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May 28, 2008

Federal clemency news and notes

Gr2008052700031 Federal clemency is in the news a bit this week.  For example, this New York Times article about the Supreme Court's refusal to hear former Illinois Gov. George Ryan's appeal of his federal conviction reports that "his lawyer said he would probably seek a commutation from President Bush of what is left of his more-than-six-year federal prison sentence." 

Relatedly, among lots of great new stuff at Pardon Power is coverage of this interesting Washington Post piece about the job facing the new federal Pardon Attorney.  Here are snippets from the article:

President Bush named [Ronald L.] Rodgers last month to head the Justice Department's pardon office, a unit that has suffered under substantial backlogs after its previous leader was accused of mismanagement and of making racially offensive statements.

Rodgers inherited a stack of nearly 2,000 requests for pardons and commutations of prison sentences in the waning months of the president's administration, a time when pressure to exercise the clemency power intensifies.  "If there's ever been a time when the pardon attorney should have an impact, this is it," said P.S. Ruckman Jr., an associate professor at Rock Valley College in Illinois who studies clemency patterns.

Rodgers, a Naval Academy graduate who had worked in a drug intelligence unit at Justice since 1999, declined interview requests.  But department spokesman Erik Ablin said that the pardon office is on a "record-setting pace" for receiving clemency petitions this year. About half a dozen lawyers assist Rodgers in the small office, Ablin said....

Lawyers who represent clients seeking pardons and scholars who research clemency said they do not expect Bush, who has granted few such requests as president and in his previous role as Texas governor, to do an about-face during his last months in office.  For one thing, they said, the controversy over last-minute pardons granted by President Bill Clinton, including a pass for fugitive financier Marc Rich, lingers.  The Rich decision touched off congressional investigations and a public relations firestorm.

Rodgers's law-and-order background also may influence the process. H. Abbie Erler, a professor at Kenyon College in Ohio, pointed out that Rodgers's record as a former military official and longtime investigator in the narcotics area may not make him amenable to granting mercy to convicted felons. "That sort of sets the tone," said Erler, who wrote a recent study about the factors that contribute to pardon grants.

Bush has pardoned 157 people and commuted the sentences of six more since 2001, according to Justice Department statistics.  The majority of the cases involve offenders who committed relatively minor drug violations or white-collar crimes, experts said.  During the same period, the president denied 1,429 pardon applications and 5,683 more requests for commuted sentences.

"I don't think this president has taken the pardon power very seriously, and I don't see any indication that's going to change," said Margaret Colgate Love, the pardon attorney under President George H.W. Bush.  "I'm just waiting for the next administration.  I'm not looking for anything from this one."

This Post article strongly suggests that former Gov. Ryan ought not be holding his breath for relief from a fellow chief executive.

May 28, 2008 at 09:38 AM | Permalink


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If the President were to pardon Ryan, a former Republican governor and state attorney general, he would surely be accused of favoring political buddies, "the powerful over the people," and so forth.

This does not mean that Ryan should not be pardoned. It means that the President will be criticized as arrogant and political if he grants a pardon, and as harsh and uncaring if he doesn't. Essentially, there will be criticism for criticism's sake.

If Ryan wants a pardon, he should make his case for one on the merits, no more or less than that. And the case should not be pre-judged either for or against him based on his prior jobs or his politics.

Posted by: Bill Otis | May 28, 2008 10:42:29 AM

Bill, I surmise that Ryan is looking for a sentencing commutation, not a full pardon. And, as I recall, you advocated in the Wash Post the commutation that Lewis Libby ultimately received.

Care to explain why Ryan would not merit the same commutation mercy that you advocated for (and was given by Prez Bush to) Libby?

Posted by: Doug B. | May 28, 2008 10:52:10 AM

Ryan deserves no mercy whatsoever. Kids are dead because of him. Let him rot in jail.

Libby was a political case--pure and simple. No one begrudges Clinton for pardoning McDougal--why should anyone begrudge Bush for pardoning Libby?

Posted by: federalist | May 28, 2008 11:18:03 AM

I am someone who has been seeking a pardon (marijuana) from the Governor Of North Carolina (Easley) for 8 years and have been turned down twice. I am one who thinks that the whole pardon process is a shame that should be taken out of the President and Governors hands and be given to a panel of appointed personnel to handle the affairs of clemency/pardons thus eliminating or reducing political backlash. Pardons have to be one of the most neglected acts in our Government.

