Fascinating report on backstory behind presidential pardon problems

This new post at Main Justice, which is headlined "Despite Efforts, Pardon System Still Unchanged," provides some new and notable details about discussion and debate over pardon policy inside the Obama Administration.  Here are excerpts:

Behind closed doors Justice Department and White House officials have been considering changes to the system since the start of the Obama administration, though the White House appears to have scaled back its ambitions after key personnel changes.

Former White House Counsel Greg Craig, now a partner at Skadden, Arps, Slate, Meagher & Flom, led a push for major reforms before stepping down last November, according to two people with knowledge of the discussions.  He received support from then-Deputy Attorney General David Ogden, who recently returned to his practice at Wilmer Cutler Pickering Hale and Dorr LLP, the individuals said.

Attorney General Eric Holder — whose involvement in the controversial pardon of fugitive financier Marc Rich at the end of the Clinton administration threatened his career — also expressed interest in making the clemency program “more systematic,” said one of the individuals.

The Justice Department’s Office of the Pardon Attorney receives clemency applications and makes recommendations to the White House via the Office of the Deputy Attorney General.  A steep backlog in the pardon office coupled with fewer clemency grants in recent years has driven applicants to reach out to the White House directly.

Some critics say the current system is obsolete because it provides the president with no assurances that his grants will be free of political consequences. Meanwhile, they say, the tool used in the past to “correct injustices that the ordinary criminal process seems unable or unwilling to consider,” as Justice Anthony Kennedy once wrote, has fallen into disuse.

An idea favored by Craig was the creation of a blue-ribbon commission or an advisory process inside the Justice Department but apart from the pardon attorney, the people said.  After he stepped down in November, however, discussions turned to developing criteria under which clemency petitions should be granted in the existing program.

“Like every administration, we are updating the policy guidance for DOJ on requests for executive clemency,” a White House official said.  Craig and Ogden declined to comment.  A Justice Department spokeswoman declined to comment while the policy was under review.

The clemency issue gained attention after the Supreme Court heard arguments last month in Dillon v. U.S., a case brought by a federal prisoner who was sentenced in 1993 to 27 years behind bars for trafficking in crack cocaine.

Percy Dillon, described as a model prisoner, asked the court to decide whether the U.S. Sentencing Commission erred in limiting federal judges’ discretion in new sentencing hearings under Congress’ 2007 reduction in the crack guidelines.  A federal judge had called his original sentence “unfair” and “entirely too high.”

At one point, Justice Kennedy asked the government’s lawyer whether the Justice Department ever recommends clemency for prisoners like Dillon.  He also questioned whether the lack of commutations last year and the five the year before signaled that “something is not working in the system.”

It is quite sad (and perhaps quite telling) that the two official inside the Obama Administration who were most forcefully pushing for clemency reforms are now out of the Administration.  And, of course, it is even sadder and even more telling that we are now deep into the Obama era and have yet to see any tangible evidence of significant hope and change in this setting or in many other federal criminal justice contexts.

As regular readers know, I have been urging President Obama to exercise his clemency power with vigor since literally his very first day in the Oval Office:

• Is it too early to start demanding President Obama use his clemency power?
• Historical evidence that it is NOT too early to start demanding clemencies from President Obama
• When will President Obama start acting like President Lincoln when it comes to the clemency power?
• Commentary on how celebrity status effects clemency commitments
• Inaugural rhetoric about freedom and liberty in prison nation
• "Grandmother Will Mark President's Day By Petitioning Obama To Commute Her 27-Year Prison Sentence For Non-Violent Crime"
• Obama as Scrooge: no Christmas clemency grants
• Fitting complaints about an ugly clemency scoreboard: "Turkeys 2, humans 0"
• The true sentencing turkeys on this Thanksgiving eve
• Justified complaints that Obama's first pardon will be of a turkey
• "President Barack Obama proving stingy with his pardon power"
• Notable press stories noting Obama's lack of clemency action
• A simple plea for Prez Obama: grant at least a single clemency in your first 100 days
• "Obama should exercise the pardon power"