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January 7, 2013

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:

January 7, 2013 at 02:36 AM | Permalink


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A few quick points on clemency:

1. President Ford's pardon of former President Nixon poisoned the well for future clemency grants at all levels. President Ford didn't prepare the country for it, didn't wait until a criminal case had begun, and didn't wait until Nixon asked for a pardon.

2. In Michigan, where I practice, the governor's clemency power is not absolute, but is subject to law. The law requires the approval of the parole board, and that requires an application from the inmate. Thus, there are no post-release pardons. The last I knew, the parole board had granted 1 clemency request--probably in a case of terminal illness--out of more than 32,000 matters it handled that year. Why bother applying, with success rates so low? After all, most criminal cases that need clemency come in the state court systems.

3. Sentencing guidelines mean that sentences imposed are presumed reasonable, and there is therefore no "need" for clemency, as the sentence imposed was, by definition, not too harsh.

Posted by: Greg Jones | Jan 7, 2013 6:04:15 PM

== "As ProPublica documented in an analysis of Bush administration pardons, whites benefited" ==

Congressman Charlie Rangel would go much farther:
"George Bush is our Bull Connor…if you're black in this country, and you're poor in this country,
it's not an inconvenience—it's a death sentence." ~NY Sun, 9/23/05

=<= Ironic, prosecutors can't even secure a death sentence in this country
for a man who shoots 18 innocent people, killing 6 (Loughner).=>=

Posted by: Adamakis | Jan 8, 2013 1:37:57 PM

Well Greg in your state sounds like time to admit the truth. There is no clemency sytem and time to shit can the joke of a system you have and fire everyone involved and save the money i'm certain the state desperatly needs in a REAL area.

Posted by: rodsmith | Jan 8, 2013 3:35:51 PM

well Adamakis

"=<= Ironic, prosecutors can't even secure a death sentence in this country
for a man who shoots 18 innocent people, killing 6 (Loughner).=>="

Maybe if the state hadn't been caught with their hands in the cookie jar so many damn times stacking the deck they could!

Posted by: rodsmith | Jan 8, 2013 3:36:42 PM

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