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February 19, 2009

Another public and potent call to reinvigorate the pardon power

Just appearing at The National Law Journal is former US pardon attorney Margaret Colgate Love's latest call to get the presidential pardon power working properly again.  This latest piece, which is co-authored with another former pardon attorney, John Stanish, is titled simply "Reinvigorate the Power."  Here are excerpts:

Pardons are granted only at the end of a president's term, so goes the conventional wisdom. In reality, most presidents have hit the ground running where pardoning is concerned.  The best of them have made strategic use of this most personal power from the very beginning to advance their policy goals.

For example, in his first year in office, Abraham Lincoln issued 80 grants of pardon to ordinary citizens, in addition to his more famous grants to soldiers. By his second term he had pardoned 365 civilians. Lincoln encouraged a high degree of public participation in his clemency decision-making process, even disclosing the reasons for each grant.  A pardon scholar notes that Lincoln "thrived on the hope that each request he granted further educated a portion of the public to the necessity of a clemency power in the justice system."

Other exemplary occupants of the Oval Office were similarly forgiving early on. In their first year, Theodore Roosevelt issued 128 grants, Franklin Roosevelt 167 and Truman 107....

The disappointing trickle of grants at the end of Bush's term, like the torrent of irregular grants at the end of Clinton's, was the product of a chronically dysfunctional pardon advisory system in the Justice Department, a system now dominated by prosecutors that produces few favorable recommendations.... [N]either president was well-served by a Justice Department whose pardon office has become a place where petitions for presidential mercy go to die....

It is unfortunate that the pardon power has become essentially unusable, for it has never been more critical to the fair and efficient operation of the criminal justice system.  Harsh no-parole sentences mean that many people remain in prison long after any just purpose is served by their continued incarceration, and all leave prison permanently burdened with disabling collateral consequences that almost guarantee their return to crime.  Pardon, once the justice system's fail-safe, has not served that function for many years....

During the campaign, Obama expressed concern about the number of African-American men in prison, and declared his intention to eliminate the disparity in sentences for crack and powder cocaine.  This policy goal, recommended for many years by the U.S. Sentencing Commission but stubbornly resisted by Congress, could be advanced by a few judicious grants of clemency to crack defendants who have served many years in prison and have been recommended for release by the prosecutor or the sentencing judge....

In a perfectly just system of laws there is no need for pardon. Ours falls far short of that.  Justice Anthony M. Kennedy has observed that "a people confident in its laws and institutions should not be ashamed of mercy."  We hope that Obama is of like mind, and that he will take steps to reinvigorate the pardon power by shoring up the system for administering it.

Regular readers know that I have been beating the drum for President Obama to start making use of his pardon power within hours of his taking the oath.  As the second month of the Obama presidency begins, we have already seen no shortage of bold action by the new President to address perceived injustices (closing GTMO) and to help those in need due to imperfect decisions (various bailouts).  I sincerely hope that just a little dusting of hope and change will come to the federal criminal justice system sooner rather than later.  As Love and Stanish suggest, just a few strategic clemencies could go a very long way in this regard.

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February 19, 2009 at 06:02 PM | Permalink


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Doug, you know, you could try to lead an effort to get attorneys nationwide to do pardon applications pro bono.

Posted by: federalist | Feb 19, 2009 8:17:41 PM

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