« "Pro-Prosecution Judges: 'Tough on Crime', Soft on Strategy, Ripe for Disqualification" | Main | Student note about retroactive application of 2007 guideline crack amendments »

November 24, 2010

NYTimes op-ed assailing Obama's pathetic pardon practices

George Lardner has this effective op-ed in today's New York Times, which is headlined "No Country for Second Chances."  Here are excerpts:

If by tomorrow he pardons no one but turkeys, President Obama will have the most sluggish record in this area of any American president except George W. Bush.  He’ll have outdone George Washington, who granted a pardon after 669 days.  And he will also have outlasted Bill Clinton, who took three days longer than Washington to grant his first pardons.  If Mr. Obama waits until Christmas Eve, he will make even his immediate predecessor, who waited until Dec. 23, 2002, seem more generous.

Last month, President Obama turned down 605 requests for commutations — from prisoners who wanted their sentences shortened — and 71 for pardons.

It’s difficult to understand why the president has been so unwilling to grant any clemency. As someone who has taught constitutional law, he knows that the founders gave him, and him alone, the power “to grant reprieves and pardons for offenses against the United States except in cases of impeachment.”  It is likely that he also knows that a disproportionate number of federal prisoners are black, that mandatory sentencing guidelines have left many of them with excessive sentences and that at least a few of them deserve clemency, whether they’ve asked for it or not.

The president has not only the power but also the responsibility to grant clemency when it is warranted.  A pardon can help a worthy former prisoner qualify for a job or a license. But mainly it restores the person’s civil rights, including the right to vote.

What could be holding up Mr. Obama?  There is no question that the federal pardon process is flawed.  It has been handled by a tiny staff in the Justice Department’s office of the pardon attorney, which has worked for years in a climate of official hostility to any grants of clemency.  (As Samuel Morison, a lawyer who worked in the pardon attorney’s office, recently wrote, the view inside the Justice Department is that the pardon attorney should mainly “defend the department’s prosecutorial prerogatives.”)  Recommendations for a pardon or a commutation require a great deal of investigation; in most cases, the pardon attorney’s easiest course is to advise that the president say no.

Under Bill Clinton and George W. Bush together, the Justice Department received more than 14,000 petitions for commutations, but recommended only 13 to the White House. The current backlog of petitions for both commutations and pardons is tremendous, close to 4,000.

During President Obama’s first year in office, Gregory Craig, who was then White House counsel, recognized that the system wasn’t working.  He talked with Justice Department officials about establishing a bipartisan commission or some quasi-independent office that would take over the pardon recommendations from the Justice Department.  Mr. Craig’s ideas met with little enthusiasm.

The White House has tried to explain the current foot-dragging by saying that the president has asked for an updated set of standards for granting clemency.  While improvements could be made, the truth is that the standards are time-tested — and fine, at least, for handling most petitions.  President Obama needs only to do his job.

Some older and newer related posts:

November 24, 2010 at 10:45 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference NYTimes op-ed assailing Obama's pathetic pardon practices:


Headline No. 1: "NYT Wants More Criminals Released."

Headline No. 2: "Dog Bites Man."

Posted by: Bill Otis | Nov 24, 2010 11:32:39 AM

I continue to believe that Obama is doing the right thing, both politically and morally.

Politically, every pardon he grants is a losing proposition. Morally, the system is so badly broken that any pardons given are practically random events—the equivalent of finding one of Willy Wonka’s golden tickets.

It’s worth noting that George W. Bush’s pardons were mostly for people convicted many years earlier, who had committed relatively minor crimes, and who had long since completed their sentences. I don’t think anyone else got the kind of deal Scooter Libby got (a commutation that actually erased a prison sentence).

I would add that unless the president dispenses pardons by the bushel, he will be making only an imperceptible dent in the overwhelmingly harsh criminal justice system that the Times complains about. Congress is in a far better position to rectify the situation, barring a pardoning binge so intense that it would all but assure Obama of losing in 2012.

Posted by: Marc Shepherd | Nov 24, 2010 1:21:58 PM


I couldn’t disagree with you more. As has been remarked here by others, the vast majority of pardons simply are not politically contentious, as you (inconsistently) acknowledge about Bush’s pardon record. I can assure you that Bush could have doubled or tripled his number of pardons of a similar character without incurring any additional political risk, although he would have done a great deal of good for those individuals. If the advisory process is conducted in a responsible way, there is no reason that pardoning or commuting garden-variety cases should be contentious, which has been true for most of this country’s history. The only reason it seems risky is that DOJ has virtually shut the process down by giving the president a steady diet of negative recommendations, thereby inflating the risk in the event the president does want to act.

