Breathe New Life Into the Pardon Power: How to Make Operational and Strategic Use of Executive Clemency

              With the rapid growth of the federal prison population and the expansion of legal barriers to reentry, the president's pardon power now plays a central operational role in the federal criminal justice system.  However, the past four presidents have allowed the pardon power to atrophy as a remedy available to ordinary people, and the Justice Department has neglected its historical role as steward of the pardon power.  There has been no considered discussion of the role that pardon should play in the justice system in light of the transformation of federal sentencing to a determinate no-parole system.  Our next president ought to identify the values pardon serves, define a clear operational role for it in the criminal justice system, and establish a system for administering the power that will maximize its potential for correcting injustice and advancing the administration's policy objectives. 

Summary of the Problem:  The pardon power in Art. II, Section 2, cl. 1, of the Constitution gives the president unlimited authority to issue full or conditional pardons, commutations of sentence, remissions of fines, amnesties, and reprieves.  Clemency plays a vital role in the federal criminal justice system because many prisoners are serving extremely lengthy sentences (including mandatory minimums) with no possibility of parole; post-conviction remedies have been significantly limited in recent years; and, the collateral consequences of a federal conviction are numerous, onerous, and sometimes permanent.  

            Despite the evident need for clemency, the current system for administration of the pardon power is inefficient and unreliable, and results in very few grants.  As of October 2008, President George W. Bush had issued fewer commutations and pardons in absolute terms than any other president in recent history, except for President George H.W. Bush.  The Justice Department's Office of the Pardon Attorney (OPA) takes many years to process a case and evidently makes few favorable recommendations.  The number of clemency applications has increased dramatically in recent years, producing a backlog of over 2,000 requests.  Applicants have waited as long as eight years before receiving notice of the president's final decision and only a small percentage of requests are granted.  This is a sharp contrast from practice prior to 1980, when grants were made regularly and frequently.  Granting clemency in this manner helped the public see clemency as an integral part of the criminal justice system.  Revitalizing executive clemency will allow the president to give deserving individuals a second chance, signal his law enforcement priorities within the executive branch, and highlight the need for reform of the justice system.

Proposed Solutions:

            Executive:  Establish standards for the exercise of clemency that will provide guidance for all those involved in making recommendations to the president, and for individuals who are considering applying for clemency.

1.  Make the Justice Department's clemency process more efficient, reliable, and accountable by taking the following actions:

a.  Make the Attorney General (AG) personally responsible for signing all pardon recommendations to the President.  As a member of the President's cabinet, the AG can bring to bear both a law enforcement and a political perspective.  The current practice of having the Deputy Attorney General (DAG) sign clemency recommendations has allowed the pardon program to come under the control of prosecutors, and has constrained pardon's operational and policy functions.  Having the Attorney General sign pardon recommendations elevates the pardon function within DOJ and allows it to perform better its function of giving meaningful review to pardon applicants.

b.  Direct the Pardon Attorney to develop a strategic plan for the use of the pardon power to accomplish the President's criminal justice policy agenda; build up OPA staff to ensure that clemency applications are promptly and thoroughly reviewed, with a goal of ensuring that most cases are disposed of within two years of their receipt by OPA. 

c.  Make public the President's pardon policy and the standards for favorable consideration of pardon applications; establish a policy of disclosure after a clemency case has been finally acted upon, to introduce a degree of accountability into the pardon process, while respecting the privacy of clemency applicants and the prerogatives of the president.

d.  Direct the Attorney General to make maximum use of statutory alternatives to clemency, such as the sentence reduction authority of 18 USC 3582(c)(l)(A)(i) and the deportation authority of 8 USC § 1231(a)(4). 

2.  Make granting clemency a strategic priority for the White House.

a.  Assign a senior attorney in the White House Counsel's office to review and advise the president on pardon matters, and to review OPA's clemency recommendations on a regular basis.

b.  Schedule regular opportunities for the President to review and act on clemency requests with his counsel.

c.  Consider making grants to advance the Administration's criminal justice policy goals both within and outside of the executive branch, including with the public.  Examples might include granting clemency to:

• Recognize particularly harsh sentences, such as nonviolent drug offenders serving life without parole sentences or mandatory minimums that the sentencing judge believed did not fit their crimes;
• Remedy disparity in the cases of girlfriends/wives, "drug mules," and first-time drug offenders serving longer sentences than those of their more culpable boyfriends/husbands, suppliers, or co-conspirators;
• Give retroactive application to changes in the law, e.g., to crack offenders who did not benefit from the U.S. Sentencing Commission's recent changes to the crack guidelines;
• Signal disapproval of a particular investigative or prosecutorial practice, such as sentencing entrapment, or imposing a penalty on those who exercise their right to take their cases to trial;
• Give effect to a judge's expression of regret over having been required to impose too harsh a sentence;
• Send home seriously ill or elderly prisoners who can receive adequate care from their families; and
• Restore rights to individuals who have fully served their sentence and desire forgiveness, or who have a need for relief from some collateral penalty or disability (e.g., deportation, disqualification from employment or licensure, or ineligibility for a government benefit).

d.  Use clemency grants strategically to advance criminal justice reforms:

• Pair grants of clemency to particular offenders (i.e., drug offenders serving mandatory minimums for crack cocaine) with calls to Congress (in press releases, State of the Union, personal meetings) to change sentencing laws (i.e., eliminate the 100:1 crack-powder cocaine disparity); and
• Publicize clemency grants to make the public and Congress more comfortable with the use of clemency and to show the "human face" of those serving harsh prison sentences, or laboring under the lingering collateral disabilities of a criminal conviction.

