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February 22, 2016

Highlighting that, despite lots of talk and a little action, Prez Obama remains a clemency grinch

Over at his blog Pardon Power, political scientist PS Ruckman does a terrific job tracking and placing in historical context the latest date concerning the use of presidential clemency powers.  And these three recent posts highlight effectively that, despite lots of talk from the Obama Administration about a big clemency initiative, the current President the most notable story to date concerning Obama's clemency record is how stingy it is:

As long-time readers know, I have been urging Prez Obama to live up to his hope and change rhetoric in this arena since the day he was inaugurated seven year ago, as highlighted by these two posts from January 20, 2009: Inaugural rhetoric about freedom and liberty in prison nation and Is it too early to start demanding President Obama use his clemency power?.  (The extensive comments to the second of these posts are especially interesting to review with the benefit of seven years of political hindsight.)  In addition, way back in 2010, I authored this law review article titled "Turning Hope-and-Change Talk Into Clemency Action for Nonviolent Drug Offenders," which closed with this recommendation:

President Obama ought to seriously consider creating some form of a "Clemency Commission" headed by a "clemency czar."...  Though a "Clemency Commission" headed by a "clemency czar" could be created and developed in any number of ways, my vision and goals here are meant to be fairly basic.  The idea is for President Obama to create a special expert body, headed by a special designated official, who is primarily tasked with helping federal officials (and perhaps also state officials) improve the functioning, transparency, and public respect for executive clemency.  Though the structure, staffing, and mandates of a Clemency Commission could take many forms, ideally it would include personnel with expertise about the nature of and reasons for occasional miscarriages of justice in the operation of modem criminal justice systems — persons who possess a deep understanding that, in the words of James Iredell, "an inflexible adherence to [severe criminal laws], in every instance, might frequently be the cause of very great injustice.

The Clemency Commission could and should study the modem causes of wrongful conviction, "excessive" sentences, and overzealous prosecutions, and then make formal and public recommendations to the President and other branches about specific cases that might merit clemency relief or systemic reforms that could reduce the risk of miscarriages of justice.  In addition, the Commission could be a clearinghouse for historical and current data on the operation of executive clemency powers in state and federal systems.  It could also serve as a valuable resource for offenders and their families and friends seeking information about who might be a good candidate for receiving clemency relief. Though the creation of a Clemency Commission would be an ambitious endeavor, the effort could pay long-term dividends for both the reality and the perception of justice and fairness in our nation's criminal justice system.

I have reprinted this suggestion here because, though I made the pitch in print more than half a decade ago, it still strikes me as timely and relevant to the on-going discussions about federal criminal justice reform.  Indeed, given this latest data marshalled by PS Ruckman and the seemingly limited success and limited basis for optimism as of February 2016 surrounding "Clemency Project 2014," I think Prez Obama and the rest of the federal criminal justice reform discussion might benefit now more than ever from the creation of some form of a "Clemency Commission" headed by a "clemency czar."  And, especially with US District Judge John Gleeson now only a few weeks away from stepping off the federal bench, there is an obvious candidate for the ideal first clemency czar.

As regular readers (and my students know), I could go on and on and on about this subject and especially about President Obama's unique missed opportunity to create a criminal justice reform legacy in this historically and constitutionally important arena.  But rather than repeat myself, I will just link to just a few of my prior Obama-era posts while starting to wonder in the wake of recent election results whether President Hillary Clinton or President Donald Trump might have the interest and ability to really bring hope and change to a very sorry modern federal clemency history.

Just a few of many recent and older posts concerning the modern ugly realities of federal clemency:

February 22, 2016 at 11:59 AM | Permalink


Obama probably doesn't want to take the risk of granting mass clemency. Or maybe he wants the satisfaction of having duped GOP pols. He shouldn't really worry about political risk--Obama and Marc Rich pardon enabler Eric Holder got three people killed in Florida with their ill-considered "no deportations to Haiti" order. Seems the self-styled Con Law prof missed the fact that Zavydas v. Davis (thanks 'rat Justices) holds that the government cannot indefinitely hold criminal aliens pending deportation ('rat judging at its finest). So the upshot of Obama's order and Zavydas was that Kesler Dufrene, a Haitian criminal, was set free, and he wound up murdering three innocent people. If three murder victims won't stir up political risk, then what will.

Posted by: federalist | Feb 22, 2016 1:13:01 PM

So Federalist, under your logic, no one should ever be released from prison early or not lest one of these folks commit a terrible crime when they hist the street.

Posted by: Harvard Grad and proud | Feb 22, 2016 4:30:33 PM

sorry for typo. "hist" should be "hit."

Posted by: Harvard Grad and proud | Feb 22, 2016 4:31:15 PM

Harvard grad--I don't see how my post has that logic at all, All I said was that Holder and Obama failed in their duty to protect our society from an immigrant criminal. God only knows how many other preventable victims there were as a result of this egregious failure to understand how a 5-4 decision coupled with the immigration order would result in foreseeable and preventable deaths of members of our society.

Posted by: federalist | Feb 22, 2016 6:29:04 PM

Thanks for the reminder of the 2010 Law Review article. I'm glad to be able to reference it again. I'll have to figure out a way pin it somewhere.

Apparently there are people who can look at systemic failure in our criminal justice system that is costing tax payers billions of dollars and tearing away our civil liberties and believe there should be no change because someone may be harmed.

If our government is to make sure that not one citizen is ever harmed again we will have two categories of life - The Guards and The Guarded.

Posted by: beth | Feb 23, 2016 10:10:46 AM

One of Obama's failures. He has a duty to pardon, grant clemency and appoint a Supreme Court nominee.

Posted by: HaroldRectum | Feb 23, 2016 10:27:32 AM

It has been darn near a week and no nominee as yet.

Posted by: HaroldRectum | Feb 23, 2016 10:27:54 AM

beth, should Kesler Dufrene have been allowed to walk our streets? That is a yes or no question.

Posted by: federalist | Feb 23, 2016 10:58:58 AM

"If our government is to make sure that not one citizen is ever harmed again we will have two categories of life - The Guards and The Guarded."

This would harm people too, as Prof. Berman has discussed when criticizing the current criminal justice system.

Posted by: Joe | Feb 23, 2016 3:18:30 PM

Isn't it amazing--the non-defense defense of the indefensible. Kelser Dufrene should have been deported. He wasn't. And all we hear is a lame-o response from the Harvard grad and some variations on the theme from Joe and beth.

Posted by: federalist | Feb 23, 2016 5:33:53 PM

Federalist, I agree with you that "Kelser Dufrene should have been deported." So?

Posted by: Harvard Grad and proud | Feb 24, 2016 3:03:03 PM

OK, Harvard, so why did you criticize my logic? My sense is that you were attempting some sort of non-defense defense of Obama and Holder. They (and the idiotic 5-4 decision in Davydas) were the reason that Dufrene was released.

That's the "So". Obama and Holder got innocent Americans killed and almost certainly got others victimized--and paid no political price for it.

Still proud of being a Harvard grad?--looks like that HLS education wasn't all it was cracked up to be.

Posted by: federalist | Feb 24, 2016 6:26:34 PM

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