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August 22, 2013

New York Times editorial board rightly highlights "Pardon Rates Remain Low"

I was pleased to see this morning that the New York Times has this new editorial discussing clemency issues under the headline " "Pardon Rates Remain Low." Here are excerpts:

Attorney General Eric Holder said many encouraging things in his important speech on the future of sentencing reform, but the most striking thing may have been what he did not say. In all his 4,000 words on America’s “broken” legal system — and particularly on its outlandishly harsh and ineffective sentencing laws — there was not one mention of executive clemency.

That power, which the Constitution explicitly grants to the president, has always served as an indispensable check on the injustices of the legal system and as a means of demonstrating forgiveness where it is called for.  It was once used freely; presidents issued more than 10,000 grants of clemency between 1885 and 1930 alone.  But mercy is a four-letter word in an era when politicians have competed to see who can be toughest on crime....

As ProPublica has documented, the pardon process has devolved into a mockery of itself, riven by arbitrariness, racial disparity and charges of abuse.  Pardons of powerful, well-connected individuals like Marc Rich, by Bill Clinton, and Lewis Libby, by George W. Bush, have only increased cynicism about the process.

Meanwhile, President Obama’s use of the pardon power remains historically low. In four and a half years, he has received almost 10,000 applications for clemency and has granted just 39 pardons and one sentence commutation.  No one seems to know why some requests are granted and others denied.  To call it a lottery is unfair to lotteries; at least if you pick the right numbers, you’re guaranteed to win....

As the experience of many states shows, a functional pardon system must also be accountable. This can mean requiring the executive to publish an annual report on pardon policy and practice. Currently the president has no obligation to explain his grants or denials, which undermines public trust in the system.

In this light it is disheartening that the Obama administration continues to resist calls to remove the current head of the pardon office, Ronald L. Rodgers, despite a finding by the Justice Department’s inspector general that in 2008, Mr. Rodgers misrepresented material information in recommending that the president deny a petition for clemency.

In a 2003 speech, Justice Anthony Kennedy said that “a people confident in its laws and institutions should not be ashamed of mercy.” In the 10 years since that speech, requests for mercy have increased even as the prospects for reform have not. In the first 10 months of fiscal 2013, 2,000 inmates applied for commutations, more than in any single year in history.

Executive clemency may not be the ideal way to ameliorate the system’s excesses, but for many people stuck with an unjustly long sentence or a conviction that prevents them from getting jobs, business licenses or even public housing, it remains the only way....

Mr. Holder was right to call for a substantial overhaul of our criminal justice system. But any meaningful reform must include the clemency process, by which we temper our most punitive tendencies. It is long past time for the president to heed the words of Justice Kennedy and reinvigorate this fundamental executive prerogative.

Kudos to the New York Times editorial board for giving this issue significant attention in the wake of AG Holder's speech (and for the great line "[t]o call it a lottery is unfair to lotteries...."). The Obama Administration's record on this issue is truly abysmal, especially given that President Obama rode into the White House in 2008 by stressing the themes of hope and change into the White House.

Especially disconcerting is Obama's failure to date to use his clemency powers (or really to do anything of significance) to help the many thousands of low-level crack offenders still serving (now-repealed) severe mandatory minimum prison sentences based on the old 100-1 crack/powder sentencing ratio. Back in 2007 on the campaign trail in his speech to Howard Univesity (as I discussed in this 2010 law review article), then-candidate Barack Obama had this to say about those federal prisoners:

When I'm President, we will no longer accept the false choice between being tough on crime and vigilant in our pursuit of justice....  We can have a crime policy that's both tough and smart. If you're convicted of a crime involving drugs, of course you should be punished. But let's not make the punishment for crack cocaine that much more severe than the punishment for powder cocaine when the real difference between the two is the skin color of the people using them. Judges think that's wrong. Republicans think that's wrong. Democrats think that's wrong, and yet it's been approved by Republican and Democratic Presidents because no one has been willing to brave the politics and make it right. That will end when I am President.

Though I suppose President Obama deserves some credit for the passage of the Fair Sentencing Act, even the revised federal penalties under that law with its new 18-1 ratio still mean that "the punishment for crack cocaine [is] much more severe than the punishment for powder cocaine." And, more to the point of this post, the only reason I can surmise to explain why President Obama has not been willing to grant commutations to some significant number of the thousands of prisonder serving sentences that judges and Republicans and Democrats all think are wrong is because President Obama even in his second term is still , in fact, NOT "willing to brave the politics and make it right."

