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December 22, 2004

Bush's stingy pardon practice

BUMP AND UPDATE: I see that Orin Kerr at The Volokh Conspiracy has a powerful post here also criticizing President Bush's under-use of his pardon power.  In the hope this issue will continue to draw attention in the blogsphere and the media, I have moved up my post on the topic from last night.

Also, for those interested in an in-depth academic and historical examination of the pardon power, the Federal Sentencing Reporter assembled a terrific collection of original articles and historical materials a few years ago in a special double issue on the pardon power and sentencing policy.  A summary of that issue can be found here, and the full table of contents and on-line ordering information is at this link.

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From 12/21 at 9pm:

According to this AP story, President George Bush granted four pardons today, which gives him a total of just 31 pardons and commutations during his first term.  As the AP story notes, this total is "far off the pace of most modern presidents and less than half the 77 granted by his father, President George H.W. Bush, during his single term from 1989 to 1993." 

In a few recent prior posts, I have discussed President Bush's stingy approach to the historic clemency power, as well as other clemency news:

UPDATE: Seeking more insights about President Bush's approach to these matters, I wrote to Margaret Colgate Love, a specialist in post-conviction remedies and executive clemency, who served for seven years as US Pardon Attorney under the first President Bush and President Clinton.  Here's her powerful reaction to the recently announced pardons:

These four grants are collectively so banal and inconsequential as to demonstrate once again President Bush's disdain for his own pardon power. In all four cases the crimes were very minor (all were sentenced to probation), and three of the four occurred more than 25 years ago. To confine use of the power to these kinds of cases, as Bush has throughout his four years in office, trivializes and squanders it. When you think of the enormous good that could be done with the power, and what the Framers thought about it as a test of presidential mettle and integrity, you can see that it is a truer measure of presidential courage than almost anything else the President does. Don't forget that this is the ONLY way a federal offender can get relief from the collateral consequences of conviction, which under state law can be very severe.

Relatedly, President Bush has granted only 29 of the 707 pardon cases he has decided to date. This means that his pardon grant rate is less than 3% (his father's pardon grant rate was double that, and all other 20th century Presidents were well into double digits). In addition, the Office of the Pardon Attorney reports that there are over 700 pardon cases still awaiting presidential action -- many of which were filed during the Clinton administration. (This doesn't count the 2000-odd commutation applications that are presently pending). The quality and quantity of this President's pardon grants are hard to square with his statements about the importance of giving convicted people a second chance.

December 22, 2004 at 10:10 AM | Permalink

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» Bush the Grinch Pardons Few from TalkLeft: The Politics of Crime
Yesterday we criticized New York Governor George Pataki for his grinch-link approach to pardons. Today, Law Prof Doug Berman of Sentencing Law and Policy and Orin Kerr of Volokh Conspiracy take Bush to task for his meager handouts.... [Read More]

Tracked on Dec 22, 2004 12:37:43 PM

» Miscellanea - Boy, Was I Stupid Edition from Decision '08
I have already admitted to stupidity on the subject of presidential pardons; today, the Instapundit has led me to a source that reveals my ignorance in all its glory... [Read More]

Tracked on Dec 22, 2004 1:38:47 PM

» Pardon Me, But Why? from De Novo
For some reason, some blogging law professors (and others) across the nation -- and political spectrum -- have taken to shaming President Bush because he's not pardoning enough people. I agree with them that Bush appears to be mighty "stingy,"... [Read More]

Tracked on Dec 22, 2004 10:59:41 PM

» Bush & Pardons from Jim Dedman
Any analysis of Bush's use of the commutation power in Texas should at least mention his controversial gubernatorial commutation of the death sentence of serial killer Henry Lee Lucas in 1998. [Read More]

Tracked on Dec 26, 2004 2:08:42 PM

» Pardon Me, But Now I Understand from De Novo
Last week, I asked Professors Berman and Kerr why they were expending energies criticizing President Bush's rare use of the pardon power and whether they thought anything good would come of it. Berman responded that he: hope[s] that all the... [Read More]

Tracked on Dec 28, 2004 4:30:54 AM

Comments

I'm neither professor, student, prosecutor, defense attorney, -I guess I'm etc.

I'm having a tough time understanding your (and Volokh's, and Instapundit's) argument. You seem to think that presidential pardons are an important part of the judicial process. One of the articles states that there are about 150,000 federal prisoners. If a president is to be fair about pardons, doesn't he (or his staff) have to review all the cases? Otherwise, he only ends up reviewing the sexy ones, or the ones that have lots of political pull, or the ones who his staff happen to be interested in, etc-in essence, unless he reviews every case, his selection of cases (to review and then possibly pardon) is unjustifiably political.
In other words, to my own untrained eye, it seems that the presidential pardon process is by definition a shady political process-kind of a holdover of good-old-boy politics. Why are you guys all defending it, acting as if Bush is somehow neglecting his duties to pardon a few lucky politically powerful prisoners? I would think that Bush's negligence of the pardon process would be seen as a good thing rather than a bad thing.
I'm not being snarky, by the way-I'd genuinely like to know-is my understanding of the pardoning process incorrect?

Steve

Posted by: Steve | Dec 22, 2004 12:50:45 PM

You raise some reasonable concerns, Steve (though you should realize there is a process for offenders to apply for a pardon, so it is not essential that Bush and his staff review all federal convictions to look for deserving cases).

