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May 24, 2011

Informed thoughts on President Obama's clemency work to date

In the wake of the announcement late last Friday that President Barack Obama had issued a handful of new pardons (basics here), former Pardon Attorney Margaret Colgate Love wrote to me about this President's practices to date.  With her permission, I reprint Margy's reporting here:

The Justice Department announced on Friday that President Obama had pardoned eight individuals, bringing the total number of his pardons to 17. Most of the new pardons, like the nine last December, were bestowed on people convicted decades ago, who spent no time in prison and who are relatively unknown outside their communities.

What Justice didn't announce, but what nearly three thousand people learned by e-mail on Monday morning, was that the President also denied 791 pardons and 1,947 sentence commutations. This sets a new record in number of clemency cases denied in one day, and at one stroke eliminated the case backlog in the Pardon Attorney’s office. It is hard to see how the five lawyers in that office could have produced a meaningful report for the President in all 3000 of these cases even in two years.

The way in which the bad news was delivered -- by a form e-mail – was also unusual. Two of my clients called me in tears -- not so much because they thought they were going to be pardoned (they didn't) but because of the impersonal and abrupt way the news was delivered, after both had waited years. Always in the past there was at least a letter on nice DOJ stationery signed personally by the Pardon Attorney, a comparatively classy gesture under all the circumstances. Now, apparently, those denied mercy will be so informed by USPardon.Attorney@usdoj.gov.

A quick glance at the facts of the eight successful pardon cases, based largely on accounts from local newspapers, suggests that they are indistinguishable from many of the cases denied on the same day. And, as Julie Stewart of FAMM remarked in response to the news that there had still been no commutations, it seems hard to believe that there was not a single prisoner petition among the hundreds denied last Friday that was deserving of this President's favorable consideration. There has never been a time in our history when the pardon power was more necessary to compensate for shortcomings in the legal system, and evidently never one when it was less valued by those responsible for its exercise.

I would not have thought it possible that this great power of the presidency could be further debased. Perhaps this President believes that he can take up his pardoning responsibilities in a second term, but the experience of his predecessors ought to give him pause. His record to date of using this most personal of his constitutional powers ought to give us pause as well.

Some recent and older related posts:

May 24, 2011 at 05:40 PM | Permalink


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I agree completely. But let's face reality. All O'Bama needs is for ONE commutation to go haywire, and the Republicans will Willie Horton him to death. Clinton also screwed it up with the outrgeous March Rich pardon. Then many say so did Ford with the Nixon pardon; and Bush with the Liddy commutation. (many ay he should have been convicted and sent to prison for outing a CIA agent-- ). This is what its come to. Maybe in his second term.

Posted by: Michael R. Levine | May 24, 2011 7:18:06 PM

Of course, Clinton’s Rich pardon and Bush’s Libby commutation came after they knew they would never have to face voters again. Ford’s Nixon pardon probably cost him the presidency.

There is almost no such thing as a pardon that makes the general public happy. There is zero incentive for him to do it.

Posted by: Marc Shepherd | May 24, 2011 8:12:36 PM

I agree with Margy that those denied clemency should have been notified individually and before any public annoucement. They are still citizens of the United States and should be treated with dignity. When I was charged with making the initial recommendations from the USAO (something that happened only rarely), I would not only tell the applicant in a letter; I would tell him and/or his counsel to his face.

On the merits -- well, I didn't see much discussion of the merits. Each case should be reviewed on its own facts. Generalizations here are even trickier than they are elsewhere in criminal law. But no one is OWED clemency.

Posted by: Bill Otis | May 24, 2011 8:53:05 PM

Professor Berman:

This is a very impactful article. Hopefully you, or the author, will forward it to President Obama. Maybe he'll have a twinge of conscious.

Posted by: msyoung | May 24, 2011 9:18:31 PM

The notion that the pool of pardon applicants is packed with Nixons, Richs, Libbys, Liddys ... is ridiculous. Name 5 of the 17 people Obama has pardoned, without looking up their names. Heck, just name 3!

Now, understand this, there are hundreds and hundreds of others, just like them, who have been waiting, and waiting, and waiting. A pardon will not spring them from prison. Many of them have never even BEEN in prison! It will only restore their civil rights. This is nearly so complex as people make it. The buzz in the world of electoral politics need not blind us to every reality!

Posted by: P.S. Ruckman, Jr. | May 25, 2011 5:30:20 AM

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