Posted by: noway | May 28, 2008 11:36:59 AM

Noway, is the process any better in Georgia or Texas, where your proposal has been adopted?

George Ryan put on a big show of hearing about each case individually, raising the hopes of those victims' families who had waited years for justice that he would, in fact, make individual determinations. Then he went ahead and issued a blanket commutation, including cases far removed from the Chicago-area scandals and involving no doubt whatever of guilt. For that act of cruelty, any commutation application should be summarily rejected.

Posted by: Kent Scheidegger | May 28, 2008 12:06:46 PM

For what its worth, recall that Justice Anthony Kennedy testified before the Senate Judiciary Committee on February 14, 2007 as follows: “Our sentences are too long, our sentences are too severe, our sentences are too harsh... [and because there are so few pardons] there is no compassion in the system. There’s no mercy in the system.”(video link accessible at Professor Berman’s Sentencing Law and Policy Blog of Feb. 15, 2007).

Posted by: Michael R. Levine | May 28, 2008 12:14:15 PM


I don't think I have the portfolio to explain why Ryan should or should not get a pardon (or a commutation, if that's what he's seeking). It's up to Ryan in the first instance to make his case.

Being inside the beltway, I knew more about Libby's case than I do about Ryan's. The one thing I'm sure of is that the clemency decision should not be made on the basis of politics.

Federalist says that Ryan is responsible for kids being dead. I don't know specifics, but he may well be right about that. My somewhat hazy memory of the case is that Ryan was convicted for taking bribes when he was Illinois Secretary of State (or some such thing) for handing out drivers licenses to people who ought not to have had them. If one of the drivers who got a license in this underhanded fashion in fact killed someone in a wreck, Ryan would have a share of culpability. Of course there may be other facts I don't know -- indeed I'd be surprised if there weren't.

As I say, a decision about clemency should be based on the facts of each individual case, individually considered. Simply because A got it hardly means that B should get it. It also hardly means that B SHOULDN'T get it. A and B have nothing to do with one another.

Ryan isn't Libby, who isn't Marc Rich, who isn't Susan McDougal. They're all different. A person who supports clemency for one is hardly ipso facto obliged to support clemency for the next.

The one thing you can be sure of is that, as I said (and you don't dispute), the President will be criticized no matter which decision he reaches on Ryan.

Posted by: Bill Otis | May 28, 2008 12:20:56 PM

Michael R. Levine:

If sentences are too long, that is a matter to be dealt with by Congress (and, to an extent, the Sentencing Commission). For the President to systematically lower sentences by mass commutations would correcty be condemned as his intruding upon the prerogatives of the legislative and judicial branches.

What if the President decided that sentences for industrial polluters were too long, and issued blanket clemency to those convicted of that offense? What would happen is that there would be calls for his impeachment, on the grounds that this was a misuse of executive power to essentially usurp Congress's authority.

Exactly the same is true if the category of offenses is drug dealing. The power of executive clemency was designed to allow the President to grant relief in exceptional cases, not to re-formulate Congress's sentencing laws on his own.

It's ironic that those most willing to criticize the President for mere signing statements want him to go light years beyond that to effectively make wholesale sentencing law by broadside use of clemency.

Posted by: Bill Otis | May 28, 2008 12:40:09 PM

I am not real familar with the pardon statistics of Georgia or Texas. I am fairly familar with the Pardons under Governor Easley of North Carolina. Governor Easley has pardoned I believe 5 people in his eight years of office. These five people were pardoned because of DNA evidence. I believe that a great many of career politicians are terrified of ruining their political careers by showing compassion to non violent felons who have made mistakes in their lives. So to answer your question, yes I think that a State like Georgia has a better system than most.

Posted by: noway | May 28, 2008 1:28:46 PM


I certainly agree with the non-transmissibility point you are making. It is something that Prof. Berman and I have discussed before in our blogs.

On the other hand, I would refine your other ideas slightly in the following manner: Bush may very well be criticized if he does not pardon Ryan, but it would certainly be criticism from a narrow pool of insiders, fellow partisans and supporters. And I would think that the next president would be shouldering just as much of that criticism.

If, on the other hand, he pardons Ryan, the ribbon is on Bush alone and there is a much greater chance that the criticism would come from the press and, as such, could possibly create a larger fire. Possibly.