For me, pardons and clemencies serve as a critical safety valve in a system in which justice may, at least sometimes, be too tough. (Consider the recent Angelos case where Judge Cassell felt compelled to impose a 55 year sentence while calling for presidential clemency after Angelos had served 18 years.)

You are right to be concerned about political cronyism, but I would hope a sense of justice tempered with mercy would prevail over political payback in pardon/clemency decision-making.

Plus, recall that this President once campaigned as a compassionate conservative, and he talked in his last State of the Union of America as the "land of the second chance." Especially given that, as Margy Love noted, a pardon is the only way a federal offender can get relief from the collateral consequences of conviction (which can often be very severe), I would hope this President would show a bit more compassion and give a few more offenders a true second chance.

Posted by: Doug B. | Dec 22, 2004 1:08:11 PM

I agree with Steve. In my opinion this has to be the dumbest thing for conservatives to carp at Bush about. I would expect asinine criticism like this from the left. A blogger from the Volokh Conspiracy noted that unless there where specific individuals that truly deserved a pardon, then they should be listed, otherwise we should drop is issue and train our focus on more pressing matters.

Posted by: K. Ham | Dec 22, 2004 1:12:41 PM

Not law-related. Stats oriented, though.
I agree with K. Ham. In this case, I don't care about the trend. If there are individuals who deserve to be pardoned but are being turned down, that's a fair criticism. But when the presidential pardon has be abused, as it was by Bush I, Clinton and many others, falling behind the pack isn't a vice, its a virtue.

Posted by: Geoff Matthews | Dec 22, 2004 1:47:45 PM

Interesting how the lawyers and judges want the President to fix their mistakes. If Judge Cassell felt compelled to impose a 55 year sentence, it must have been because it's the law. But he doesn't like the law so he hopes the President will over rule it? Are we to have a government of laws or men?

Posted by: Mr. Davis | Dec 22, 2004 2:23:36 PM

In the Angelos case the local prosecutor went against Justice Department policy, the Ashcroft memo on charging gun crimes, and a pardon could be justified to cure disparate treatment.

Posted by: John F. Carr | Dec 22, 2004 3:05:12 PM

ummm, by second chance you mean what?

It has been my experience that a person serving serious time in a federal pen has had several chances, and is is probably on his 3rd, 4th, or 5th chance by the time a federal judge sentences him.

Certainly this is not always the case, but in the vast majority it is. Please save the emotional rhetoric for the defense final statements. kthnx.

Posted by: Joel Mackey | Dec 22, 2004 6:51:42 PM

I'm one of those annoying guys who, when they see numbers and percentages, double-checks them. 29 pardons of 707 applications works out to a little over 4%.

J.

(Interested observer)

Posted by: Jay Tea | Dec 22, 2004 7:45:38 PM

With such hostility to the possible exercise of mercy, a benevolent and historically-used power by thoughtful leaders, it's no surprise that the President apparently believes his core constituency would disapprove of its use in even meritorious cases.

Those of you who level acrimonious criticisms at those who believe in justice in appropriate cases, should realize that the task of judging is a very individualized process. Believe it or not, if apprized of the facts of certain cases, even you might find a particular result unfairly harsh and think a pardon would be appropriate. Sadly, most sentences are now rigidly dictated by a sentencing system that is largely the product of political grandstanding or pandering, rather than being the result of the thoughtful type of balancing that sentencing traditionally involved.

By painting with such a broad brush without examining the specific facts and circumstances of why a pardon might be appropriate in certain cases--presumably, you want to be "tough" on crime and think that there is no value to mercy in any case--you stand to lose your hearts and souls. You might look deep within yourselves and ask whether that is the type of person you want to be.

Posted by: Alex E. | Dec 23, 2004 11:56:22 AM

My fiancee' is serving time in a federal prison for a crime that took place ten years ago, at least that is what the agent told me the night my fiancee' was arrested. We were in the process of getting finger printed to gain custody of his three children when he was arrested. He was told by The Children and Youth in Carlise PA. that if he did not show up for this hearing, he would automaticly lose parental rights to his kids. I believe he could have been punished someother way instead of prison. He worked so hard to gain custody and now this friday they are having the final hearing for the adoption of the kids. The crime he commited wasn't severe enough to lose his children over. I am just a person who cares about what was to be my family. Tom and I are still getting married, but we wanted the kids to be our family.
I am not a professor, prosecutor, defense attorney or student

sue

Posted by: susan carroll | Jan 5, 2005 1:30:22 AM

I don't really have a problem with the statistics at all if the reason for the frequency of pardons being granted are low because applicants are not deserving of a pardon. I would object to Bush's practice if not all of these applications are reviewed appropriately. Would he choose which ones to review? Even criminals deserve a second chance and since there are strict standards that have to be met for a pardon therefore anyone who meets the requirments should be approved for a pardon. Only a pardon can truly relieve a person from their criminal history so they can effectively re-contribute to societ and live a productive life.

Posted by: JessO | Oct 26, 2006 1:16:27 PM

P.S. I am a university student.

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Posted by: laptop bettery | Feb 27, 2009 10:54:39 PM

I agree with Steve.I would expect asinine criticism like this from the left.

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