November 24, 2009
Justified complaints that Obama's first pardon will be of a turkeyI am pleased to see that Debra Saunders has this new commentary in the San Francisco Chronicle lamenting the fact that the first use of the pardon power by President Obama will be for a turkey:
On Wednesday, President Obama will issue the White House's standard hokey pardon of a Thanksgiving turkey. It goes with the job. That's good news for the lucky turkey, but not much help for the many nonviolent first offenders languishing in federal prisons because, nine months into office, Obama has yet to exercise his presidential pardon power.
According to political science Professor P.S. Ruckman Jr. of Rock Valley College in Illinois, Obama, a former constitutional law professor, has taken longer to use the executive pardon and commutation power than all but four presidents -- George Washington, John Adams, Bill Clinton and George W. Bush.
Obama hasn't pardoned a single ex-offender, even though about 1,200 people have asked for pardons because they have turned their lives around, expressed remorse for their crimes and now want to wipe the criminal slate clean of long-past offenses for which they paid the penalty.
Nor has Obama commuted the sentence of any of the 2,000 or so federal inmates seeking sentence reductions -- many because of draconian federal mandatory minimum sentences. "We had certainly hoped that by now President Obama would have used the pardon power," said Molly Gill of the sentencing-reform group Families Against Mandatory Minimums. "We are a little bit surprised and a little bit disappointed."...
[T]he new president doesn't seem eager to use his unfettered pardon power to correct sentencing injustices for the politically unconnected. Look at Obama's choice for attorney general, Eric Holder. When Holder worked for the Clinton administration, Ruckman noted, "he wouldn't take the time, energy or effort to make it a regular feature of government."...
When you think about it, the pardon petition is the rare Washington exercise that encourages politically unconnected people to petition their president for relief. But like Bush and Clinton before him, Obama seems to be hoarding this power. It's as if Team Obama sees justice as perk, not an equal right.
As regular readers know, I am a lot more than a "little bit disappointed" about President Obama's failure to make any use of his historic clemency powers. The Obama Administration has obvious spent a lot of time and a lot of political capital seeking to ensure that suspect terrorists at GITMO get treated fairly, but it has yet to find the time or the inclination to make even a single symbolic gesture toward justice or mercy for the thousands of low-level non-violent federal defendants who can make a strong case for clemency attention.
Perhaps someone needs to start a new advocacy campaign with this slogan: "President Obama, justice and mercy should not only be for terrorists and turkeys."
Some related posts on federal clemency realities:
- "President Barack Obama proving stingy with his pardon power"
- Notable press stories noting Obama's lack of clemency action
- A simple plea for Prez Obama: grant at least a single clemency in your first 100 days
- Historical evidence that it is NOT too early to start demanding clemencies from President Obama
- Still waiting ... and waiting ... and waiting ... on the clemency front
- Another public and potent call to reinvigorate the pardon power
- "Judge urges Obama to cut coke dealer's sentence"
- ACS issue brief on the pardon power
- Latest FSR issue on "Learning from Libby"
- "The Fall of the Presidential Pardon"
- When will President Obama start acting like President Lincoln when it comes to the clemency power?
- What might 2009 have in store for . . . executive clemency?
November 24, 2009 at 10:29 AM | Permalink
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There is one significant error in the article: the pardon power is not truly “unfettered.”
It is true that an individual pardon is irreversible, but the president expends political capital to issue it. Remember the hue and cry when George W. Bush commuted Scooter Libby’s sentence, and that wasn’t even a full pardon—the conviction remained intact. As far as I can recall, it was Bush’s only use of the pardon power that was in the least bit courageous. I am still not sure he would have done it if he had still been in his first term, and needed to face the voters again.
In a sense, Obama’s non-use of the pardon power is more principled than what George W. Bush did. For most of Bush’s tenure, he issued pardons only to low-level offenders whom no one had heard of, long after they had served their sentences. The one time he issued a pardon that made news, it was for a crony.
With Obama’s approval ratings hovering below 50 percent in a number of crucial swing states, there is only one set of people who should be rooting for him to start issuing pardons: those who want him to lose in 2012.
Posted by: Marc Shepherd | Nov 24, 2009 12:50:57 PM
"Perhaps someone needs to start a new advocacy campaign with this slogan: "President Obama, justice and mercy should not only be for terrorist and turkeys." Says it all Professor and thank you and Ms. Saunders for your comments. This campaign should have as it's capstone the immediate passage into law of H.R. 1529 the Second Chance For Ex-Offenders Act of 2009. This legislation has been around since 2000. Now is the time for congress to stop talking about reform and actually do something.
Posted by: T Kinney | Nov 24, 2009 12:57:04 PM
While I agree with Marc to some extent I also think there are larger social forces at work. It's not coincidence that all three of the most recent presidents are on that list in the same way that we now have the prison industrial complex. I think there are larger social forces at work that all politicians are sensitive too. We didn't get here by accident.
I guess what I'm trying to suggest is that issuing pardons is politically unappealing precisely because it is socially unappealing. And until society's attitude towards the criminal justice system changes I don't see any politician's attitude changing either.
Posted by: Daniel | Nov 24, 2009 2:46:12 PM
"For most of Bush’s tenure, he issued pardons only to low-level offenders whom no one had heard of, long after they had served their sentences."
