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November 6, 2010

"A no-pardon Justice Department"

The title of this post is the headline of this potent new commentary in the Los Angeles Times authored by Samuel Morison, a former staff attorney in the Justice Department's Office of the Pardon Attorney.  Here are excerpts:

The Times' well-intentioned Oct. 30 editorial bemoaning that fact that President Obama hasn't yet granted any pardons or commutations, in which the editorial board correctly notes that the president is "aided in such decisions by the Office of the Pardon Attorney in the Justice Department," betrays a profound misunderstanding of the role the pardon office plays in the clemency advisory process. In particular, The Times writes, "Ideally, presidents would give great deference to the pardon attorney's recommendations and take a liberal view of the clemency power, exercising it often and on the basis of clear standards."

This assertion is hopelessly confused.  In fact, the problem in the vast majority of garden-variety clemency cases — those involving ordinary applicants for whom a grant of clemency would not cause any public controversy — is precisely that recent presidents have given far too much deference to the pardon attorney's office.  Having spent more than 10 years as a staff attorney in that office, I can say with some authority that the prevailing view within the Justice Department is that the pardon attorney's sole institutional function is to defend the department's prosecutorial prerogatives.  There is little, if any, pretense of neutrality, much less liberality....

As a result, there is a strong presumption within the pardon office that the number of favorable recommendations should be kept to an absolute minimum, regardless of the equitable merits of any individual petition. This stance ignores the reality of a burgeoning federal prison population of more than 200,000 inmates, many serving lengthy sentences for nonviolent drug offenses, and the proliferation of collateral disabilities that hinder ex-offenders' ability to restart their lives, which the attorney general himself has criticized as a "recipe for high recidivism."

Yet the bureaucratic managers of the Justice Department's clemency program continue to churn out a steady stream of almost uniformly negative advice, in a politically calculated attempt to restrain (rather than inform) the president's exercise of discretion.  This advisory record presupposes, falsely, that the federal criminal justice system is virtually flawless; that injustices almost never occur, sentences are almost never excessive, circumstances almost never change, and mercy is almost never appropriate.

No disinterested person really believes this.  Even if most prosecutors, judges and legislators act with the best of intentions, they can and do make mistakes with some regularity, which often are evident only with the benefit of hindsight.  Not surprisingly, the frank acknowledgment of such mistakes tends to strengthen, rather than undermine, public confidence in the legitimacy of the system....

Accordingly, if Obama is going to "take a liberal view of the clemency power, exercising it often and on the basis of clear standards," as The Times suggests, he will have to defer less to the jaundiced advice he receives from the Justice Department and rely more on his own moral judgment.

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Comments

This advisory record presupposes, falsely, that the federal criminal justice system is virtually flawless; that injustices almost never occur, sentences are almost never excessive, circumstances almost never change, and mercy is almost never appropriate.

"No disinterested person really believes this. Even if most prosecutors, judges and legislators act with the best of intentions, they can and do make mistakes with some regularity, which often are evident only with the benefit of hindsight. Not surprisingly, the frank acknowledgment of such mistakes tends to strengthen, rather than undermine, public confidence in the legitimacy of the system...."

This viewpoint is very true. However, it ignores today's political reality: the pardon power has been terribly abused: see Willie Horton, Gordon Liddy, Marc Rich. For these profound errors, the truly deserving pay the price, and our criminal "justice" system just churns away, locking up more and more for longer and longer.

Posted by: anon14 | Nov 6, 2010 1:08:20 PM

"...the prevailing view within the Justice Department is that the pardon attorney's sole institutional function is to defend the department's prosecutorial prerogatives. There is little, if any, pretense of neutrality, much less liberality...."

Hmmmmmmmmmmm. Justice Department attorneys view their job as defending the prerogatives of the Justice Department, with a view toward actually doing so, rather than being "neutral."

What a scandal!

Posted by: Bill Otis | Nov 6, 2010 9:14:39 PM

i'm often with you, Bill, but would have to disagree a bit here. Perhaps the pardon office should be located outside DOJ if the mentality described is inevitable if it's a DOJ subdivision, as you suggest. The constitution does contain a pardon provision, and it seems to me a useful check on the power of DOJ to prosecute. I mean, what purpose do you think is served by having an "Office of the Pardon Attorney" that recommends denying essentially all pardons? Is that in its mission statement?

Posted by: Jay | Nov 6, 2010 9:49:12 PM

Jay --

The White House might want to consider your suggestion, to wit, placing the Pardon Attorney outside DOJ. My only point is that, as long as that Office is staffed by DOJ attorneys, those attorneys cannot fairly be criticized for failing to be neutral or liberal. DOJ is a compenent of the executive branch, and its attorneys -- like the attorneys for any client -- are not "neutral," and no one should expect neutrality.