I know that there are at least 2000 federal prisoners who applied for clemency just this last year who continue to reasonably hope that President Barack Obama remembers that his clemency powers provide one of the very best ways for him to be "vigilant in our pursuit of justice."  But, as the NY Times highlights, in this arena many now have been hoping for nearly five years to see any real change.

Some recent and a few older posts concerning federal clemency practices:

August 22, 2013 at 12:20 PM | Permalink


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"Marc Rich, by Bill Clinton, and Lewis Libby, by George W. Bush"

false moral equivalence?

Posted by: Adamakis | Aug 22, 2013 1:14:57 PM

ELYRIA Ohio 1/22/10: "I won't stop fighting to open up government. .. we don't control every branch. But I can tell you
we have put in place the toughest ethics laws and toughest transparency rules of any administration in history. In history.
By the way, this is the first administration since the founding of the country...First time in history...we're trying to constantly open the process."

-- "To achieve health care reform, "I'm going to have all the negotiations around a big table .. "That's what I will do in bringing all parties together, not negotiating behind closed doors .. But what we will do is, we'll have the negotiations televised on
~ ~ wow, gu dearbh? ~ ~
"The McClatchy report showed that, so far, substantial negotiations on health reform have been held behind closed doors.
These include two agreements with the drug industry..." -- politifact.com

| President Obama denies knowledge of IRS report, resists call for special...|
| Two House Dems demand Lerner resignation after using lobbyist to ... |
| Key Holder deputy Weinstein resigns as inspector general releases Fast and ... |

| State Department won't fire employees over Benghazi, officials reasigned after leave, CNN - |
| Watch a CNN special investigation | Dozens of CIA operatives on the ground during Benghazi attack CNN - Aug 1, 2013: whistleblowers threatened ... have been subjected to frequent, even monthly polygraph examinations ... the rate of the kind of polygraphs alleged by sources is rare.
|NYtimes, 8/22: the Obama administration continues to resist calls to remove the current head of the pardon office, Ronald L. Rodgers, despite a finding by the Justice Department’s inspector general that in 2008...|

naught new

Posted by: Adamakis | Aug 22, 2013 2:06:47 PM

Lets not forget within the FSA was 2 levelsfor Running a drug house and 2 levels if threats of any kind were used with a drug crime (roughly speaking)...So they maybe gave crack the partial drop, but Meth got even more added on.

Considering the conv of Psuedo to weed equiv,is 5 times higher than meth itself... Now tell me where is the Justice on this one.
If the meth you was found with was charged at half of what psuedo is, then why are they chargeing the psuedo at the higher rate as if it
was pure meth they were making...Its really quite an everyday type thing at Federal Hdqtrs.. Close enough for govnt work..

Obama isnot going to do anything to tarnish his image for Federal inmates... ZERO ... Why should he has nothing to gain. Driving force..

Posted by: MidWest Guy | Aug 22, 2013 2:39:38 PM

I am very disappointed in President Obama's failure to exercise the pardon and commutation power much more frequently. Even if its excercise would subject him to criticism, he should have the courage to do what's right. I assume the current advisory system on pardons is dysfunctional. I propose that he appoint a committee of six persons: two Republicans, two Democrats, and two Independents to advise him on who should be pardoned and who should have sentences commuted. If 4 of the 6 vote for favorable action, Obama should consider taking the action, or explain in writing why he is not. And to liven up the debate, I propose that Prof. Bill Otis and Prof. Doug Berman be two of the appointees.

Posted by: Michael R. Levine | Aug 23, 2013 2:15:40 PM

I like Mr. Levine's idea. To give the committee even more credibility, I nominate two more members to the committee: Federalist (whoever he is) and Michael R. Levine

Posted by: anon14 | Aug 23, 2013 4:42:15 PM

Not a bad idea. It's a shame that the pardon and commutation power is used less and less. I think the worst (before Obama) was Busch I. He pardoned, commuted or rescinded the convictions of just 77 people during his term. Among them were some interesting folks:

For their roles in the Iran-Contra Affair
Elliott Abrams
Duane Clarridge
Clair George
Alan D. Fiers

Others: Robert C. McFarlane – National Security Adviser to President Ronald Reagan

Caspar Weinberger – Secretary of Defense under President Ronald Reagan

Armand Hammer – CEO of the Occidental Petroleum Company, contributed $110,000 to the Republican National Committee just prior to his pardon. Pardoned for illegally contributing $54,000 to Richard Nixon's presidential campaign in 1972.