Jurisdiction:

            Executive Branch: The pardon power is exercised by the President alone, without statutory limit.  The Office of the Pardon Attorney advises the President, and has been located within the Department of Justice (DOJ) since the 19^th century.   

Background:

            Executive Branch:  The pardon power in Art. II, Section 2, cl. 1, of the Constitution gives the President unlimited discretion to issue full or conditional pardons, commutations of sentence, remissions of fine, amnesties, and reprieves.  Clemency plays a vital role in the federal criminal justice system because it represents the only prospect of early release for prisoners serving extremely lengthy sentences (including mandatory minimums) with no possibility of parole.  There is no other way of mitigating the collateral consequences of a federal conviction, which are numerous, onerous, and sometimes permanent.

            Historically, most clemency grants have gone to ordinary offenders with no political connections, and that has remained true in this administration as well. Traditionally acceptable grounds for granting the "extraordinary remedy" of clemency include:  to reward an offender's extraordinary rehabilitation, heroism, or community service; to correct an unjust or inequitable conviction or sentence that cannot be corrected by any other legal avenue (e.g., a law that should have been made retroactive, but was not); to eliminate extreme sentencing disparity among similarly culpable codefendants or coconspirators; to alleviate undue hardship on the offender or his/her family members as a result of incarceration; to allow a sick or terminally ill offender to be treated or die at home; to recognize an offender's cooperation or assistance to the government that he/she has not otherwise been given the benefit of; to remove an unduly burdensome collateral consequence of a conviction; to restore to law-abiding former offenders the full rights and benefits of citizenship.  Standards for recommending pardon and commutation are set forth in §§ 1-2.110 through 2.113 of the U.S. Attorney's Manual. 

            The pardon power has been administered since the mid-19^th century by the Attorney General, assisted by the Pardon Attorney.  Since the late 1970's, the Pardon Attorney has reported to the Deputy Attorney General (DAG), who signs all clemency recommendations to the President.  The Pardon Attorney, traditionally a career DOJ lawyer, is assisted by five attorneys and additional support staff.  The Office of the Pardon Attorney (OPA) reviews applications for clemency, directs the investigation of each case as appropriate, and solicits the opinions of the judges and prosecutors involved in the case.  OPA drafts a recommendation to grant or deny each request, which is approved by the DAG before being sent to the Office of White House Counsel.  A report and recommendation is sent to the White House in every clemency case filed with DOJ, unless the case is withdrawn or otherwise is not completely processed, and each case is acted upon by the President.[1]

            In recent years, most clemency cases have been handled by OPA in summary fashion, with only a small percentage of cases being referred to the FBI for a background investigation or to the prosecutor for a recommendation.  Most case reports are only a few sentences long.  If a case is referred to the prosecutor for a recommendation, the Justice Department's recommendation rarely deviates from that of the prosecutor.  The President generally accepts the DOJ recommendation. The application review process is governed by 28 C.F.R. Part I, §§ 1.1-1.11. These rules do not create due process rights in the applicant and do not bind the President, who can grant clemency to anyone, for any reason, regardless of whether they have submitted an application.         

            Legislative Branch:  Congress cannot regulate or limit the presidential pardon power in Article II.  Congressional inquiries into the use of the pardon power are infrequent, and usually occur when a controversial grant of clemency is made (e.g., hearings were held to investigate President Bill Clinton's commutation of Puerto Rican terrorists in 1999, and his pardon of Marc Rich and others in 2001; hearings were scheduled but later cancelled in 2007 to inquire into the racial breakdown of clemency grants, and into President George W. Bush's grant of clemency to I. Lewis "Scooter" Libby).  Members of Congress may express support for particular clemency applicants and occasionally make public statements calling on the President to grant clemency to certain individuals (e.g., statements from multiple Members in favor of clemency for former Border Patrol agents Ignacio Ramos and Jorge Compean).

            Judicial Branch:  The judicial branch is involved in the pardon process only when a sentencing judge is asked to make a recommendation in a particular pardon case.

Potential Allies, Potential Opposition, and Public Opinion:

            Potential Allies:  Families Against Mandatory Minimums, American Bar Association, American Civil Liberties Union, National Association of Criminal Defense Lawyers, The Sentencing Project, United Methodist Church, Prison Fellowship, the National Alliance of Faith and Justice, StoptheDrugWar.org, and federal prisoners and their families

            Potential Opposition:  Career prosecutors

            Public Opinion:  Pardon has generally been viewed by the public with cynicism and distrust.  The next president should act promptly to restore a degree of regularity and predictability into the pardon process, and use his power generously to benefit ordinary people, thereby shoring up public confidence in the operation of the criminal justice system.

Experts:

• Margaret Colgate Love, former U.S. Pardon Attorney
• Sam Sheldon, current Assistant U.S. Attorney, Southern District of Texas; successfully represented several clemency recipients in 2001
• Dan Kobil, Capital University Law School
• Molly Gill, Commutations Project Director, Families Against Mandatory Minimums

For Further Information:

Love, "Reinventing the Pardon Power," http://www.pardonlaw.com/materials/FSR.Pardon.2007.final.pdf

Lardner, "Begging Push's Pardon," http://www.nytimes.com/2008/02/04/opinion/04lardner.html

Savage, "Felons Seeking Bush Pardon Near a Record," "http://www.nytimes.com/2008/07/19/us/19pardon.html?_r=1&hp=&pagewanted =all&oref=slogin

[1] In this Administration, each pardon warrant indicates that the grants were made pursuant to a favorable recommendation from DOJ.  Five of the six commutation grants to date by President Bush were also made pursuant to a Justice Department recommendation (though the warrant does not indicate whether or not the recommendation was favorable).  To date, the grant to Scooter Libby is the only one by President Bush that was not staffed through the Justice Department.