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December 12, 2011

"Saving Grace: Salvaging the Pardon Advisory System"

The title of this post is the title of this notable new guest post at the ACS Blog by Samuel Morison, a former staff attorney at the Office of the Pardon Attorney. Here is how it starts and ends:

For most of this country’s history, the practice of executive clemency has quietly functioned as an ancillary feature of the criminal justice system, without attracting much attention.  The purpose of the pardon power, as the Founders envisioned it, was to fill the inevitable gaps in the just and humane infliction of punishment. In addition to being a failsafe to correct injustices that escaped judicial scrutiny, executive clemency was conceived as an equitable vehicle for bestowing legal “forgiveness” in appropriate cases....

Beginning in the 1970’s, however, under the influence of the “new retributivism,” the prevailing rehabilitative paradigm began to collapse, along with the traditional practices of discretionary sentencing and parole....  As many commentators have noticed, the prevalence of determinate sentencing has not eliminated the exercise of discretion, but merely shifted the balance of power from judges and juries to prosecutors.  Not surprisingly, the Justice Department also sought to control the pardon power, the last remaining bastion of unfettered discretion in the criminal justice system.

This was possible because the hornbook account of the pardon power as a nearly absolute prerogative of the President is actually a bit misleading.  In fact, the President’s immediate legal staff does not have the resources to properly evaluate the hundreds of clemency cases that are filed annually.  Instead, by longstanding practice, the President has delegated this responsibility to career officials in the Justice Department’s Office of the Pardon Attorney.   Pursuant to rules promulgated by the President, clemency applicants are required to submit their petitions to the pardon office, which, in turn, exercises firm control over the flow of information to the White House.

Having served as a staff attorney in the pardon office for more than a decade, I can say with some confidence that the office does not view its role as a neutral arbiter.  Instead, it exploits the asymmetry of information to protect the Department’s institutional prerogatives, churning out a steady stream of almost uniformly negative advice, regardless of the merits of any particular case.   In effect, this amounts to little more than an effort to restrain (rather than inform) the President’s exercise of discretion.   The implicit message is clear: you will either do as we suggest, Mr. President, or you’re on your own....

[A]s revealed in last Sunday’s Washington Post, President Bush did not know that the clemency advice rendered by the pardon office was infected with an implicit racial bias. Remarkably, according to a statistically rigorous study of previously unavailable data conducted by ProPublica, black applicants are four times less likely to receive a pardon than similarly-situated white applicants, even after controlling for a variety of relevant variables, including age, gender, marital status, offense, and sentence.  This is an astonishing finding.  While the Attorney General has spoken with some eloquence about the need to revitalize the mission of the Civil Rights Division, he should perhaps begin by putting the Department’s own practices in order.

Tellingly, the Department was given advance notice of the ProPublica study, but made no effort to take issue with the validity of the analysis prior to its publication.  Instead, it merely issued a statement asserting that controlling for such “objective” factors fails to capture the “subjective” element in the evaluation of a clemency application, such as “an applicant’s candor and level of remorse,” or their perceived “attitude” or “stability.”  But this is hardly a convincing reply, because it seems to concede that the “subjective” evaluation of applications by the pardon office accounts for the dramatic racial disparity reflected in the data, which is precisely the point of the study.

The White House’s response to the story is also unpersuasive, albeit for a different reason.  The Counsel’s Office insists that the President’s evaluation of pardon cases “does not consider the race of the applicants,” and that the White House doesn’t “even receive information on the race of applicants.”  This is undoubtedly true, but is nevertheless a non-sequitur, because the authors of the advice are aware of the race of each applicant.  The fact that the President is kept in the dark makes the situation worse, not better.

The fundamental issue is this: who will exercise effective control over this broad discretionary power, the President or a small cadre of anonymous bureaucrats in the Justice Department?  Historically, the pardon advisory function has been housed in the Department entirely as a matter of administrative convenience, pursuant to the President’s authority under the Pardon Clause.  Whatever utility this arrangement once had, the structural deficiencies in the existing advisory system have rendered it dysfunctional.  Under the circumstances, I submit that the President has a constitutional obligation to remove the advisory role from the Justice Department, and reconstitute it within the Executive Office of the President, where it can operate without the burden of an entrenched conflict of interest. 

Even before the recent study revealing racial disparity in the federal pardon process, I had come to believe it was bad policy and bad practice to have the Justice Department serve as functional gate-keeper for clemency petitions.  This commentary (along with the recent evidence of racial disparity) inspires me to claim that it may also be unconstitutional.  I wonder if anyone might have the energy and inspiration to make a creative (but I think viable) constitutional argument to this effect on behalf of a uniquely deserving clemency petitioner.

