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December 1, 2014

Making the case (again) for fixing the federal clemency process

Over the holiday weekend, Professors Rachel Barkow and Mark Osler renewed their call for reform of the federal clemency process through this Washington Post opinion piece.  Here are excerpts from the start and end of the piece:

In the run-up to Thanksgiving, it was a sure thing that a turkey would get an efficient reprieve from President Obama. But that’s only because the turkey did not have to go through the normal pardon process. If it had, it would likely have waited more than four years and have had several layers of government bureaucrats nit-picking its case. The federal clemency process — for humans, at least — is broken, and Obama should act now to fix it for the benefit of his and future administrations.

Since the 1980s, presidents have utterly failed to use their constitutional pardon power as a systemic check on federal laws and prosecutors that go too far. As a series of ProPublica reports published in The Post revealed in 2011, recent presidents grant pardons and commutations rarely and arbitrarily, largely giving relief only when it is requested by members of Congress or other influential people. Obama has been among the worst of the lot....

What is broken is no mystery. The key gatekeepers for this process are in the Justice Department — the same agency that prosecutes federal crimes. Unsurprisingly, the department has been reluctant to second-guess its own decisions and rarely recommends that the White House approve a clemency petition. Moreover, each petition must pass through as many as seven levels of review prior to approval, and many of those doing the reviewing (such as the deputy attorney general and the White House counsel) have plates already full with other duties....

It’s easy to envision a better method. As in countless other areas of law, from communications and securities regulation to establishing sentencing guidelines, a dedicated agency comprising experts could address the problem efficiently and effectively. The president should appoint a bipartisan commission of Democrats and Republicans with expertise in criminal law to consider all applications and track data on recidivism and other outcomes. The agency can work with the president’s reentry council to coordinate prisoners’ transitions back to civil society. And because the commission would be politically balanced, the president would not need to worry about being exposed to Willie Horton-style attacks, should a convict commit some new crime after being freed; these will be cases that people of all political stripes agreed deserved relief. President Gerald Ford used this device in 1974 when he created a temporary board to quickly process about 21,000 Vietnam-era draft evasion and deserter cases. One reason we know the Ford plan was a political success is because so few people remember it.

With a small but dedicated staff, such an agency would shrink the relevant levels of review to just three. There is a simple reason that states almost uniformly use such boards rather than the federal approach of sending the review through layers of prosecutors: It works.

Such a common-sense reform would provide the president with a lasting legacy that his successors would surely appreciate: a pardon process that works not just for turkeys on Thanksgiving but for everyone, all year long.

Just a few of many recent and older posts concerning federal clemency practices:

December 1, 2014 at 11:21 PM | Permalink


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"Obama has been among the worst of the lot..." Shameful. The one power that he unquestionably has-- to commute a draconian minimum mandatory sentence-he doesn't use. Cowardice.

Posted by: Michael R. Levine | Dec 2, 2014 10:45:58 AM

I still think "cowardice" is not the only reason.

Also, again, he and his administration has done various things to help defendants and temper the system, even when it brought some controversy.

Posted by: Joe | Dec 2, 2014 2:01:08 PM

The system is as unreasonable as the congress that oresides over the country currently is.

Undeciisive, self serving and pretty much ignores practical common sense.

If the federal system ditched all mandTories and lowered everything in the books by 50%, they still would be too high.

This is how absurd they are. Just because a crime is federal crime, truly just about anything could be a federal crime, doesnt mean the feds should beat their chests and say by god we are going to crucify this case. They pretty much crucify every case.

They warehouse people the same as a can if beans. Nope the expuration date hasnt been met, look at him next decade.

Posted by: 187Midwest Guy | Dec 3, 2014 4:22:44 PM

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