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March 15, 2010

"The Twilight of the Pardon Power"

The title of this post is the title of this article from former US Pardon Attorney Margaret Colgate Love now available via SSRN.  Here is the abstract:

Throughout our nation’s history, the president’s pardon power has been used with generosity and regularity, to correct systemic injustices and to advance the executive’s policy goals. Since 1980, however, presidential pardoning has fallen on hard times, its benign purposes frustrated by politicians’ fear of making a mistake, and subverted by unfairness in the way pardons are granted.  The diminished role of clemency is unfortunate, since federal law makes almost no provision for shortening a prison term and none at all for mitigating the collateral consequences of conviction.  It would be bad enough in these circumstances if presidents had made a conscious choice not to pardon at all, or to make only token use of their constitutional power. But what makes the situation intolerable is that, as the official route to clemency has all but closed, the back-door route has opened wide. In the two administrations that preceded President Obama’s, petitioners with personal or political connections in the White House bypassed the pardon bureaucracy in the Department of Justice, disregarded its regulations, and obtained clemency by means (and sometimes on grounds) not available to the less privileged. Much responsibility for the desuetude and disrepute into which a once-proud and useful institution of government has fallen must be laid at the door of the Justice Department, which during the past two administrations failed in its responsibilities as steward of the power, exposing the president to embarrassment and the power to abuse.  To date, President Obama has taken no steps to reform and reinvigorate a pardon process that has, in Justice Anthony Kennedy’s words, been “drained of its moral force.”

Who hi-jacked the president’s pardon power?  Is it worth rescuing, or should it be left to die in peace? To find the answers, this article first looks at pardoning practices in the 19th and early 20th centuries, a time when the pardon power played an important operational role in the federal justice system. It describes how pardon evolved into parole, and after 1930 came to be used primarily to restore rights of citizenship.  It then examines the reasons for pardon’s decline in the 1980s and its collapse in the Clinton Administration.  Finally, it argues that President Obama should want to revive the power, and suggests how he might do it.

Some related recent posts on federal clemency realities:

March 15, 2010 at 09:54 AM | Permalink


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You've also written about state clemency matters. In Michigan, where I practice, the governor's clemency power is subject to statutes requiring clemency matters to go through the Parole Board. For 2008, the last year for which the Department of Corrections has published figures, it acted in over 32,000 matters involving prisoner reviews, essentially all for parole. The report notes there was one grant of a commutation in a murder case, to a parolable sentence. When the ratio is 32,000-to-1 against clemency, it's dead in practice.

Posted by: Greg Jones | Mar 15, 2010 10:49:28 AM

Bad headline: I thought you meant Ruckman's blog had gone under!

Posted by: Gritsforbreakfast | Mar 15, 2010 12:37:01 PM

The route back to respectability would be to de-politicize the pardon/clemency process. Re-introduce parole to the federal system, and give the parole board the right to reduce or eliminate the collateral consequences of conviction, such as the loss of voting and/or gun rights. Better yet, don’t make those collateral consequences automatic, as so many of them now are. The upshot would be fewer defendants for whom a presidential pardon is the last resort.

Posted by: Marc Shepherd | Mar 15, 2010 2:00:28 PM

And just how, pray tell, is a FEDERAL parole board/commission supposed to restore voting rights which are a creature of STATE, not federal laws? Further, please tell us, Ms. Love, of the epic battles YOU so valiantly fought to restore the pardon power to its rightful place when YOU were in the politically appointed position of Pardon Attorney?

Posted by: anon | Mar 15, 2010 6:09:49 PM

Sentencing guidelines have taken the rogue judge out of the picture. In most jurisdictions, there's almost nobody in prison today who was sentenced before sentencing guidelines went into effect. There are occasional upward departures from the guidelines. However, those departures are, when challenged on appeal, usually upheld as appropriate. Therefore, with most prisoners serving sentences which are "reasonable" by the guidelines definition, and almost everyone else serving a sentence that's either below guidelines, or which has been upheld as "reasonable" on the facts, there's no perceived need for clemency.

Posted by: Greg Jones | Mar 16, 2010 11:19:26 AM

Reports of Ruckman's blog death are exaggerated :-) Blogger required a "migration" but I think I have managed to survive it. Best,

Posted by: P.S. Ruckman, Jr. | Mar 16, 2010 9:30:30 PM

Thanks for the link on pardon power. Great read

Posted by: laborashirt | May 24, 2010 11:22:36 AM

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