June 2, 2018
"Pardon System Needs Fixing, Advocates Say, but They Cringe at Trump’s Approach"
The title of this post is the title of this lengthy new New York Times article. I recommend it in full, and here are excerpts:
For those who view the Justice Department’s pardon system as slow and sclerotic, with its backlog of more than 11,000 cases, they need only look to the case of Matthew Charles. Mr. Charles was sentenced in 1996 to 35 years in prison for selling crack cocaine. In prison, he took college classes, became a law clerk and taught fellow inmates. He was released early, in 2016, and began rebuilding his life, volunteering at a food pantry and even falling in love.
Last month, Mr. Charles was sent back to prison after a federal court determined that he did not technically qualify for early release. His lawyers plan to ask the Justice Department to commute the rest of his sentence, and he appears to fall within its guidelines for clemency. But with nearly 9,000 petitioners for a commutation ahead of him, it could take years for federal law enforcement officials to decide his fate.
Cases like Mr. Charles’s make some criminal justice reform advocates say they would welcome a reform-minded president willing to bypass the system and more boldly wield the constitutional power to grant pardons.
Now they have one in President Trump, who has pardoned five people in his first 17 months in office and bypassed the Justice Department’s recommendation system to do so. This week, he pardoned Dinesh D’Souza, the conservative commentator who pleaded guilty in 2014 to violating campaign finance law. Mr. D’Souza responded on Twitter by claiming victory over what he viewed as a political prosecution and by mocking Preet Bharara, the former United States attorney in Manhattan whose office prosecuted the case.
But by choosing to pardon political supporters whose cases largely failed to meet the basic guidelines for pardons, Mr. Trump could turn a slow and imperfect system into an unequal and unjust one, both liberal and conservative advocates warn, in which those with fame, money or access to the president’s ear are first in line to receive clemency.
“A more regular and robust use of presidential clemency, and a willingness to go around the Justice Department process, would be applauded by many,” said Kevin Ring, a conservative public policy expert and the president of Families Against Mandatory Minimums. “The issue is whether the president will still apply standards and meritocracy. Will he weigh the injustices and mete out justice to reflect the needs of a situation? That doesn’t seem to be the case.”...
The pardon office has a reputation for slow decision making, in part because of the time needed to carefully vet a case. Of the backlog of 11,203 pardon and commutation cases, only 2,876 have been filed since Mr. Trump became president. A lack of resources has also bogged down the process, according to officials involved. The previous pardon attorney, Deborah Leff, resigned because she said she could not get the resources necessary to meet Mr. Obama’s goal to prioritize petitions that would shorten sentences for nonviolent drug offenders....
Advocates who want to see the pardon system overhauled generally support its guidelines for granting pardons and commuting sentences. In general, felons wait five years after conviction or release to petition for a pardon. They must show evidence of rehabilitation and demonstrate that they have led responsible and productive lives after release for a significant period of time. The recommendations of officials including federal prosecutors and judges are also taken into consideration.
“A president that circumvents this system is not necessarily a bad idea,” said Shon Hopwood, Mr. Charles’s lawyer. “Legal scholars have argued for years that it’s inappropriate to have the office of the pardon attorney at the Justice Department. It asks the people who grant pardons and clemency to correct their colleagues, the prosecutors who put people in prison.”
Some regular readers may recall that, way back in 2010, I urged Prez Obama to structurally change the federal clemency system in this this law review article titled "Turning Hope-and-Change Talk Into Clemency Action for Nonviolent Drug Offenders." Here is a snippet from that piece (updated for Trumpian times):
President [Trump] ought to seriously consider creating some form of a "Clemency Commission" headed by a "clemency czar."... Though a "Clemency Commission" headed by a "clemency czar" could be created and developed in any number of ways, ... [the] basic idea is for President [Trump] to create a special expert body, headed by a special designated official, who is primarily tasked with helping federal officials (and perhaps also state officials) improve the functioning, transparency, and public respect for executive clemency. Though the structure, staffing, and mandates of a Clemency Commission could take many forms, ideally it would include personnel with expertise about the nature of and reasons for occasional miscarriages of justice in the operation of modem criminal justice systems — persons who possess a deep understanding that, in the words of James Iredell, "an inflexible adherence to [severe criminal laws], in every instance, might frequently be the cause of very great injustice."
