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July 10, 2012

"Is the Federal Pardon Process Racially Biased? It’s Time to Get Answers"

The title of this post is the title of this new commentary by Julie Stewart now up at The Crime Report.  Here are excerpts:

Dafna Linzer, the Pro Publica reporter whose dogged determination resulted in two front-page Washington Post stories on the OPA, ... concluded that whites are four times as likely as non-whites to receive a presidential pardon, even when the circumstances of their crimes are roughly the same.

Seven months have passed since Ms. Linzer’s first expose was published. Yet neither the OPA nor the DOJ has responded publicly to its serious allegations of racial bias. When asked at FAMM’s briefing if she was surprised by DOJ’s public silence, Ms. Linzer observed that if the type of racial discrimination produced by the current pardon process were found at the state or local government level, DOJ would probably get involved and initiate an investigation. “Yet here,” she said, “we have a case of contemporary race disparity happening within the Justice Department itself.”

It’s time to get some answers. This week, 15 leading constitutional and criminal law professors sent a letter to the U.S. Senate Judiciary Committee urging the committee to investigate the OPA. “While Congress properly plays no role in the actual consideration of clemency petitions,” the group wrote, “there is a duty of oversight relating to the operation of this office.“

The law professors’ letter is the fourth request for a review of OPA.... Concerns about OPA’s misconduct are bipartisan and cut across administrations. Former Maryland Gov. Bob Ehrlich, a Republican, co-authored an op-ed with me that called for a congressional investigation. Conservative columnist Debra Saunders has long championed clemency for Clarence Aaron and expressed outrage and surprise at the intentional torpedoing of his application, the evidence of which was reported by Ms. Linzer.

And Kenneth Lee, Associate White House Counsel to George W. Bush, told Ms. Linzer that Clarence Aaron’s petition was presented to him “in the least favorable light to the applicant".

The President’s constitutional authority to grant clemency is too important to be left in the hands of people who have their own agenda. Commutations can correct the excesses of harsh, mandatory minimum sentences. Pardons ensure that rehabilitated individuals get the clean slate they need to land a job or to get a line of credit to start a new business. More generally, the clemency power recognizes that our justice system is imperfect, and that prosecutors and police sometimes make mistakes....

The OPA’s only job is to assist the president by providing him with the unbiased information he needs to fulfill his constitutional clemency power fully and fairly. It is clear that the OPA is failing miserably. Since the OPA (and DOJ) will not even respond publicly to serious allegations of incompetence and corruption, Congress must investigate.

Related posts concerning federal clemency practices:

July 10, 2012 at 06:12 PM | Permalink

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Comments

No, clemency is denied equally to everyone.

Posted by: C.E. | Jul 10, 2012 10:46:32 PM

Why not just abolish the OPA? If it doesn’t exist, then it can’t discriminate. Nothing in the Constitution requires a full-time office of lawyers to advise the president on pardons.

Posted by: Marc Shepherd | Jul 11, 2012 8:28:19 AM

Marc makes an excellent point, and I would add only one caveat. If OPA is abolished, what will happen is that prisoners and their lawyers and backers will write their eight zillion letters directly to the White House. Said letters will land on the desk of some Associate White House Counsel who was unlucky enough to draw that portfilio. Since his boss, the Counsel to the President, will have given this poor guy 15 other complicated things to do, all of which the President wants boiled down to a one-page decision memo by 4 pm, the letter pile will get bigger and bigger, making the chances of even looking at it go from very small to zilch. This is because tomorrow, the President will want 15 other things done that are even more of a mess than today's.

Those who know where my meanderings in this town have taken me will recognize that I know whereof I speak.

Posted by: Bill Otis | Jul 11, 2012 9:04:26 AM

Mark,

Because that would reduce the rent commanded by the criminal cult enterprise and we just can't have that, now can we?

Posted by: Soronel Haetir | Jul 11, 2012 9:05:19 AM

I agree with Bill Otis that if the OPA were abolished, all of those requests for mercy would just go to the White House itself. But the White House is already lobbied heavily for a panoply of outcomes that various constituents want. They are used to it.

