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December 4, 2011

"Presidential Pardons Heavily Favor Whites"

The title of this post is the headline of this main article in a new investigative report from Pro Publica.  The piece is the lead story in this series of important new articles under the banner "Presidential Pardons: Shades of Mercy."  Here is the start of the lead piece:

White criminals seeking presidential pardons over the past decade have been nearly four times as likely to succeed as minorities, a ProPublica examination has found.

Blacks have had the poorest chance of receiving the president's ultimate act of mercy, according to an analysis of previously unreleased records and related data.

Current and former officials at the White House and Justice Department said they were surprised and dismayed by the racial disparities, which persist even when factors such as the type of crime and sentence are considered.

"I'm just astounded by those numbers," said Roger Adams, who served as head of the Justice Department's pardons office from 1998 to 2008. He said he could think of nothing in the office's practices that would have skewed the recommendations. "I can recall several African Americans getting pardons."

The review of applications for pardons is conducted almost entirely in secret, with the government releasing scant information about those it rejects.

ProPublica's review examined what happened after President George W. Bush decided at the beginning of his first term to rely almost entirely on the recommendations made by career lawyers in the Office of the Pardon Attorney.

The office was given wide latitude to apply subjective standards, including judgments about the "attitude" and the marital and financial stability of applicants. No two pardon cases match up perfectly, but records reveal repeated instances in which white applicants won pardons with transgressions on their records similar to those of blacks and other minorities who were denied.

Senior aides in the Bush White House say the president had hoped to take politics out of the process and avoid a repetition of the Marc Rich scandal, in which the fugitive financier won an eleventh-hour pardon tainted by his ex-wife's donations to Democratic causes and the Clinton Presidential Library.

Justice Department officials said in a statement Friday that the pardon process takes into account many factors that cannot be statistically measured, such as an applicant's candor and level of remorse.

"Nonetheless, we take the concerns seriously," the statement said. "We will continue to evaluate the statistical analysis and, of course, are always working to improve the clemency process and ensure that every applicant gets a fair, merit-based evaluation."

Bush followed the recommendations of the pardons office in nearly every case, the aides said. The results, spread among hundreds of cases over eight years, heavily favored whites. President Obama -- who has pardoned 22 people, two of them minorities -- has continued the practice of relying on the pardons office.

"President Obama takes his constitutional power to grant clemency very seriously," said Matt Lehrich, a White House spokesman. "Race has no place in the evaluation of clemency evaluations, and the White House does not consider or even receive information on the race of applicants."

I will have a lot of opinion about this important series of pieces in some later posts after I get a chance to consume of the information that is hear.  I will begin (for the benefit of commentor Paul and others) by suggesting that this report should prompt the Justice Department to commit itself to understanding the troublesome disparities evident in the exercise of executive sentencing discretion before it spends any more time complaining about the post-Booker exercise of judicial sentencing discretion.

December 4, 2011 at 09:11 AM | Permalink


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I will get the party started with this observation. The Justice Department's "response" to the piece is, to put it gently, pathetic. The Department does not contest the validity of ProPublica's statistical data, which shows that even after controlling for a series of relevant factors -- such as age, gender, past criminal record, offense, sentence, etc. -- race is still the decisive factor in determining who is likely to get a pardon.

In response, the best the Department can do is say that these "objective" factors don't capture the "subjective" element in the evaluation of a pardon applicant, "such as an applicant’s candor and level of remorse" or their perceived "attitude." Setting aside how one reliably determines a person's "attitude" from a paper application form, the Department’s response thus CONCEDES that the "subjective" evaluation of pardon applications accounts for the dramatic racial disparity seen in the numbers, which, of course, is PRECISELY the point of the analysis.

The response of the White House is also problematic, albeit for a different reason. Their reading of the Department’s recommendations, they say, “does not consider . . . the race of applicants.” Indeed, the White House says that they don’t “even receive information on the race of applicants.” I have no doubt that, generally speaking, this is true. The problem is that it COMPLETELY begs the question. The point is that the recommendations they have been receiving from the Department are implicitly infected with racial bias. The fact that this isn’t apparent from the face of the recommendations they receive makes this worse, not better.