Of course, given the tenor of the article, it's pretty clear that neutrality is not where the author is going. He wants more pardons, period.

No part of the Constitution confers on DOJ the power to make, or recommend for or against, pardons. (Indeed neither DOJ nor any other agency is mentioned in the Constitution). Pardon power rests exclusively with the President. If he chooses the prosecuting agency to make recommendations, he should expect the perspective of a prosecuting agency.

I think the author's view is biased in other ways as well. He says, without giving examples or substantiation, "...the bureaucratic managers of the Justice Department's clemency program continue to churn out a steady stream of almost uniformly negative advice, in a politically calculated attempt to restrain (rather than inform) the president's exercise of discretion."

Sorry, I don't think so. I worked at DOJ in both career and politically appointed positions. The idea that career "bureaucrats" -- most of whom are there through administrations of both parties -- act out of "political calculation" is baloney, as is the idea that they can "restrain" the President's exercise of discretion. The President can disregard any recommendation he gets, and whatever GS-15 might have made it has nothing to say about it.

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Posted by: bondsman | Nov 7, 2010 8:45:35 AM

A number of ex-cons I interviewed for a writing project declined to pursue a pardon for the reasons Morison cited as well as an important reason he didn't mention.

As the pardon process makes clear from the outset, only applicants who acknowledge guilt need apply. Pleading for clemency as a victim of injustice negates the application.

Nonetheless, as Morison accurately suggests, the Justice Department is a hostile forum for any ex-con looking for a break regardless of individual circumstances.

One can only imagine the despair in store for even the most virtuous ex-cons intent on persuading Bill or federalist or mikeinCT, et al -- they deserve a fresh start...let alone that they were innocent or wrongly accused.

Bill is quick to dismiss the notion political calculations figure in pardon recommendations. Yet the alternative -- ignorance of or indifference to potential political consequences (for the bureaucrats as well as their boss in the White House) -- strains credulity.

Letting a more neutral entity consider pardons would be the fair, just thing to do... which is precisely why the DOJ would never allow it.

God bless Samuel Morison for telling the truth.

BTW, anon14, Willie Horton's gift-that-keeps-on-giving to the Republican Party wasn't the result of a presidential pardon. Horton, a murderer, went on his historic crime spree as the beneficiary of a governor's mindlessly reckless weekend release program.

Posted by: John K | Nov 7, 2010 9:33:39 AM

Bill, I agree, Pardon Power rests exclusively with the President and choosing the prosecuting agency to make recommendations gives the recommendations that perspective.

Some of us would be very pleased if the President chose another venue for the pardon review and recommendation.

Posted by: beth | Nov 7, 2010 11:44:33 AM

I find this a bit curious. The President can't appoint someone -- you know a leftie or something with a career the leans toward sympathy with this sort of thing -- who would be likely to not be as pro-prosecution? Just because it's in the "Justice Department" shouldn't be the defining issue.

Posted by: Joe | Nov 7, 2010 12:22:49 PM

John K --

"Bill is quick to dismiss the notion political calculations figure in pardon recommendations. Yet the alternative -- ignorance of or indifference to potential political consequences (for the bureaucrats as well as their boss in the White House) -- strains credulity."

It strains YOUR credulity, anyway, since you've never been at DOJ and know zip about how it works.

Career lawyers at DOJ (i.e., your "bureaucrats") do not bear political consequences for their decisions -- such as they might be -- because they are universally and correctly understood to have no political portfolio. There are plenty of political appointees at Main Justice, and THEY are the ones who make the politically explosive decisions. And that's before the recommendations move over to the White House.

If Obama is refusing justified pardons because of political cowardice -- a charge I do not make -- take it up with him. I'm not one of his advisors.

Posted by: Bill Otis | Nov 7, 2010 2:55:10 PM


Bill,

With all due respect, you may have worked at DOJ for several years but I’m not aware that you had any involvement with the clemency program, and thus have no special insight into the process. You suggest, for example, that the pardon attorney is supposed to take the perspective of his “client,” which you assume is DOJ as a “prosecuting agency.” But this misunderstands both how the clemency advisory process has functioned historically and how OPA holds itself out to the public.