That's not accurate. Moreover, giving pardons to people after they've served their sentences is a big deal to those people.
Posted by: federalist | Nov 24, 2009 3:01:26 PM
Federalist, if what I said is inaccurate, give us the counter-examples? I do agree with you that a pardon is surely a big deal to those who receive them. I am just commenting on the pattern, not minimizing the importance to the recipients.
Posted by: Marc Shepherd | Nov 24, 2009 3:51:16 PM
IIRC, Bush freed a guy from prison, and it was written up in WaPo.
Posted by: federalist | Nov 24, 2009 4:28:57 PM
Marc Shepherd --
"It is true that an individual pardon is irreversible, but the president expends political capital to issue it. Remember the hue and cry when George W. Bush commuted Scooter Libby’s sentence, and that wasn’t even a full pardon—the conviction remained intact. As far as I can recall, it was Bush’s only use of the pardon power that was in the least bit courageous. I am still not sure he would have done it if he had still been in his first term, and needed to face the voters again."
President George W. Bush might have needed a small nudge. Apparently someone gave it to him:
I am quite sure W. would have granted the partial commutation whether or not he was up for re-election. Indeed he was under a good bit of pressure from segments of the Republican Party to grant a full pardon. I understand where they were coming from, but I thought the crime was too serious to merit a pardon.
BTW, Libby (whom I have never met) was a crony of Vice President Cheney, not the President. Indeed I don't know that the President ever met Libby (nor do I know that he didn't).
Federalist is correct in stating that W. used the pardon power more broadly than you give him credit for.
Posted by: Bill Otis | Nov 24, 2009 4:29:15 PM
Bill, Libby received a guideline sentence. I guess when a Republican crony is about to serve a sentence, then the importance of following the Guidelines becomes less important.
You have been such a vocal proponent of mandatory Guidelines. Yet, all of a sudden when presented with the Libby case you realize that there are a host of facts that the GL didn't take into account and that not correcting this would be an "injustice."
Posted by: DEJ | Nov 24, 2009 6:34:53 PM
He was a 56 year-old first offender for a non-violent and non-drug related offense, which he did not commit out of greed, animus toward the police, or wanting to harm another person. He also had more letters attesting to his good character and good works than I had ever seen since the Guidelines took effect. And he was a pre-selected defendant, which is (1) the main problem with these Special Counsel appointments, and (2) very far outside the heartland, and thus deserving of consideration for a non-guidelines sentence under the criteria traditionally and statutorily applied to departures.
In my view, then and now, Libby is not a person for whom a prison sentence is needed.
I also thought playing to the audience had a role in his sentencing.
Part of the mandatory guidelines system included allowing departures for exceptional cases. For the reasons I have outlined, Libby's was.
Over the course of my career, I supported many downward departures (via 5K1.1 motions). Indeed I will wager that I supported more successful downward departure motions than the rest of our commenters combined. So the idea that I never went along with a below-guidelines sentence is incorrect. I went along with it dozens of times before I ever heard of Scooter Libby.
Posted by: Bill Otis | Nov 24, 2009 11:36:16 PM
"...Indeed (W) was under a good bit of pressure from segments of the Republican Party to grant a full pardon. I understand where they were coming from, but I thought (Libby's) crime was too SERIOUS to merit a pardon."
First I wish you'd explain why lying to a bureaucrat (albeit an exalted one) is an unpardonable offense. Or why, if such lies are tantamount to perjury, agents don't have to swear in subjects/targets or read them their rights before interviewing them.
Then I wish you'd explain why prosecutors seem compelled these days to characterize as SERIOUS any number of seemingly innocuous offenses that aren't self-evidently serious as are as murder, rape, theft, arson, etc.
And while I'm truly glad you supported so many downward departures, I wish you'd make a non-political case for a practice in which one side (the government) gets to offer something of value (liberty) in exchange for favorable testimony. I can only imagine what would happen to a defense attorney caught doing something comparable.
Posted by: John K | Nov 25, 2009 8:24:41 PM
"First I wish you'd explain why lying to a bureaucrat (albeit an exalted one) is an unpardonable offense..."
Libby was convicted of four counts: lying to the FBI (one count), lying under oath to the the grand jury (two counts), and obstruction of justice (one count). He was acquitted of one count.
The grand jury is not a bureaucrat, and I didn't say, nor do I believe, that grand jury perjury is unpardonable. I said that this particular case did not merit a pardon (although it did merit a commutation, which is more than the Left was ever willing to say, even while huckstering for blanket clemency for crack dealers).
"...Or why, if such lies are tantamount to perjury, agents don't have to swear in subjects/targets or read them their rights before interviewing them."
Agents are not required to give Miranda warnings until the outset of CUSTODIAL interrogation. That is the precise holding of Miranda. But it's a moot point in Libby's case. Libby was a lawyer, and quite a bright one at that. There is absolutely no chance he was unaware that he could have remained silent when the agents wanted to interview him. His professional, social and political station was far above theirs -- he could have told them to make an appointment with his scheduler, and he'd see if he could, or wanted to, accommodate them.
Posted by: Bill Otis | Nov 27, 2009 10:36:56 AM