Some rrelated posts:

December 12, 2011 at 02:57 PM | Permalink


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Whatever my thoughts about the policy debate regarding the pardon advising process I think the fundamental issue is a political problem. Although I don't believe that Willie Horton was the cause of the problem he remains the prime symbol of it. If the the party in opposition can exploit the President's use of the pardon power for political gain they are going to do so. Some would go so far as to say the opposition would be remiss if they did not. So long at that's the political reality and so long as America remains so narrowly divided there is a strong political bias to let only the most blatant and obvious cases through the pipeline. That's might not be just but it's accurate.

Posted by: Daniel | Dec 12, 2011 3:56:36 PM

This is an insightful, thought-provoking post. It's a subject that deserves greater attention. And the final sentence discussing a conflict of interest is a good one.

Posted by: anon | Dec 12, 2011 5:49:43 PM

Given that the president is constitutionally permitted to exercise the pardon authority in an absolutely arbitrary or discriminatory manner I see no chance that the current regime violates due process or equal protection. I would almost go so far as to say the layer of DOJ insulation is seen as a political feature rather than bug by those who occupy the White House. By allowing only a trickle of unquestionably deserving applicants through there is little chance that a grant will turn around and bite the POTUS in the ass or otherwise become a liability.

The pardon power is so thoroughly vested in the president that I see no way that the courts would get involved in any manner. To order, for instance, that there actually be a meaningful review of applicants and that neutral rules of judgement be used in making such determinations would be so contrary to the entire history of what the clemency power entails that I just don't see it happening.

Posted by: Soronel Haetir | Dec 12, 2011 10:56:27 PM

i'm with soronel on this one. the POTUS pardon power is set in the constitution...absent a constutional amendment. NO way to touch it!

Posted by: rodsmith | Dec 13, 2011 1:30:10 AM

Soronel: you don't believe the constitution could require "neutral rules of judgement be used in making such determinations"? What if the determination was based on a suspect class, such as race? Would that violate the constitution?

For example, let's say a POTUS issues an executive order that says "All pardon applications from black males will summarily be denied without review." Do you really think the constitution would permit such a thing?

Posted by: anon | Dec 13, 2011 5:47:08 PM


Yes, I believe that a president deliberately choosing to grant or deny pardons based on race or gender is entirely within the purview of the holder of that office.

As an extreme example, I believe the president could constitutionally issue a blanket pardon for all federal offenders excluding every offender who would qualify as black under the old just one drop laws of the south and that the courts would be powerless to provide any remedy (Congress could of course impeach and remove, but the pardon power itself being vested in the president that body too would be powerless to change the underlying action).

Not only do I believe such arbitrary choices are left to the president, but caprice as well, the president is just as free, constitutionally, to make pardon decisions by the flip of a loaded coin or any other unfair device of chance. There aren't many such absolute grants of unshared power in the constitution, which just makes the grants that do exist that much more striking.

Look at the impeachment and removal powers for similar absolute grants, cases where the Supreme Court has already ruled that it has absolutely no power to intervene, no matter how the Senate were to choose to conduct such proceedings (a concurrence in Nixon v. United States (506 U.S. 224 ) would have reserved the question of highly irregular proceedings but the opinion for the court disposed of even that possibility). I believe that the court would view any challenge to a president's choice of who to pardon or not under that same standard.

Posted by: Soronel Haetir | Dec 13, 2011 7:03:28 PM

Oh, I should have added:

In the example egregious pardon action the courts would be free to make the inquiry as to whether any particular offender did in fact meet the requirements of the grant. And it would not surprise me at all if some courts would be very lax in examining the record, especially if the executive were not represented at the hearing. But the courts would not have the authority to simply ignore the pardon order or to order the president to go back and issue an order without the invidious elements.

Posted by: Soronel Haetir | Dec 13, 2011 7:08:34 PM

But see Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 289 (1998)("Judicial intervention might ... be warranted in the face of a scheme whereby a state official flipped a coin to determine whether to grant clemency, or in a case where the State arbitrarily denied a prisoner any access to its clemency process."); id. at 292 (Stevens, J., dissenting) ("no one would contend that a governor could ignore the commands of the Equal Protection Clause and use race, religion, or political affiliation as a standard for granting or denying clemency.")

Posted by: anon2 | Dec 13, 2011 8:55:17 PM

I don't understand Morison's editorial to argue that the pardon power should be subject to due process and equal protection analysis per se. It seems pretty clear to me that what he is saying is that due process like concerns (racial discrimination) are, in addition to several other factors, enough to convince him that the power should now be transferred from the Justice Department to the Executive branch (where it could then take on a more independent character, and revive the traditional checks and balances notion).