The model DOJ attorney you in mind is an AUSA, whose approach to most matters these days is one appropriate to litigation. But the clemency advisory process is not an adversarial one. Unlike most other DOJ attorneys, the pardon attorney wears two hats. He is, as you correctly note, an attorney for DOJ and thus has whatever duties any government lawyer has toward an agency client. But he is also a personal advisor to the president, pursuant to a presidential executive order, and the president is the ultimate consumer of his advice. Hence, the pardon attorney is one of the very few DOJ officials who is authorized to directly contact the White House Counsel’s Office, which is not an infrequent occurrence. And, while the specific contents of particular clemency recommendations are shielded from disclosure by executive privilege, the privilege belongs to the president. When acting in this capacity, the pardon attorney’s “client” is the president, not a “prosecuting agency.”

Moreover, when acting in this advisory role, the pardon attorney’s responsibility is precisely to give the president even-handed advice about the merits of individual cases, not simply to parrot the DOJ “prosecuting agency” line. Applicants voluntarily initiate the process by submitting a petition. Thereafter, the process is almost entirely ex parte, and applicants have virtually no due process rights to any particular procedures. They also have no access whatsoever to the contents of the pardon attorney’s recommendation, and unlike a litigant therefore have no opportunity to respond to the pardon attorney’s representations.

Under these circumstances, the pardon attorney has a moral obligation to be fair, albeit not one that gives rise to legally enforceable rights. Equally importantly, OPA routinely represents to applicants and their families, as well as members of the public, Congress and the media, that this is how each case is handled, which simply isn’t true (a point that you conspicuously do not contest). Fortunately, I don’t need to reveal privileged information to prove the point: the numbers speak for themselves. If DOJ was really looking at each of these cases on the merits, as it claims, there would be more favorable recommendations and hence more grants.

You also scoff at the notion that career officials can restrain the president’s exercise of discretion in furtherance of their own agenda, but this is exactly what happens, in at least two ways. First, it is conventional wisdom that granting clemency is a politically risky maneuver for the president, whereas a favorable recommendation from DOJ provides him with a measure of political cover. The pardon attorney exploits that widely-held belief by “churn[ing] out a steady stream of almost uniformly negative advice,” knowing perfectly well that this will put pressure on the president to deny the cases at issue. The exceptions are few and far between, as OPA itself acknowledges.

Second, since the applicant has no opportunity to see, much less contest, the pardon attorney’s advice, the pardon attorney has a free hand to characterize the facts of a case any way he chooses, submit a “recommendation” that recounts virtually no facts at all, or insist that a case be denied even in the face of sympathetic facts. Any decent lawyer can do that, especially if he adopts an adversarial attitude. And since the president typically doesn’t have any other source of information about a case, in this way the pardon attorney can effectively tie the president’s hands. Yes, of course, the president is theoretically free to exercise his discretion as he chooses -- an obvious point that no one denies -- but it blinks reality to suggest that the pardon attorney’s recommendations make no difference.

I certainly agree with you to the extent you argue that the prosecutor’s perspective deserves respectful consideration. That has always been the case -- and strange as it may seem to you, in the past many favorable clemency recommendations were initiated by federal prosecutors themselves. But the prosecutor’s voice shouldn’t be the only perspective that determines the outcome.

Moreover, even in a fair clemency system, I don’t think that all, or even most, clemency petitions should necessarily be granted. Historically, the grant rate hovered somewhere between 30-40% of applications filed. I think that’s probably about right for post-sentence pardons; currently the grant rate is under 10% in this category, reserved mostly for very old and very minor offenses, many of which wouldn’t even merit federal prosecution today. The overall percentage of commutations granted should perhaps be lower than pardons, particularly given the development of so many other legal mechanisms to protect defendants’ rights. I don’t think there is a magic number, but with a prison population in excess of 200,000, it is certainly more than a mere handful per administration.

In closing, I also agree with another point you make. There was a time when DOJ believed that the clemency program played an important role in the just administration of the federal criminal justice system, over and above day-to-day prosecutorial concerns. Sadly, those days appear to be over. It is now clear, as you say, that if the president “chooses the prosecuting agency to make recommendations, he should expect the perspective of a prosecuting agency.” Obama thus has nothing to complain about if he does not reform the advisory process, either by picking his own pardon attorney or moving the function out of DOJ altogether.


Posted by: Sam Morison | Nov 7, 2010 3:01:19 PM

i agree with you sam!

"Under these circumstances, the pardon attorney has a moral obligation to be fair, albeit not one that gives rise to legally enforceable rights. Equally importantly, OPA routinely represents to applicants and their families, as well as members of the public, Congress and the media, that this is how each case is handled, which simply isn’t true (a point that you conspicuously do not contest). Fortunately, I don’t need to reveal privileged information to prove the point: the numbers speak for themselves. If DOJ was really looking at each of these cases on the merits, as it claims, there would be more favorable recommendations and hence more grants.

