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April 21, 2010

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Some critics say the current system is obsolete because it provides the president with no assurances that his grants will be free of political consequences.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:

April 21, 2010 at 09:14 AM | Permalink


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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.

I feel just as strongly that he shouldn’t. It is too much of a waste of scarce presidential capital. There is no chance of pardons being issued in any where near a quantity commensurate with the number that are warranted. If he is going to expend capital on that issue, he should expend it on structural change, rather than on issuing the token (and virtually random) pardon here and there.

Posted by: Marc Shepherd | Apr 21, 2010 11:56:21 AM


With respect, I couldn't disagree more. The pardon power is not an all or nothing proposition, as your comment seems to assume. The mere fact that this or any other president is unlikely to grant commutation to each deserving offender is not a good reason to refrain from exercising the power altogether. Doing some good is plainly better than doing nothing at all. And if clemency is a matter of grace, rather than an entitlement, then those who don't get clemency have nothing to complain about. Second, if you are assuming that a "token" grant can't have a systematic effect, then I think you are mistaken. I won't rehearse the evidence in this post, but symbolic grants, if done with some thought, can spur the very legislative reform that is necessary (and I agree completely that this is the ultimate goal). Moreover, this would remove the objection that the grants in question are "virtually random" since I'm assuming they'd be done with some purpose. Third, if the advisory system functioned properly, the expenditure of political capital would be minimized, though perhaps not eliminated. Finally, I think we have been talking about commutations. Let's not forget that thousands of ex-offenders are released from prison each year, only to be confronted with crippling collateral disabilities. Historically, DOJ recommended favorably in a healthy number of these cases too.

Posted by: Sam | Apr 21, 2010 12:38:51 PM

I agree with you both. In theory Sam is correct. In practice Marc is correct. The decision to not do pardons is based on a political calculus, not a justice one. From a justice standpoint Kennedy is correct; the system is broken. But that's because the political system is broken.

Anything can and will be used against you. If you are president your choices are either to wait until that is no longer possible (at the end of a term in office) or take the risk of a Willie Horton. Well, the risk not just not worth the reward. Marc is correct, in the grand scheme of life other things are more important. Is that regrettable? Yes, life is full of regrettable things. But I think it is terribly naive to think that anything is going to change anytime in the near future (20 years). It requires a change in culture rather than a change in party.

Posted by: Daniel | Apr 21, 2010 1:24:51 PM

Well, I'm glad that I'm correct in theory. I certainly don't expect that Obama is going to deliver a general jail break, nor do I think that would be a good idea. On the other hand, it wasn't so very long ago that the received wisdom in these matters was much more balanced and humane than it has been in the last few decades. If the political culture can sharply swerve in a punitive direction, then there's no principled reason to think the pendulum can't swing back in the other direction, especially if that's the correct normative position. That's only naive if you think it will happen without a struggle, which I've never thought. Indeed, in the near term, I suspect that the smart money is, unfortunately, with Marc. That said, I refuse to believe that cultural attitudes are impervious to moral argument.

Posted by: Sam | Apr 21, 2010 2:05:02 PM

One opportune time for Obama to jump on the clemency bandwagon would be following Congressional action and sentencing commission action to reduce long guideline and mandatory minimum sentences, particularly for drug offenders.

The political cost of a significant number of people serving sentences much longer than those they could have received under current law would probably be pretty modest.

Another approach which would be more narrow, but potentially even less politically costly would be to have the pardon attorney focus on cases where the sentencing judge personally called the sentence imposed unreasonably long and did so only because mandatory minimums or sentencing guidelines required this kind of sentence.

One way to see the general decline in clemency is as an increased vote of confidence in the relative sentencing expertise of the judiciary. A clemency campaign that emphasizes judicial dissatisfaction could harness that sense.

Posted by: ohwilleke | Apr 21, 2010 6:06:29 PM

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