Joseph Occhipinti – Federal drug agent convicted of violation of civil rights, perjury and depravation of rights. Commuted.

Myra Soble – 1957 conviction for her involvement in the Rosenberg spy ring; pardoned

Posted by: Dave from Texas | Aug 23, 2013 5:02:48 PM

I agree that Obama is a wimp when it comes to pardons and commutations.


President Herbert Hoover pardoned, commuted or rescinded the convictions of 1,385 people during his term.

President Franklin Roosevelt granted 3,687 pardons in his four terms in office.Among them are:

George R. Dale – convicted of violating Prohibition laws; pardoned after the repeal of Prohibition

Roy Olmstead – convicted for violating the National Prohibition Act; appealed, arguing that the wiretapping evidence used against him constituted a violation of his constitutional rights to privacy and against self-incrimination; U.S. Supreme Court upheld the conviction in the landmark case of Olmstead v. United States;

President Harry Truman pardoned, commuted or rescinded the convictions of 2,044 people during his term.Among them are:

Oscar Collazo – Collazo attempted Truman's assassination; Commuted death sentence to life sentence; also see listing under Carter

James Michael Curley (Mayor of Boston?-)– fraud and mail fraud; pardoned (See the movie "The Last Hurrah")

President Dwight D. Eisenhower pardoned, commuted or rescinded the convictions of 1,157 people during his terms.Among them is:

Maurice L. Schick – military court-martial for brutal murder; death sentence commuted to life imprisonment, with the condition that he would never be released. Legal challenge went to the Supreme Court, questioning the constitutionality of the punishment "Life Imprisonment Without Parole". Decided in Schick v. Reed that to be so sentenced was constitutional. He was not paroled.

Democratic President John F. Kennedy pardoned, commuted or rescinded the convictions of 575 people during his term. Among them are:

First-time offenders convicted of crimes under the Narcotics Control Act of 1956 – pardoned all!

President Lyndon B. Johnson pardoned, commuted or rescinded the convictions of 1,187 people during his term.

Posted by: anon5 | Aug 23, 2013 5:58:57 PM

I hate to say it, but when it comes to exercising executive clemency, Obama is a coward and a disgrace.

Posted by: observer | Aug 23, 2013 8:43:16 PM

"Pardons of powerful, well-connected individuals like Marc Rich, by Bill Clinton, and Lewis Libby, by George W. Bush, have only increased cynicism about the process."

This sentence, as pointed out by Adamakis, basically shows the NYTimes editorial board to be a joke. Whatever one says about Libby (and opinions differ), the pardon of Marc Rich was appalling (as was the pardon of Mel Reynolds). Libby's pardon most equates to the pardon of Susan Macdougal. The editorial board shows its partisanship and fundamental dishonesty.

I am a lot more amenable to pardons/clemency than most tough on crime folks, particularly where the person has led a law-abiding life for decades after release.

What IS funny to me is that liberals in here aren't completely embarrassed by Holder's involvement with the Marc Rich pardon. How can anyone trust such an immoral and dishonest character or have anything nice to say about the person who made him AG.

Posted by: federalist | Aug 24, 2013 10:23:20 AM

Federalist, as a liberal, I agree that the pardon of Rich was, forgive me, unpardonable. I also agree that Holder hasn't been held to account, as he should have been--for going along with it--pure political calculation--with terrible consequences--demonstrating Holder's ignorance and lack of integrity. That said, none of the commentators above have discussed the pardon of Nixon by President Ford. In my view, another unpardonable pardon. I'd be interested in your view on that.

Posted by: anon4 | Aug 24, 2013 12:20:20 PM

Michael R. Levine --

Doug and I are scheduled to do a Federalist Society podcast on mandatory minimums. We did something similar for the Huffington Post a few days ago. I don't want to force him to take too much of me at any one time.

Then there's the problem of getting President Obama to appoint me to anything, although I've heard a rumor that he's considering me for a blue ribbon panel to do a ten-year on-site inspection of the back side of the moon.

Posted by: Bill Otis | Aug 25, 2013 12:37:43 AM

Better yet, shift to a Reasoned Correction Paradigm, because it will work.

Posted by: Tom McGee | Aug 25, 2013 3:18:44 PM

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