Posted by: P.S. Ruckman, Jr. | Dec 13, 2011 11:48:20 PM


It is hard to square the court's admission that executive clemency is a matter of grace and yet claim that the court would ever actually step in and mandate different procedures be used. I think they are simply glad that in all such cases that have made it before them the process has in fact been more or less regular and thus they can duck the issue.

But even given that, I do think that if they were ever confronted by an actual case of the sort I outlined that they would continue to duck the issue, on political question doctrine as they did in Nixon rather than as in Ohio Adult Pardon Auth by saying that the process was good enough, notwithstanding that OAPA postdates Nixon. Courts are simply not equipped to make the sorts of judgements that clemency calls for.

The president is not actually _required_ to do anything at all with pardon applications, indeed as I understand it, the application process itself exists solely to provide some channel to the president rather than out of any mandate. The application process could be turned off and the president would still be free to act on any cases he stumbled across that he somehow felt were worthy.

My question would be, given the sort of invidious pardon I posit above, what possible relief could a court order that would have any meaning? I don't think the courts could order the president to go back and issue a different order, I don't think the courts could say that the order means something broader than what it says on its face, I don't think the courts would be in any position to nullify the order as to those who are granted clemency, and I don't think ordering the president to go back and use neutral rules and reconsider a particular applicant is actually any relief at all because the president could say "I learned from the last batch and am not granting any more pardons" and that would be a neutral rule.

The relief for such an order lies in the political not judicial sphere.

Prof. Ruckman,

I was responding more to Prof. Berman who tossed out the possibility that the current set up somehow violates the constitution that to the original editorial.

Posted by: Soronel Haetir | Dec 14, 2011 12:01:20 AM

"The president is not actually _required_ to do anything at all with pardon applications"

True, but if he does decide to do *something* with them, then it must not violate equal protection, due process, and other constitutional protections. There are a lot of things a government is not required to do. But if they do do them, its practice must not violate the constitution.

"what possible relief could a court order that would have any meaning?"

I think the question about relief may pose an interesting practical problem, but that does not absolve the constitutional violation. Ultimately, I think the remedy is to declare the President's practice unconstitutional and forbid him from using such a practice.

Soronel posits that such a remedy is not "actually any relief at all." As a legal matter, I disagree. It would forbid an unconstitutional practice. As a practical matter, it does not necessarily result in the granting of a pardon and, admittedly, the President could still deny the application (or not consider it at all) using a constitutional practice. But that does not make the judicial remedy any less important.

Posted by: DEJ | Dec 14, 2011 1:23:31 AM

There are some things that, under the Constitution, the courts simply do not get to decide no matter what. For example, suppose the Speaker of the House and the Majority Leader of the Senate said at a news conference, "Congress would declare war on Iran tomorrow, given its extreme danger to the United States and the world, except that a war would require too many white people to sacrifice."

Could the courts then require Congress to declare war? One would think (and hope) not. The framers left some things to the exclusive discretion of the elected branches, no matter how thoroughly wrong (and, in other contexts, unconstitutional) those branches' decisions might turn out to be.

Same deal with pardons. Because the Framers understood the pardon power as an executive check on judicial error or excess (a point that has been yelled in my direction more than once), they stripped the judicial branch of ALL authority over the matter.

It is a conceit of the legal profession that every wrong has a remedy in judicial proceedings. But the Framers had a different vision. There are some wrongs the people will have to correct at the ballot box, not by a lawsuit.

Posted by: Bill Otis | Dec 14, 2011 10:01:56 AM

I was going to use the following examples:

(1) If Congress were to go irrational and during the count of electoral votes of a presidential race simply come to an outcome manifestly at odds with the reported results.
Or -- and more easy to envision (2) impeachment and conviction for charges that hardly anyone outside the house and senate believe to be a high crime or misdemeanor.

In neither of those cases do I believe there is any relief to be had at the courts and the same with how the president chooses to use the clemency power.

Or a slightly different example based on what Bill said, if Congress were to actually pass a declaration of war, and the president signed it and then prosecuted based on that declaration, the courts would have no legitimate power to stop the action, regardless of how unjust the war might be in reality.

Posted by: Soronel Haetir | Dec 14, 2011 10:49:08 AM

Bill and Soronel,

I think you guys are generally correct but overstating the case. For example, the courts have presumed that they may review the constitutionality of conditions attached to clemency grants, and in fact have done so. E.g., Hoffa. There, the court found the condition to be constitutional, but it nevertheless asserted jursidiction to decide the matter. Moreover, you're both ignoring DEJ's point -- even if a court can't order to the president to grant a pardon/commutation, it could declare that a particular procedure is unconstitutional. Even if, for practical purposes, this would be unenforcible, I don't think it would be politically meaningless.

