New York Times editorial assails Prez Obama's considerable clemency failings

The New York Times on Sunday published this editorial, headlined "The Quality of Mercy, Strained," which justifiably criticized President Obama for his dismal record on clemency. Regular reader have often heard such complaints from me, but this Times editorial effectively laments the current state of affairs after 2012 came and went without any clemency activity. And the piece makes the sound recommendation that Prez Obama take the clemency screening process out of the Department of Justice. I am pleased to reprint the full editorial here, in part because I agree with just about every word of it:

Barack Obama has rarely exercised presidential clemency to grant pardons and restore the civil rights of convicted criminals, a power that Abraham Lincoln, Franklin D. Roosevelt and other presidents used with dedication to correct injustices in the legal system.

Mr. Obama has pardoned only 22 people, fewer than any president since the modern era of pardons began in 1900. He has granted a pardon for 1 out of every 50 applicants, compared with 1 out of 33 for George W. Bush, 1 of 8 for Bill Clinton and 1 of 3 for Ronald Reagan.

In part, this has been a reaction to Presidents Clinton and Bush, both of whom compromised the pardon power with cronyism.  But the basic problem may be that Mr. Obama allowed himself to be crippled by the pardon process itself.  That process is managed by the Justice Department, which receives applications for clemency and makes recommendations to the White House.

Presumably, the president is willing to use acts of clemency to right the wrongs of the sentencing and judicial systems.  Yet the same cannot be said of the Justice Department, which has a prosecutorial mind-set.  It has undermined the process with huge backlogs and delays, and sometimes views pardons as an affront to federal efforts to fight crime.

Over the years, too, the process appears to have been tainted by racial bias.  As ProPublica documented in an analysis of Bush administration pardons, whites benefited from pardons four times as often as members of minority groups, even though blacks alone made up 38 percent of the federal prison population.  That report prompted a continuing Justice Department review by its Bureau of Justice Statistics.

In addition, the department’s pardon office is run by a Bush-appointed lawyer, Ronald L. Rodgers, whose professional conduct has been excoriated by the Justice Department’s own inspector general and referred to the deputy attorney general for possible administrative action.  In 2008, in transmitting a proposed pardon to the White House, Mr. Rodgers misrepresented the views of both the United States attorney who made the recommendation and the judge who seconded it.  The prisoner was denied a pardon.

One simple and immediate way for the president to reinvigorate the pardons process is to choose a person of stature and energy — say, a federal judge — to steward his administration’s pardon duties.  At the same time, he can end the department’s conflict of interest by replacing the pardons office with a new bipartisan commission under the White House’s aegis, giving it ample resources and real independence.

There is much good to be done, for the sake of justice as well as mercy.  Many federal inmates are serving egregiously long prison terms under mandatory minimum sentencing schemes.  Mr. Obama could use the pardon power to grant clemency to some long-term prisoners, until Congress reforms those laws.  He could also use that power to spare some federal offenders who have completed their prison terms from the legal restrictions that have kept them from getting jobs, places to live, business licenses and the chance to vote.

And he could address the unfortunate consequences of the nation’s unfair drug sentencing laws.  As of November 2011, there were at least 5,000 federal prisoners serving sentences for crack cocaine who deserved consideration for reduced sentences after a major reform of federal drug laws in 2010.  Those prisoners were sentenced when the penalty for crimes involving crack was far more severe than for crimes involving powder cocaine; in 2010, Congress reduced that difference, but the older sentences remained unchanged.

In 2003, Justice Anthony Kennedy observed that the pardon power had been “drained of its moral force.”  The Constitution grants the president alone the power to grant “pardons for offenses against the United States.”  It is time for Mr. Obama to vigorously exercise this august and singular responsibility.

Some recent and a few older posts concerning federal clemency practices:

• "Obama Has Granted Clemency More Rarely Than Any Modern President"
• Press and pressure prompting talk of clemency reforms in White House
• "Presidential Pardons Heavily Favor Whites"
• Investigation reveals (shockingly?!?!) that politicians and politics impact federal pardons
• DOJ audit of federal clemency process with sound and fury signifying nothing
• Updated numbers on President Obama's disgraceful clemency record
• Noting President Obama's (still) stingy clemency record
• ProPublica reveals more ugliness in federal clemency process
• "Obama's Mercy Dearth"
• Los Angeles Times calls out our "no-pardon president"
• "A no-pardon Justice Department"
• Effective USA Today coverage of President Obama's clemency stinginess
• "Obama should exercise the pardon power"
• NYTimes op-ed assailing Obama's pathetic pardon practices