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June 26, 2012

"15 Law Professors Call on Senate to Investigate Office of U.S. Pardon Attorney"

The title of this post is the heading of this new press release from Families Against Mandatory Minimums, which gets started this way:

Today, a group of 15 leading constitutional and sentencing law academics and law professors issued a letter asking Senate Judiciary Committee leaders to hold a hearing to investigate allegations of misconduct by the Office of the Pardon Attorney (OPA).  In particular, the letter asks the committee to examine current pardon attorney Ronald Rodgers’ alleged “withholding of critical information from the President” and of “troubling racial disparities in the pattern of grants and denials of clemency.”

The letter was prompted by recent articles by ProPublica investigative journalist Dafna Linzer in The Washington Post, which revealed serious problems in the way the pardon attorney’s office handles clemency requests.  Late last year, a story documented what appears to be a disturbing racial disparity in pardon grants.  Then, a May 13 article told the story of Clarence Aaron, who is serving a life sentence and was denied a commutation by President George W. Bush after Rodgers allegedly misrepresented facts about his case to White House counsel.

The full text of the letter (with the names of all the signatories) is available for download below, and here are excerpts:

As criminal and constitutional law professors with an interest in sentencing and corrections, we write to urge you to convene a hearing at your earliest convenience to examine the Office of the Pardon Attorney’s conduct with regard to applicants for sentence commutations.  Recent revelations about the workings of that office convince us that further investigation is called for....

The President’s pardon power is unique; it is in many instances the only route to justice available for federal prisoners who genuinely merit consideration for early release. The Pardon Attorney is the gatekeeper for the thousands who apply for clemency each year.

Virtually the only governmental check on the pardon power of the president is the ability of the Congress to investigate its use. While Congress properly plays no role in the actual consideration of clemency petitions, there is a duty of oversight relating to the operation of this office. Pursuant to that important duty, we urge you to convene a hearing at your earliest convenience, and will offer whatever help we can.

Download 062612 Law Professor Letter OPA

Regular readers will not be surprised to learn that I am strongly supportive of the spirit of this letter, but they may be surprised to learn that my name is not at the bottom of it.  Though I welcome a congressional investigation of the OPA, I strongly favor that the President (or Congress through whatever constitutional means) wholly abolish the OPA because I do not think it appropriate or sound that an office within the US Department of Justice plays any gatekeeping role in the clemency process.

I certainly believe and hope the current OPA could do a much better job than its modern track record and investigative reports indicate.  I also believe and hope that a congressional investigation could prod OPA toward useful reforms.  But rather than just urge investigation and reform of the status quo, I favor more significant structural changes such as, e.g., the creation of a clemency czar and/or a clemency office/council working inside the White House rather than inside the Justice Department.  I worry that calls to investigate the work and workings of the OPA suggest the appropriateness of (and thus indirectly support) having an office inside DOJ serving as a clemency gatekeeper.

June 26, 2012 at 12:38 PM | Permalink

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