Posted by: anon2 | Dec 14, 2011 1:17:07 PM

I would say that the only legitimate judicial result from reviewing an unconstitutional condition would be to void the offer in the first place, not to uphold the grant minus the offending condition. And again, that is no relief at all to the claimant and so I am not sure they should even have standing. I know that part of the requirements for standing is that the claimant have some relief in mind that the court could order if the claim were proven that would be some sort of vindication. I just don't see voiding a conditional grant as any sort of vindication.

I suppose that is also my main reason for saying that an order to the president to go back and use a different process is still no relief.

If, as I believe, the president does have the constitutional authority to openly issue arbitrary, discriminatory and capricious pardons then I don't see any authority for the courts to step in and say use a non-arbitrary, non-discriminatory and non-capricious process to arrive at those grants.

And certainly the pardon authority meets nearly every item in the enumeration in Baker v. Carr, 369 U.S. 186 describing the political question doctrine:
It is apparent that several formulations which vary slightly according to the settings in which the questions arise may describe a political question,
although each has one or more elements which identify it as essentially a function of the separation of powers. Prominent on the surface of any case held
to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack
of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind
clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate
branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from
multifarious pronouncements by various departments on one question.

I will also say that while I believe the president can use such criteria and could even order the pardon attorney's office to use such discriminatory criteria I don't think Congress has that power. If Congress were to fund an office and the statute contained such discriminatory conditions I do believe that would be open to court challenge, though again it might not be any actual relief as the court might then decide that the condition is nonseverable and so the entire budget item is void.

I also believe Congress would be free to not fund the office if the president were to make such an order to the pardon attorney. But that couldn't actually stop the president from issuing arbitrary, discriminatory and capricious pardons, it would just cut off one conduit for petitions.

Posted by: Soronel Haetir | Dec 14, 2011 2:42:19 PM

anon2 --

"Moreover, you're both ignoring DEJ's point -- even if a court can't order to the president to grant a pardon/commutation, it could declare that a particular procedure is unconstitutional."

Not unless it annoints itself empowered to render declaratory judgments, which years of precedent hold it cannot do. The reason for this is not to nullify judicial power but to preserve it: The judiciary is wisely reluctant to go down the path of issuing opinions that have all the force of a windbag, lest windbagitis metastasize.

As I said, the Constitution does not give the unelected judiciary the final say over every last thing, and it could not have been otherwise in a country whose very founding was premised on the primacy of democratic self government.

Posted by: Bill Otis | Dec 14, 2011 6:10:54 PM


Did the Supreme Court err by ordering Nixon to turn over the tapes, merely because, if he'd defied the Court's order, there is little they could have done about it? Striking down the hypothetical scheme, in which a President brazenly announces that blacks will not be considered for clemency, is not meaningless exercise.

Posted by: anon2 | Dec 14, 2011 8:43:41 PM

If Mr. Morrison did not like the process of routinely reviewing and denying pardon requests, why did he work in the Pardon Office for 10 years? If I knew I was working in an essentially clerical function, I would get the hell out of there. But if I were less ambitious, I might just sit there and shuffle paper and collect my pay check. Did he feel he made a difference in a few deserving lives? I hope so. Perhaps a wise President in the future will establish a process that would encompass an objective review of pardon requests by a group of retired Federal judges, bi-partisan distinguished attorneys from the public and private sector, etc. that would review pardon requests in an apolitical manner and then once or twice a year the President could issue an order endorsing the Pardon Committee's recommendations. This would give the President cover from political attacks and go a long way towards the true dispensation of compassion and justice.

Posted by: mike | Dec 14, 2011 9:55:39 PM

anon2 --

The President is not given plenary power by the Constitution to withhold evidence in an on-going case. By contrast, he IS given plenary power to pardon or not to, and such power subsumes the power to adopt any standards he sees fit, or none at all, in order to decide what pardons, if any, to grant.

Your arguments take root in a fantasy common among the defense bar. It knows it can't get its agenda enacted by democratic processes, so it tries to enlist undemocratic processes to get it done (see, e.g., the endless litigation against the DP when attempts at legislative repeal fail).

This "courts-are-the-all-purpose-boss" view of pardons is the latest gig. Having failed with the legislature to get disfavored (i.e., drug) laws repealed, and having failed too to get an acquittal at trial, the defense bar wants to get the client off with a pardon. When that too fails in the exercise of Presidential discretion, the defense bar seeks to transform what the Constitution makes a solely discretionary practice into a judicially reviewable one.

As I said, and you don't refute, the Constitution does not give the unelected judiciary the final say over every last thing, and it could not have been otherwise in a country whose very founding was premised on the primacy of democratic self government.

Criminal defendants don't want it this way -- but then there are lot of things (starting with Granny's pocketbook) that criminal defendants want but should not, and are not going to, get.

Posted by: Bill Otis | Dec 14, 2011 11:32:55 PM

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