All that being said, I would take the position that a Ryan pardon wouldn't create that much of a fire. Sure, there would be an effort. But what was the impact of Clinton's clemency decisions on behalf of Dan Rostenkowski, Mel Reynolds or Dorothy Rivers (all from Illinois, all decorated with "inside" influence)? Zip.

A Ryan pardon would be just as quickly forgotten as the pardons that have been given to other governors. Or, so I say. Honor to be able to chat with you about this BTW.

Posted by: P.S. Ruckman, Jr. | May 28, 2008 1:56:35 PM

"George Ryan put on a big show of hearing about each case individually, raising the hopes of those victims' families who had waited years for justice that he would, in fact, make individual determinations. Then he went ahead and issued a blanket commutation, including cases far removed from the Chicago-area scandals and involving no doubt whatever of guilt. For that act of cruelty, any commutation application should be summarily rejected."

I had forgotten about that. What a jerk. I think what often gets forgotten in the capital punishment debate is that the victims' family never asked to be in the position.

Posted by: federalist | May 29, 2008 3:03:08 AM

Professor Ruckman:

Thank you for your post. You are correct, in my view, in believing that a Ryan pardon or commutation would quickly get to be old news. Ryan undoubtedly still has some Republican friends, and, unlike Scooter Libby, is popular with important segments of the press because of his opposition to the death penalty.

My own view is that none of that should matter. You are more of an expert on this than I, to say the least, but I think pardons should be reserved for truly exceptional cases where the sentence is plainly excessive relative to the harm done by the crime, and/or the prospective pardonee has a rare record of public service.

This may seem harsh, but I do not think age and illness should count. They are just part of life. All of us get sick and old (unless we die first).

Under these criteria, I think, without having detailed knowledge of the case, that Ryan has an uphill battle. If, as one of our commenters here (federalist) has said, Ryan's dishonesty and bribe-taking resulted in fatal automobile wrecks, then his offense has ramifications well beyond the "normal" white collar, money-under-the-table sort of crime. For related reasons, his public service, though extensive, is now called into question. If he was taking bribes in one of his public offices, what was he doing in the others?

As I say, I don't know the specifics of the case well enough to reach a conclusion. I know more, slightly, about the process I think would be healthy. That process would take account of neither Ryan's politics nor his ideology, and would give respectful, but not necessarily conclusive, weight to the judgment and reasoning of the sentencing court.

Posted by: Bill Otis | May 29, 2008 8:19:59 AM


I don't have a strong feeling about the "age and illness" thing, because, frankly, it just perplexes me ... makes me glad that I don't have to make these decisions.

In the Annual Reports of the Attorney General up to 1932, you see plenty of situations where sentences were commuted because prisoners were on their death beds. Sometimes an added justification was that they had served some significant portion of their sentence, maybe even had only a month or two left - so the factors can interact.

I assume doctors "certified" the illness and all of that. So, I wonder (because I don't know), can the government save any significant amount of money or time and trouble by sending someone home to die?

Having said all of that, there is the infamous Wall Street crook Charles Morse, who was said to be dying and went on to out-live the president who pardoned him. I think the Justice Department developed evidence later that he had consumed some mixture of this and that to simulate a fatal condition and throw off the doctors.

Second, I am familiar with the routine where an older person is about to be sentenced to say 4 or 5 years in prison and their lawyerd argue that "in effect" such a sentence would be a death sentence - because of poor health. I don't know if that argument typically flies (or has ever flown) but, as a layperson, it does hypnotize me a bit.

Finally, I wonder if Prof. Berman thinks age or illness should ever be considered in a sentencing decision? Not formal, official, public considerations, of course, but considerations in the deep, dark recesses of the judicial mind at play in an area of discretion.

Posted by: P.S. Ruckman, Jr. | May 29, 2008 10:20:58 AM

PS. When is Prof. Berman going to incorporate spell check on this baby? It's killing me!

Posted by: P.S. Ruckman, Jr. | May 29, 2008 10:23:56 AM

I second the motion. Or should it be that I seccond the motion.

Posted by: Bill Otis | May 29, 2008 10:56:08 AM

Professor Ruckman:

Sickness is one thing, and routine. Deathbed is something else.

Of course, if a prisoner is really on his deathbed, I assume there is some way the prison authorities can let him go home without his being pardoned.

Posted by: Bill Otis | May 29, 2008 11:01:02 AM

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