You also scoff at the notion that career officials can restrain the president’s exercise of discretion in furtherance of their own agenda, but this is exactly what happens, in at least two ways. First, it is conventional wisdom that granting clemency is a politically risky maneuver for the president, whereas a favorable recommendation from DOJ provides him with a measure of political cover. The pardon attorney exploits that widely-held belief by “churn[ing] out a steady stream of almost uniformly negative advice,” knowing perfectly well that this will put pressure on the president to deny the cases at issue. The exceptions are few and far between, as OPA itself acknowledges.

Second, since the applicant has no opportunity to see, much less contest, the pardon attorney’s advice, the pardon attorney has a free hand to characterize the facts of a case any way he chooses, submit a “recommendation” that recounts virtually no facts at all, or insist that a case be denied even in the face of sympathetic facts."

Most especially about this part! and a solution is pretty simple GIVE THEM THAT RIGHT just like in any other step in the justice system for an american citizen. THEY have THE RIGHT TO SEE THAT EVIDENCE. Plus make those lawyers LIABLE for what they say...espeicaly those who like to shade the truth or worse!

Posted by: rodsmith | Nov 7, 2010 4:00:57 PM

Thanks for the clarification that the pardon attorney's client is the President. That does explain how unfavorable recommendations would protect their client - At least if the perception is that the public does not support pardons and clemency.

I wonder if at some point the public may ask for more aggressive action in this area. I don't see it in the near future, but perhaps I'm wrong.

Posted by: beth | Nov 7, 2010 4:52:42 PM

Bill, I just have to ask, of the thousands of recently denied clemency applications, many from people who simply want their right restored, and have waited for years and years for a simple response ... do you really believe, by your own standards that there is not a single deserving person? I mean, I know you don't "know," but what is your intuition on the matter? Is your faith in the decision making of the DOJ (from investigation and prosecution to assessment of individuals long out of prison) that strong? As someone who generally lands in the moderate/leaning conservative zone, I have to say I have never ever had that much faith in the ability of the government to do ANYTHING with that degree of perfection. That truly baffles me.

Also, if you casually eyeball the data from the OPA on recent trends in denials (http://pardonresearch.com/doj/DOJdengrants.htm), doesn't that raise even a small red flag in your mind?

Posted by: P.S. Ruckman, Jr. | Nov 7, 2010 7:16:40 PM

Sam --

Thank you for your long note -- longer than I'm going to attempt to answer. I will say only that at one time I worked in White House Counsel's Office, was on the receiving end of some of the calls you mention, and was distinctly of the impression that the Office of the Pardon Attorney was honest, balanced and forthcoming, and never once failed to answer anything I asked.

I will mention only three more things. First, one cannot say, merely from the fact that the great majority of pardon requests are denied, that the denials are biased. I am not aware of any period in history when it was NOT the case that the great majority of pardon requests were denied. Since, as you correctly point out, any defendant at all can make such a request, this is not a big surprise.

Second, you are also correct that there is no due process, as that phrase is ordinarily understoood. That is because the Constitution makes the President's pardon power plenary. It is not and never was designed to be part of the judicial process. It almost always occurs after the judicial process has run its course. What that means is that the defendant has ALREADY had all the many protections the trial and appellate courts provide. I believe it is a mistake to belittle them, or to suggest, contrary to our entire Constitutional history, that the defendant somehow is being denied fair treatment by not having adversarial proceedings extend into the White House.

Third, given the notorious political abuses that have sometimes attended pardoning and post-conviction leniency, Presidential caution in this area is unavoidable. I betray no confidence by revealing that, years after I left White House Counsel's Office, and was in private life, I publicly (in a Washington Post op-ed) recommended Presidential leniency in a prominent case. When it happened, I got slammed right on this (usually defense-oriented) forum, and, more importantly, the President was loudly denounced as a hack.

What is a "meritorious" pardon request, is, of course, a matter upon which reasonable minds can and do differ. My guess is that you and I have different outlooks, which is the stuff of which debate is made.

Thank you for your years of service at DOJ.

Posted by: Bill Otis | Nov 7, 2010 7:18:23 PM

P.S. --

If I learned anything over my years as a litigating lawyer, it was that there are always cases at the margin where a respectable argument can be made either way. This is especially so in the area of executive clemency, which is discretionary and non-rules driven to a greater degree than the majority of other decisions in criminal law. Thus I would be very surprised if there were not some pardon applications denied recently that I would have recommended granting. Such is my intuition, anyway, for whatever that may be worth.

Posted by: Bill Otis | Nov 8, 2010 10:06:50 AM

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