Moreover, it is not true that Obama would have to make a significant dent in the overall prison population to make a difference. For example, when President Kennedy took office in 1961, there were hundreds of prisoners serving harsh mandatory minimum sentences under the Narcotic Control Act of 1956, 70 Stat. 567 (codified as amended in scattered titles and sections of U.S.C.). In 1962, the Attorney General ordered the Director of the Bureau of Prisons to identify deserving inmates serving mandatory sentences under the Act and encourage them to file commutation petitions. As a result, “there [was] a policy of attempting to systematically review cases which may be deserving of commutation,” including “long-term narcotics offenders who, by statute, were not eligible for parole but whose sentences were considerably longer than the average.” 1964 ATT’Y GEN. ANN. REP. at 64. Pursuant to this policy initiative, Presidents Kennedy and Johnson commuted the sentences of some 200 drug offenders serving mandatory minimum drug sentences. See 1963-64 ATT’Y GEN. ANN. REPS.; see also Margaret Colgate Love, Reinventing the President’s Pardon Power, 20 FED. SENT. REP. 5, 6 (2007). While that’s a relatively large number of commutations, to be sure, it was not even at the time a major percentage of the federal prison population. Yet, this clemency program laid the political groundwork for the eventual repeal of virtually all mandatory minimums in 1970. See FAMILIES AGAINST MANDATORY MINIMUMS, CORRECTING COURSE: LESSONS FROM THE 1970 REPEAL OF MANDATORY MINIMUMS (2008).


Posted by: Sam Morison | Nov 24, 2010 2:56:17 PM


I am mystified by how far off the mark you seem to be. Can you name 5 people pardoned by the wildly unpopular George W. Bush? How about 5 people pardoned by Reagan, or Carter?

For a century, the typical (as in well over 90 percent) pardon has not sprung anyone from prison, thrown any criminal into the streets and has not overturned the judgement of a judge or a jury. The typical pardon has been given to you and I have never heard of and never will hear of. They have served their time, taken care of associated fines and penalties and have integrated themselves back into society as law abiding, productive members. They have also waited a period of time prescribed by law and have been background checked by the FBI. The pardon simply restores their civil rights.

What political capital has been spent on these thousands of pardons? ZIP - NOTTA. The political capital concern is based on 1) the fear of media reaction to freakishly "controversial" acts of clemency and 2) the rationalization of politicians who would rather not lead when there is no adoring crowd to prop up their ego. It has no relationship whatsoever to the typical pardon.

Posted by: P.S. Ruckman, Jr. | Nov 24, 2010 5:39:13 PM

My comment was a reaction to this statement in the op-ed: “It is likely that [Obama] also knows that a disproportionate number of federal prisoners are black, that mandatory sentencing guidelines have left many of them with excessive sentences and that at least a few of them deserve clemency, whether they’ve asked for it or not.”

The Federal pardon regime, as it has evolved, does nothing to help these people, as no president in modern times has pardoned people in significant numbers who were still in prison. (That is, unless you consider what Kennedy did fifty years ago to be modern.) The current system only helps people who completed their sentences long ago, and it doesn’t even help very many of THEM.

Posted by: Marc Shepherd | Nov 24, 2010 6:50:39 PM


Actually you said more than merely commenting on the historical evolution of the pardon process. You made a normative judgment, namely that Obama "is doing the right thing, both politically and morally." But this assertion completely begs the question. The fact that the pardon process "as it has evolved" in the last 25 years or so only helps a relatively few people "who completed their sentences long ago" is precisely what is at issue. Put another way, if the clemency advisory process is so badly broken that commutation grants have become random, as you correctly suggest, then isn't the morally correct response to make such decisions in a more considered fashion? And, yes, the fact that Kennedy and Johnson did so in the recent past, in historical terms, means that it can be done. Your skepticism is therefore entirely misplaced.

Posted by: Sam Morison | Nov 24, 2010 9:46:13 PM

Bill, you openly supported Bush commuting Scooter Libbey's sentence. You wrote an op-ed article in the Washington Post. This is simply naked hypocrisy on your part.

Posted by: jsmith | Nov 24, 2010 11:05:26 PM

jsmith --

Nonsense. It would be hypocrisy only if I said no one should be granted clemency. I have said no such thing and in fact have said the opposite. I have also taken direct and successful action to achieve clemency, and not just for Libby. Have you?

Posted by: Bill Otis | Nov 25, 2010 1:23:34 PM


Yes I have helped to try and get clemency. I don't actually see what on earth that has to do with this though.

You consistently support harsher sentences and no clemency in the vast majority of cases. Your comment in this case referred to 'criminals', while factually correct, you used it in a way that commented on the NYT's perceived liberal bias. Given your continued condemnation of anyone whose views even approach left of centre, I can't help but view your comment as a pejorative comment on the attitude of the newspaper rather than a neutral statement. But I could simply be mistaken - what are your views on President Obama pardoning non-violent criminals who have clearly demonstrated they have been rehabilitated?

Posted by: jsmith | Nov 26, 2010 5:07:50 PM

jsmith --

Sure, if you "interpret" my words rather than allowing them to speak for themselves, you can manufacture for me any position you want. But it will be your product, not mine.

My position on pardons, from Obama or any other president, is that each case should be examined one at a time on its own merits. The factors you mention would favor clemency, but are not in my judgment conclusive. You have to look at the whole case.

You say that I support "no clemency in the vast majority of cases." This puts me in the camp with every president from Washington on, all of whom refused clemency in the huge majority of cases.

You are quite correct that I am not neutral about the liberal bias of the NYT. If it were confined to the editorial pages it would still be way to the left. But it suffuses its "news" coverage, which makes it even worse.

Of course your side has never said a pejorative word about Fox News, right?

Posted by: Bill Otis | Nov 27, 2010 5:22:38 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB