other inmates that were granted this wonderful pardon are home and some are en route. Why isn't my brother one of those?" Davis said. "They are playing God with his life. You stripped him from everything, just being a human being, and now you're dangling it right in front of him."

Barriers to Getting Home

Davis said it's baffling that her brother is last in line to get out of prison, especially when he has earned over 1,215 hours of time off his sentence for good behavior, which is not being applied to his new sentence.

Many clemency recipients are feeling similarly robbed of the credits that they had been earning through the First Step Act, a law passed in 2018 that increased programming for federal prisoners and allowed them to earn early placement into supervised-release programs. Inmates who are near the end of their sentence can be moved to halfway houses or home confinement to finish out their time, and the FSA credits can allow them to get into those programs sooner.

Donson said he's spoken to several clemency recipients who are frustrated to see that the BOP has added one year to Biden's sentence commutation and then reduced from that sentence a year of FSA time credits to arrive back at the initial date ordered in the clemency warrant.

Murphy confirmed that "for individuals who received a commutation for a specific date of release, additional FSA credits are not applied to prevent having an earlier release date than ordered in the clemency warrant."

But Cody said this still shouldn't prevent the correctional institutions from relocating inmates into reentry programs like at-home confinement or halfway houses, especially as a majority now have their sentences set to expire within six months.

But only 325 people on Biden's list of recipients were listed on the BOP inmate lookup as having been relocated to a reentry program, and 276 of those individuals are set to be released in March or April. This means the BOP is giving them limited time to develop a real plan for reentry, Cody said.

"That's where you get your services," she said. "That's where someone meets with you and says, 'Let's talk about employment options. Let's talk about housing. Let's talk about mental health services that you might need. Let's make sure that you're signed up for Obamacare if you need that.' All of that is supposed to happen. It's a necessary ramp to your freedom."

A spokesperson for the BOP said that eligibility for prerelease custody is "determined at the institution level and placement is approved by the respective residential reentry managers."

A Larger Systemic Problem

But Cody said her clients' difficulty getting placed in a halfway house or home confinement is indicative of a larger systemic issue: The BOP is reluctant to move inmates out of prison early.

In December, the American Civil Liberties Union worked to file a class action against the BOP claiming that the bureau was treating its responsibility under the First Step Act to provide eligible inmates who had earned the proper credits access to halfway houses, home confinement, or supervised release as "optional" and that a majority of eligible inmates were not getting access to these things in a reasonable time frame.

The complaint, filed Dec. 20, referenced sworn testimony that Peters, the now-former BOP director, gave before the House Judiciary Committee in a July hearing on the problems plaguing the BOP. One representative asked Peters if it was accurate that more than 60,000 First Step Act-eligible people were facing delays to prerelease. Peters responded: "I'd want to confirm with my team on the accuracy of those numbers, but anecdotally that is what I'm hearing."

For Davis, the path to bringing her brother home finally seemed clear, and now it's been fogged again with uncertainty.

Burks went away in 1994 at the age of 25 after being convicted by a jury on conspiracy drug charges in the Eastern District of Virginia. Davis felt the prosecutor "threw the book at him." She said she felt robbed, having her older brother, just a year apart from her in age, taken away from her for so long.

"He's always been my big brother. He was very nurturing. He was just there. And not having him with me ... so much has happened," Davis said. "He's missed the birth of my children, his niece and his nephew. He's missed weddings. He's missed the burial of our father. He's missed so many milestone events."

Davis has been fighting for her brother's release ever since he was sentenced, filing numerous appeals, holding rallies and working with Cody to submit a clemency application, and then another clemency application after the first one was denied.

"No one heard our voices, our cries. No one was listening," she said. "And my fear now is they're turning another deaf ear. He has been released. He has been pardoned. The commutation, it was given to him. It's his right and no one's doing anything."

Even after winning her brother's inevitable release, Davis is still fighting hard. She said a probation officer came and inspected her home and interviewed her, but when she asked if her brother could be released to live with her in home confinement, the officer said it was entirely up to the BOP, who she hasn't heard back from. But she won't stop trying.

"He sees the light, it's just a matter of how much more control are they going to take from him?" she said. "He just wants his life back. He has a loving home, family members that are waiting for him so that he can continue to live the rest of his days in peace."

--Editing by Orlando Lorenzo. Graphics by Ben Jay. Data analysis by John Campbell.

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