Posted by: Sam Morison | Dec 4, 2011 10:43:16 AM

Mr. Morison --

To your knowlege, based on your considerable experience, did any of your colleagues at the Department allow their recommendations to be influenced by antagonism toward blacks or other racial minorities?

Posted by: Bill Otis | Dec 4, 2011 2:17:30 PM


Posted by: Sam Morison | Dec 4, 2011 3:19:09 PM

I think what's really going on here is that pardons are overwhelmingly doled out to the politically connected. That may sound surprising because after the Mark Rich thing, DOJ and the President vowed to take politics out of the process. But really, all they did was take the most obvious, ham-handed version of politics out of the process. Even today, amidst a sea of pardon requests, the only reason that some get noticed is that senators, congressmen, connected private DC attorneys and other similar beltway types signal to the DOJ which requests should be looked at most carefully. Shit, that's how everything works in DC these days, and that's one of the many reasons DC is such a pit of dysfunction. On rare occasions some connected DC people will take on the pardon case of a black person – usually as some sort of pro bono matter – but if it weren't for those cases the recipients would be entirely connected white people.

Posted by: dm | Dec 4, 2011 4:34:29 PM

Mr. Morison --

Wow. Did you report them to the Inspector General, OPR, or their superiors? To say that basing one's official actions on racial animus is unethical is a vast understatement. I don't think it would be any more proper for a DOJ employee to remain silent while such a thing was going on than it was for Penn State people to remain silent while an assistant coach was raping ten year-olds in the shower. Both situations are intolerable.

Posted by: Bill Otis | Dec 4, 2011 9:22:56 PM


For your consideration: http://www.pardonpower.com/2010/04/obama-team-everything-normal-were-all.html


Posted by: P.S. Ruckman, Jr. | Dec 5, 2011 12:35:41 AM


I did indeed report it to the OIG, and the person involved –- who was my direct supervisor -- was eventually removed from his position. See, e.g., Alison Gendar, Furor Over Bush Lawyer’s Racism in Deportation Case of Nigerian Minister, New York Daily News, July 14, 2008; Lara Lakes Jordan, Pardon Attorney Moved After Racism Claim, Associated Press, Feb. 5, 2008. I can also say that while the publicly released version of the OIG Report dealt only with one such incident, the complaint contained a number of other allegations along the same lines. Moreover, the complaint was also endorsed by a professional colleague, so I was not alone in making these claims.

This is certainly evidence of racism in the pardon process, which would not have seen the light of day but for the indepedence of the OIG. Even so, my personal knowledge, however compelling, is necessarily anecdotal. By itself, DOJ would dismiss it as an “isolated” incident. The value of ProPublica’s research is that it provides us with objective, statistically valid evidence, which is entirely consistent with my own personal knowledge.


Posted by: Sam Morison | Dec 5, 2011 8:23:09 AM

Mr. Morison --

"I did indeed report it to the OIG..."

Hats off to you for doing the honorable and courageous thing.

Posted by: Bill Otis | Dec 5, 2011 1:08:17 PM

Just listened to a discussion on NPR with Margaret Love, Dafna Linzar - ProPublica reporter - Chris Barlolomucci - White house Councel, and Governor Robert Rhrlich. It was quite good in explaining the process and Dafna Linzar shed some light on the ProPublica study methods.

Posted by: beth | Dec 5, 2011 1:34:36 PM

After having read the original story, numerous related news items and after having spoken with two of its authors, I have concluded that the statistical results of this study are questionable at best. Much of that impression depends, admittedly, on basic information which ProPublica is not willing to share (descriptive statistics, classification tables, correlation matrixes,etc.) The cynic might dwell on the possible explanations for that lack of transparency, but I have additional concerns that some of the variables are poorly conceived / operationalized and that the model is not specified well. One thing is for certain, its claim to be the "first systematic analysis" of pardons is pure BS. I don't know much about ProPublica. But, right now, to me, its standards for journalism are not looking too impressive.

Posted by: P. S. Ruckman, Jr. | Dec 11, 2011 2:14:59 PM

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