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January 1, 2009

What might 2009 have in store for . . . executive clemency?

I will commemorate the new year with a long series of topic-specific posts asking "What might 2009 have in store for . . . ."  And, inspired by this new New York Times article, headlined "On Fast Track for Clemency, via Oval Office, I will start the series with a focus on executive clemency.  Here are excerpts from the Times article:

People with the wherewithal to do so have always tried to use special access to power to win clemency. And none of Mr. Bush’s decisions have been as controversial as President Bill Clinton’s last-minute pardon of the fugitive-financier Marc Rich.

But over the last few presidencies, the incentive to try to go around the normal process has increased, said P. S. Ruckman Jr., a political scientist who specializes in clemency. A huge backlog at the Justice Department’s pardon review office combined with the relatively small number of clemency grants by recent presidents, Professor Ruckman said, “encourages people to try to end-run the process — to try to cheat, for lack of a better word, to gain access to the White House directly.”

Although the Bush administration has repeatedly said clemency-seekers should go through the Justice Department review, a White House spokesman, Tony Fratto, said anyone was free to send a petition directly to the White House, which “at a minimum requires the cost of a stamp.” Mr. Fratto added that “it is immaterial to us who delivers a petition for a pardon” because the president makes such decisions “on the merits.”

But Professor Ruckman said that people without connections could not walk into the White House, and that under ordinary circumstances, any letter would be forwarded to the Justice Department, where about half a dozen lawyers had 2,172 pending cases as of Dec. 4....

Justice Department officials say clemency should be rare. They say the review process is fair, but Karen Orehowsky, a volunteer clemency consultant who advised Mr. Prior’s commutation team, said that ordinary people going through the department process have virtually no chance. “It takes a ‘Hail Mary’ from people who have a lot of connections and who are willing to put their neck out for people they care about, and it’s unfair to people who don’t have those connections,” Ms. Orehowsky said.

I vehemently dispute the suggestion that it is "cheating" to seeking an "end-run" around the Justice Department's dysfunctional (and constitutionally suspect) process in order to try to get the President's clemency attention.  Even were the DOJ process running well, putting prosecutors in charge of screening clemency applications seems contrary to both the theory and structure of the clemency process that the Framers put in US Constitution.  The Framers wanted the President to be "the decider" in this setting, and so the real "cheat" in my view is DOJ's creation of burdensome (and anti-clemency) screening process for requests.

Moreover, as this recent ABC News article effectively highlights, there is little reason to think the DOJ process is running well.  The article is headlined, "Is Pardon Reversal a Sign of a Broken System?: Critics Say Pardon System Needs 'Radical' Change After Reversal of the Isaac Toussie Pardon," and here is how it starts: 

Since President Bush granted and then unexpectedly revoked a controversial pardon last week, legal experts are furiously debating whether the process surrounding the president's constitutional power to pardon is broken, biased or both.... "There needs to be a radical restructuring and restaffing of the pardon process," said Margaret Love, who led the Office of the Pardon Attorney at the Justice Department from 1990 to 1997.

I hope 2009 might bring such a radical restructuring of the pardon process, but I am not holding my breath even in this season of change.  That said, the confirmation hearings for AG-nominee Eric Holder will keep these issues in the public and political dialogue through January.  And, if past is prologue, President Bush can be expected to add another layer to this story before he leaves the Oval Office.

Some recent (and not-so-recent) related posts:

January 1, 2009 at 09:39 AM | Permalink


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Prof. Berman,

I can hear myself talking to the Times right now ... "well, let's just say for now, cheating, for lack of a better word ..." I guess I never came up with a better word! Hopefully, you gathered from the other passages that I am in complete agreement that the program needs repair and that applicants deserve better.


Posted by: P.S. Ruckman, Jr. | Jan 1, 2009 10:03:50 AM

I did sense, PS, that you were looking for a better word. How about "finesse" or even "find a better path"?

Here's hoping you get called to testify at Holder's hearings!

Posted by: Douglas A. Berman | Jan 1, 2009 12:13:59 PM

Prof. Berman,

The article high lights the problem of getting a Presidential pardon by the ordinary citizen but there also is a huge problem at the state level. For instance look at a state like North Carolina who has a Governor (Easley)who has never given a pardon in eight years to someone other than five people who were cleared by dna. Also in North Carolina if you are turned down for a pardon you must wait three years before you can re-apply. I wonder if it might be better to take the pardon power away from Governors and the president and put in the hands of an elected commission or panel? This way grants or denials of pardons would at least seem less politically motivated.

Posted by: Anon | Jan 1, 2009 12:17:30 PM

Prof. Berman,

I couldn't agree more with your assessment of the Pardon Attorney's office. The process is completely broken down. When hardened career prosecutors -- who are philosophically opposed to clemency -- are making the recommendations we will never have a fair process. I believe strongly that the Pardon Attorneys office should be moved out of the DOJ and into the White House. It should be staffed with not only former prosecutors but also with former federal criminal defenders. We cannot have mandatory sentencing without a clear, fair and transparent process for relief.

I was fortunate enough to work on two successful petitions for clemency in the past six years. In both cases the "Hail Mary" into the WH was the only way to offer these meritorious cases the relief they deserved. It is not cheating to inform the President of deserving cases when the OPA refuses to do so.


Posted by: Karen Orehowsky | Jan 1, 2009 4:24:13 PM

Dear Professors,

What is your best estimation for a young man in college caught with child porn on his college computer have a clemency and absolvement after 5 years of probation? His girlfriend broke into his password protected computer and told the police. The police told him it would be better for him to tell the truth and write a statement. He had no lawyer. The DA wanted 10 years, the judge gave him a split 5 year sentence. He has 2 more years of probation.He has to register as a sex offender for 25 years. It is all very sad.

What do you think is the best protocol to seek a pardon or clemency in this particular case?What kind of lawyer should one seek. Thank uou and I am grateful for your help.


Posted by: DK | Jan 13, 2009 12:35:47 AM

Its really interesting, but you dont represent it well at all, man.

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