Of course, without the OPA pardons would be rare, and they should be. Pardons should be used for correcting the odd miscarriage of justice, not something that ex-cons have to routinely petition for in routine cases, many years after their sentences have been served.

Posted by: Marc Shepherd | Jul 11, 2012 9:23:21 AM

well marc here's a thought maybe if the govt didn't add so many little GOTCH'S to a conviction and put in place a real sytem that took an individuals criminal history off the WORLD WIDE WEB after a set amount of years ABSENT a showing by the govt of a continuing danger (of course somoene with a CONTINUING DANGER's ass should be in prison) so that past could stop be shoved into someone's face 10-20-30 YEARS after the fact!

people wouldn't need a damn pardon to get on with life!

Posted by: rodsmith | Jul 11, 2012 10:36:30 AM

On the other hand, if OPA were abolished, it could be replaced by something outside DOJ - gasp! - so that the prosecutor who overcharged the case in the first place wouldn't get to keep vetoing appeals for clemency.

Posted by: Thinkaboutit | Jul 11, 2012 10:47:51 AM

Thinkaboutit --

The original prosecutor's views are sought, as they should be, but have nothing even approaching veto power. Indeed, my experience with it is that the line prosecutor has less of a say than anyone else.

Marc Shepherd has the correct take on this. Pardons should be, and historically have been, reserved for the very unusual case where there was a clear miscarriage of justice -- and a "miscarriage" not as defined by the NACDL or FAMM or the ACLU, but by broadly accepted definitions. The pardon power was not designed to encourage the President to act as an uber-NACDL when the real thing has flopped (for example, in tryng to get drugs legalized across the board) in Congress and the judiciary.

Posted by: Bill Otis | Jul 11, 2012 12:24:33 PM

I agree with @rodsmith. Most presidential pardons amount to restoration of the ex-con’s civil rights, long after his or her sentence was served. This ought to be the rule, rather than the exception.

After all, for crimes having a sentence less than life in prison, a full return to productive citizenship ought to be the goal, rather than the rare exception. But this is something that Congress could provide for by legislation.

Current policy — whether one agrees with it or not — is that conviction leaves a permanent stain, and if that’s the policy we want, the president shouldn’t alter it in random cases (which is basically the way the OPA works).

Posted by: Marc Shepherd | Jul 11, 2012 12:29:27 PM

Bush granted my commutations than OPA recommended to him so I am not sure there will be less if OPA is cut out.

Posted by: Thinkaboutit | Jul 11, 2012 1:39:45 PM

It is simply not true that pardons have "historically" been "reserved for the very unusual case where there was a clear miscarriage of justice." Whether the pardon power *should* be used in this fashion is a separate question. But no one can review the reports of the pardon attorney from the late 19th century until the early thirties, when DOJ stopped publishing the reasons for pardon, and fairly conclude that pardons were reserved only for the exceptional case. Nor in my experience (1997 to 2010) were most pardons "extraordinary" in any sense of the word; the vast majority were granted to ordinary citizens for garden-variety offenses, most often to deal with the lingering collateral consequences of a conviction (as others have noted). Pardon also plays an important psychological function, in so far as it signifies official forgiveness for an offense, parallel to the official moral condemnation expressed in a judgment of conviction. It works both ways.

Commutations are a bit different, to be sure. Speaking very generally, prior to 1930 or so, presidential commutation played a quasi-appellate function in the federal system. Commutations were routine, especially considering the relatively small size of federal system, and were granted for all sorts of reasons, including, but *not* limited to obvious legal errors. Again, go read the reports of the pardon attorney is you have any doubt about this. Over time, this aspect of the president's role was increasingly displaced by the courts, and the bulk of the president's clemency practice shifted toward post-sentence pardons. This is perhaps as it should be, although it doesn't follow that commutations are any less importsant today, given the elimination of other second look mechanisms.

Posted by: Sam Morison | Jul 11, 2012 2:50:48 PM

Sam Morison --

"But no one can review the reports of the pardon attorney from the late 19th century until the early thirties, when DOJ stopped publishing the reasons for pardon, and fairly conclude that pardons were reserved only for the exceptional case."

