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August 24, 2014

"Clemency and the Unitary Executive"

The title of this post is the title of this notable new paper by Rachel Barkow now available on SSRN. Here is the abstract:

President Obama’s use of enforcement discretion to achieve important domestic policy initiatives — including in the field of criminal law — have sparked a vigorous debate about where the President’s duty under the Take Care Clause ends and legitimate enforcement discretion begins.  But even with broad power to set enforcement charging policies, the President controls only the discretion of his or her agents at the front-end to achieve policy goals.  What about enforcement decisions already made, either by his or her own agents or actors in previous administrations, with which the President disagrees?  The Framers anticipated this issue in the context of criminal law and vested the President with broad and explicit back-end control through the constitutional pardon power.  But while centralized authority over enforcement discretion at the front-end has grown, the clemency power finds itself falling into desuetude.

This Article explores the fall of the clemency power and argues for its resurrection as a critical mechanism for the President to assert control over the executive branch in criminal cases.  While clemency has typically been referred to as an exercise of mercy and even analogized to religious forgiveness, it also serves a more structurally important role in the American constitutional order that has been all but overlooked.  It is a critical mechanism for the President to control the executive department.  Those in favor of a unitary executive should encourage its more robust employment.  But even critics of unitary executive theory should embrace clemency as a mechanism of control because, whatever the merits of other unitary executive claims involving military power or oversight over administrative agencies, clemency stands on different footing.  It is explicitly and unambiguously grounded in the Constitution’s text, and it comes with an established historical pedigree.  It is also a crucial checking mechanism given the landscape of criminal justice today.  The current environment of overbroad federal criminal laws and excessive charging by federal prosecutors has produced a criminal justice system of unprecedented size and scope with overcrowded and expensive federal prisons and hundreds of thousands of individuals hindered from reentering society because of a federal record.  Clemency is a key tool for addressing poor enforcement decisions and injustices in this system, as well as checking disparities in how different United States Attorneys enforce the law.

August 24, 2014 at 10:14 PM | Permalink


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Not to be cruel but these authors would be better to save their time for other matters. No one seriously disagrees on the policy utility of the Pardon power. It has fallen into disuse entirely as a political matter. In these partisan times pardons have very little political upside and huge political downsides. If the executive pardons someone they get only a momentary blip of approval from the cognoscenti and if they person who gets pardoned goes all Willie Horton then the executive will never hear the end of it. Pardons are simply not worth the political risk.

Posted by: Daniel | Aug 24, 2014 10:56:14 PM

@Daniel, et. al: At the state level, after coming under attack in the '90s at the state and federal levels, both executive clemency and habeas have been making a little-remarked comeback as a result of the hundreds of exonerations nationwide, challenges to old, inaccurate forensics, and some governors' discomfort with a) the death penalty and/or b) more extreme drug-war sentencing, all of which predated the recently announced federal review of drug cases for potential clemency.

It's taken awhile, and it's spotty, but there's evidence here and there of a budding renaissance in clemency and other post-conviction relief.

Posted by: Gritsforbreakfast | Aug 25, 2014 7:36:19 AM

"Those in favor of a unitary executive should encourage its more robust employment."

Well, they have to be of the type who care about this aspect of the presidency.

It is akin to those who are for a robust use of the military counseling a pacifist or isolationist on a robust use of the commander-in-chief power.

Overall, the executive covers so much ground that it is likely any given President isn't going to use all aspects of it broadly. They will pick and choose, using limited resources in certain ways. This is a reason why this President used less effort (for good or ill) in his first term filling judicial vacancies.

But, eventually the end of the filibuster for appointments did help that cause some and pushing for reform in the pardon area is appreciated. As the second comment suggests, there is some evidence that some room for improvement has a chance.

Posted by: Joe | Aug 25, 2014 10:24:18 AM

I can't speak for every package on the guys desk but my gal has submitted one. She was convicted for drug sales in 1994, 21 years later she and I are looking for a way to get her home. The fed system is tilted in a direction the framers probably wouldn't agree with and this tool is there for balancing it out. I do agree this admin doesn't do much for anyone unless it gets them something in return, and it gets them off the self server list IMO.

Posted by: Christian Reynolds | Aug 25, 2014 8:47:20 PM

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