The Clemency Commission could and should study the modem causes of wrongful conviction, "excessive" sentences, and overzealous prosecutions, and then make formal and public recommendations to the President and other branches about specific cases that might merit clemency relief or systemic reforms that could reduce the risk of miscarriages of justice. In addition, the Commission could be a clearinghouse for historical and current data on the operation of executive clemency powers in state and federal systems. It could also serve as a valuable resource for offenders and their families and friends seeking information about who might be a good candidate for receiving clemency relief. Though the creation of a Clemency Commission would be an ambitious endeavor, the effort could pay long-term dividends for both the reality and the perception of justice and fairness in our nation's criminal justice system.
Prior recent related posts about Trumpian clemency activity:
- As he had hinted, Prez Trump decides to make his first use of the clemency power a pardon for Joe Arpaio
- "President Trump Commutes Sentence of Sholom Rubashkin"!?!?!
- Prez Trump issues his second pardon; Kristian Saucier, whom prosecutors sought imprisoned for six years, served year for taking photos in classified sub room
- Prez Donald Trump officially pardons Scooter Libby
- After four high-profile clemencies, Prez Trump issues a bunch of denials
- Might Kim Kardashian West actually convince Prez Trump to grant clemency to federal drug offender?
- As Kim Kardashian heads to White House, I hope she advocates for many federal offenders excessively sentenced
- Prez Trump meets with Kim Kardashian to discuss clemency ... and then tweets that he "Will be giving a Full Pardon to Dinesh D’Souza"
- Prez Trump suggests to reporters there will be more episodes of "Celebrity Clemency"
June 2, 2018 at 04:22 PM | Permalink
This seems more like treating the symptom then the addressing the causes. I don't think there is anything inherently wrong with how the pardon power was constructed in the Constitution. Nothing about Trump's use of the pardon power is surprising to me. His character and values were laid out in the open for voters, and they elected him president. He has been consistent in who he has portrayed himself to be, and his use of pardons appears to me as evidence of that consistency. In other words, it's not the power or privilege that is the problem, but the person or persons who are elected into the positions that posess said power.
Additionally, we stopped having institutional checks on the overreach of one branch with the formation of parties (factions), which are able to consolidate and coordinate the powers and actions of each branch. Members of Congress are not collectively motivated by a dominant interest in their institution, jealously gaurding it's perogatives, but rather towards their party and it's broader goals. Democratic members of Congress will defend alleged overreach by a Democratic president, and vise versa with Republicans. We have found ourselves confronted with many of the outcomes of this lack of institutional defense.
Lastly, why are so many individuals in prison all dependent on one person for clemency as opposed to being distributed among 50 governors? As federal criminal laws capture a wider array of conduct, more people become federal criminals, the federal criminal population increases, but the power of pardoning remains in the hands of one. If the federal government was less involved in the business of crime and the states took a more active role, then the criminal population is dispersed among 50 different individuals with pardoning power. Seems like a more manageable work load.
I see other issues at play as well, such as the Times finding an individual it would pardon and then claiming there is a problem with the power because that person hasn't been pardoned, but a digression into the question "what is justice?" Might be too much.
Posted by: Anonuser879 | Jun 2, 2018 6:00:18 PM
The poster lady below was a drug kingpin. Although the life sentence was for distribution, who doubts she had hundreds of competitors slaughtered, to protect the non-violent distribution business. She probably also killed thousands of addicts by overdose.
Posted by: David Behar | Jun 2, 2018 10:20:54 PM