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October 17, 2014

ProPublica urges next AG to "Fix Presidential Pardons"

The title of this post is drawn from the headline of this strong new piece from the Editor-in-Chief of ProPublica. The full headline and subheadline provides the basics: "For the Next Attorney General, a Modest Suggestion: Fix Presidential Pardons; More than two years ago, a ProPublica series showed that white applicants were far more likely to receive clemency than comparable applicants who were black. Since then, the government has spent hundreds of thousands of dollars on a study, but the pardons system remains unchanged." And here are a few excerpts from a piece that is styled as an open letter to the next Attorney General:

Dear Possible Attorney General Nominees (You Know Who You Are),...

More than two years ago, ProPublica reporters Dafna Linzer and Jennifer LaFleur revealed that white applicants were nearly four times as likely to receive a presidential pardon as were comparable African Americans. The story appeared on the front page of The Washington Post, our publishing partner. I know, I know, this seems improbable but LaFleur spent many months doing a statistical analysis that eliminated every other factor we could imagine that might explain this disparity. We sent our findings and methodology to several leading experts in the field. All agreed that race was the only factor driving the vast difference. We published our methodology and you can read it here. Linzer's reporting on the pardons process suggested that it was far more subjective than you might have thought. We wrote about how race creeps into decision-making even when no one is overtly biased. It's worth a look.

Given the starkness of these findings, we at ProPublica thought, naively, that your predecessor and his boss would move immediately to address this problem. As I'm sure you're aware, a president's authority to grant pardons is one of the only unchecked powers in our constitutional system of checks and balances. When it comes to pardons, President Obama can do whatever he wants.

We were told by several political insiders that the pardon stories did not prompt reform because of their timing. They appeared in late 2011, just as the president was gearing up for what was expected to be a bruising campaign for a second term. It was not considered the politically ideal moment for the nation's first African-American president to make the justice system fairer for people of color. And so the government did what it so often does in such circumstances: It commissioned a study to see if our findings were correct....

If history is any guide, you'll be getting a tsunami of pardon requests in the last months of the administration. It might be nice to have come up with some serious reforms by then to fix a process that is so demonstrably flawed. There are lots of ideas about what could done, from setting up an independent pardons commission to taking the pardons office out of the Justice Department.

Good luck with the confirmation hearings. And remember, two years can fly by a lot quicker than you'd ever imagine....

Best Regards,

Stephen Engelberg/Editor in Chief, ProPublica

October 17, 2014 at 12:18 AM | Permalink


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Well, despite the (maddeningly) slow pace of the new Clemency Project 2014, have the authors of the article even heard about the new guidelines announced about 6 months ago?

Posted by: anon | Oct 17, 2014 4:15:55 PM

Pro Publica is a notorious left wing hate speech site. It has the credibility of the David Duke site. It is worthless trash.

One wonders if they examined campaign donations as a factor accounting for the racial disparity. As a group, black are stingy in campaign donations.

Posted by: Supremacy Claus | Oct 17, 2014 7:10:45 PM


Do you think a President should exercise his constitutional power of clemency at all? If so, do you think that excercise should be entirely arbitrary. or should it be guided by criteria? If the latter, what criteria would you suggest?

Posted by: anon | Oct 17, 2014 8:01:25 PM

As you may know, I follow utility. I believe the only mature purpose of the criminal law is incapacitation to enhance public safety. So a murderer may go home, and a shoplifter gets executed (if a mass murdering drug kingpin). Retribution is from the Bible, and reflects the culture of the Iraqi tribesmen that wrote it. They lived short miserable lives, they were and are animals. Rehab is a joke. Because repeat offenders commit hundred of crimes a year, each, the damage they do is several orders of magnitude that of the cost of incarceration. To give a small example. One moves in next door. The real estate value of the entire block has just fallen by $millions.

The adjudicated charge in 95% of cases is fictitious. So the sole reliable guide is the character of the prisoner. Character is the long term behavior pattern, and the way he reacts to things. Furthermore, many criminals do great in the structured setting of prison, fall apart on the outside.

So the criteria must be, will physical public safety be at risk? Will this person contribute more inside or outside prison? Will his damaging everything around exceed the cost of incarceration?

Would I keep an innocent person in prison if he was going to cause damage after release? I would want to do an extra careful analysis of the first two questions on that person.

Should clemency be used as a safety valve to release people wrongfully convicted, perhaps 10 to 20%? It should if the standard of no doubt whatsoever" is met, as in DNA exoneration. Should such innocent people get compensated? Yes, from the malpractice insurance of the judge and of the prosecutor.

Posted by: Supremacy Claus | Oct 18, 2014 1:21:17 AM

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