So they were used for typical cases? Not hardly. As you know, the huge majority of cases, way over 90%, historically and now, don't get pardons or any sort of executive clemency.

"Nor in my experience (1997 to 2010) were most pardons 'extraordinary' in any sense of the word; the vast majority were granted to ordinary citizens for garden-variety offenses, most often to deal with the lingering collateral consequences of a conviction (as others have noted)."

What you say is true as far as it goes, but what it omits is that those receiving the pardons generally had compelling stories of a return to a productive, lawful and giving life far beyond the norm, and in that sense -- a perfectly valid sense -- continuing to impose the collateral consequences of the conviction had become, although it well may not have been originally -- a miscarriage of justice.

Posted by: Bill Otis | Jul 11, 2012 3:39:48 PM

I don't know where you're getting these facts. Ordinarily, a person must file a petition to even be considered, of course, but the grant rate historically was quite high by contemporary standards, far more than 10% of applicants. The relatively low grant rate is a recent phenomenon. It would be more historically accurate to say that our culture was far more forgiving than it has been in recent decades.

Moreover, I've read those early reports, as well as several thousand modern pardon recommendations. I don't think it's remotely true that most successful applicants have "had compelling stories of a return to a productive, lawful and giving life far beyond the norm." To be sure, it would be quite unusual for a successful pardon applicant to have gotten into trouble with the law subsequent to the offense for which pardon was sought, but that's hardly extraordinary. And while some certainly have led extraordinary lives, the truth is that the majority are pretty ordinary.

What's wrong with that? Why should a person who's paid his debt to society, and lived a law-abiding life for some period of time, have to be Mother Teresa to be relieved of collateral disabilities, or even to have the solace of being officially forgiven? Why should pardons be rare? The only scandal is that OPA doles out the favorable recommendations in such an arbitrary manner.

Posted by: Sam Morison | Jul 11, 2012 4:19:30 PM

Sam --

Bill makes up "facts" as he goes.

But, isn't the point of the post here that racial discrimination continues to be endemic in our criminal justice system --- from charging through the end game?

Posted by: Calif. Capital Defense Counsel | Jul 11, 2012 5:59:49 PM

First, as compared to the number of convicts and ex-convicts (i.e., the set of potential beneficiaries of a pardon, which is what I was talking about) the number of pardons is vastly less than ten percent, as I said. Second, recent decades would seem to be a far more relevant period from which to draw comparisons than what was going on 80 or 100 or 150 years ago.

"It would be more historically accurate to say that our culture was far more forgiving than it has been in recent decades."

If a forgiving attitude worked better, we'd see more of it. We had a forgiving (some might say indulgent) attitude toward crime and sentencing in the late sixties and seventies, and for our trouble we got an exploding crime rate. The country is not required to return to the dangerous policies of the past so that the Huffington Post will look more kindly upon it.

"Why should a person who's paid his debt to society, and lived a law-abiding life for some period of time, have to be Mother Teresa to be relieved of collateral disabilities, or even to have the solace of being officially forgiven? "

I don't recall saying that anyone had to be Mother Teresa, and the reason pardons should not be handed out like candy is that rewriting history is serious business. If you want an expungement, go to court.

A conviction imposes numerous collateral disabilities; this is not exactly a secret. When you commit a crime, you assume the risk. Except in rare instances, it is not up to the President of the United States to spend his extremely scarce time pondering whether he should blank out with his signature the outcome of months or years of judicial deliberation.

Posted by: Bill Otis | Jul 11, 2012 6:11:09 PM

CCDC -

"Bill makes up 'facts' as he goes."

You wouldn't recognize a fact even if your saintly clients ever told you one.

Posted by: Bill Otis | Jul 11, 2012 7:31:16 PM

ahh bill! bill! shame on you. Yes we know a conviction imposes numerous collateral disabilites. the proble we have now is that in the last 20-30 years it's become the norm here to just KEEP ADDING THEM sometimes YEARS after the fact!

Hard to FORESEE a collaterial disabilite BEFORE it happens!

