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August 15, 2014

"Restructuring Clemency: The Cost of Ignoring Clemency and a Plan for Renewal"

The title of this post is the title of this notable and timely new article by Rachel Barkow and Mark Osler.  Because I admire and respect the work of both these folks so much, I am going to make sure I read this joint-effort even on a sunny summer Friday afternoon.  Here is the abstract:

Over the past three decades, the pardon power has too often been ignored or used to create calamities rather than cure them.  Our most recent Presidents seem to realize the system is not working only at the end of their time in office, when they feel safe in giving grants but become aware of the fact that the system does not produce many recommendations for doing so even when asked.  As a key constitutional power, clemency deserves to be more than an afterthought to a presidential term.

The use of the pardon power is a necessary element in a fully-functioning system of criminal law.  Recent presidents, however, have largely ignored this powerful tool, even as some have sought to expand the power of the office in other ways.  This essay seeks both to describe the costs of this trend and to propose important structural reforms to reverse it.  Specifically, we advocate for the creation of an independent commission with a standing, diverse membership.  While this commission should have representation from the Department of Justice and take the views of prosecutors seriously, the commission itself should exist outside the Department and its recommendations should go directly to the White House.  This new model of clemency should also pay attention to data both to create uniform standards and to focus the use of the pardon power on policy as a management tool.  An emphasis on data will also help the new pardon commission make evidence-based decisions about risk and reentry.  It is time to view clemency reform as a priority for the office of the presidency no matter who holds the position.  This is the time to create a better machine of mercy.

August 15, 2014 at 01:52 PM | Permalink


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I tend to see the non-use of the clemency power as a political calculation rather than the system being broken as such. The lesson that clemency decisions can turn around and bite hard has been well learned, and so it is no coincidence that the power is not used while someone has to retain their seat or aspires to a still higher office.

There may well be plenty of inmates who are fully deserving of clemency and would cause no further harm if released; but sorting those prisoners from the even larger number who would see a loosened clemency system as yet another con to pull is a Herculean task.

Posted by: Soronel Haetir | Aug 15, 2014 2:44:27 PM

Soronel, which is precisely why a quasi-independent board is highly desirable.

As has been suggested before a five member board is readily available though its membership will provoke howls from all sides. A 3-2 vote for commutation or pardon goes directly to the President:

1. Federalist

2. Bill Otis

3. Michael R. Levine

4. Justice Dept. Representative

5. Prof. Douglas Berman

Posted by: anon | Aug 15, 2014 6:09:17 PM

Isn't this just a fancy way of saying that we should restore the role of the Parole Commission?

Posted by: Observer | Aug 15, 2014 9:42:18 PM

SH: Low hanging fruit for Clemency.

All violators of mala prohibita, and regulatory crimes. Out.

All marginal conspirators in the drug business, girlfriends that took phone messages, charged with conspiracy, but really not involved, except fictitiously. Out.

All child porn downloaders. The production of child porn is child abuse. The viewing is nothing, and is actually associated with big decreases in actual child sexual abuse, as adult pron legalizaton was associated in drops in the rate of adult rapes. I have watched violent crimes on Youtube without suborning them.

All victims of prosecutorial over-reaching, after trying to defend themselves against the lawyer client, the criminal. People with weapons charges who tried to defend themselves or others.

People who threatened the life of the President. His life is not worth more than that of any one else. It is a crime to threaten others only if imminent and prepared to go at the time.

You get the idea. Correct the stupidity of a law, of its enforcement, of its sentencing.

Posted by: Supremacy Claus | Aug 15, 2014 11:16:42 PM

Anon: You forgot a guy.

The crime victim, aghast at the pro-criminal loading of your Commission.

All your members are appalling lawyer rent seeking members of the criminal cult enterprise, intelligent people whose intellect has been totally devastated by the law education indoctrination. They all believe in supernatural legal doctrines. They believe in lawless judicial review. They are all criminal coddlers. Why? The criminal generates massive government make-work jobs. The crime victim generates nothing and may rot. Federalist is a transactional lawyer, who may enjoy dealing with people problems instead of shuffling papers, and generating impenetrable gibberish to hide his clients' real intent. He is the only one without a conflict of interest, in not benefiting from more crime.

Posted by: Supremacy Claus | Aug 17, 2014 9:03:22 AM

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