Posted by: rodsmith | Jul 11, 2012 11:45:09 PM

Again, Bill, you are all over the map. For example, a pardon in no sense "rewrites history," or "blanks out" the judicial process, or effects an expungement. Indeed, the Supreme Court has held that a pardoned offense can be considered under a recidivist statute, and the Sentencing Guidelines say the same thing, if the pardon was granted merely to restore civil rights. So, rest assured, no pardon grantee is going to be getting away with anything if she reoffends. Phew! I feel better already. Second, you are the one who invoked historical practice to bolster your claim that pardons have been, and ought to be, reserved for "extraordinary" cases. It was therefore fair for me to point out that you simply don't know what you're talking about, even with respect to "recent decades."

Finally, I find it striking that a self-described legal conservative would disavow the importance of historical practice. If you think this is something that is not worth the President's time, then your quarrel isn't with me or the Huffington Post. It's with the Founders, who deliberately wrote the pardon power into the Constitution. When the President is repeatedly called upon to address a legal lacuna, it may well highlight the need for legislative reform, but it is not an abberation. It is part of the constitutional design.

Posted by: Sam Morison | Jul 12, 2012 6:37:17 AM

I should have added that the relevant universe of cases is obviously those who actually seek clemency of some sort, as opposed to all persons who've been convicted of a federal offense. The question on the table is whether Presidents have exercised the pardon power only in "extraordinary" cases. But that depends on the reasons that a case was granted or denied.

With the exception of an amnesty proclamation, the pardon process is initiated by the applicant. If a person isn't granted clemency because he didn't seek it, and the merits of his case were therefore never considered by the President, it does not follow that he would have been a poor candidate and is thus unworthy of pardon. It simply means that he didn't ask. To use an analogy, if you want to know, say, Peyton Manning's pass completion percentage, you would only count those plays in which he actually attempted a pass. If you counted each offensive play, including those in which he didn't attempt a pass, you'd end up with an artificially deflated number.

Posted by: Sam Morison | Jul 12, 2012 8:10:22 AM

To address the question, yes there is no doubt racial disparity in the clemency process. Realistically - this has little impact - clemency is not an issue in looking for releif from our increased sentences and mandatory minimums without parole.

P.S. Ruckman has a great graph on his blog Pardon Power showing why it is barely on the radar screen. Clemency has almost disappeared. Nixon granted 1 in every 3 applications. Obama granted 1 in every 290. When looking only at commutation, it is even grimmer. Nixon granted 1 in every 15, Obama 1 in every 5,557.

No camparisons can be drawn about crime in the 70s and todays criminal justice system. Since the 70s, federal criminal law has cascaded and is now out of control. Yes - this is the fault of the Legislative branch, but the result is hundreds of billions of federal dollars being used to build a bureaucracy of government workers to investigate and prosecute the volume of new federal crimes. In addition to these folks, we have a prison system to match the new dynamic.

We've gone well beyond taking dangerous actors off the streets. It is fiscally irresponsible and has done nothing for justice.

Posted by: beth | Jul 12, 2012 12:11:51 PM

no no beth!

i have to call you on this one!

"federal criminal law has cascaded and is now out of control. Yes - this is the fault of the Legislative branch,"

Like the old saying "it takes two to tango" Each and every president is just as GUILITY as the legislative branch since they just had to say "NO" and refuse to sign them!

Posted by: rodsmith | Jul 12, 2012 12:36:55 PM

and let us not forget the judicial branch which could have at anytime done the same "just say NO" when the first individual charged showed up in front of one of them.

Posted by: rodsmith | Jul 12, 2012 12:38:51 PM

Bill, what do you think of Alexander Hamilton's suggestion that criminal codes have a general tendency toward hyper-severity and, as a result, there should be "easy access" to mercy?

Posted by: P.S. Ruckman, Jr. | Jul 14, 2012 11:09:45 AM

Said letters will land on the desk of some Associate White House Counsel who was unlucky enough to draw that portfilio.

Posted by: Celtics Snapback | Sep 11, 2012 8:17:17 PM

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