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November 10, 2016

"Revitalizing the Clemency Process"

The title of this post is the title of this recent lengthy article authored by Paul Larkin which is available via SSRN (and which I hope someone can now put on the required reading list for the Trump transition team).  Here is the abstract:

St. Anselm once asked how a perfectly just God could also be merciful, since perfect justice and almighty grace could not seemingly coexist.  Fortunately, the criminal justice system does not need to answer that question, one that has proven inscrutable for theologians and philosophers, because its assumptions do not apply to our system.  An earthly judicial system will never be able to administer justice perfectly and cannot disburse mercy even approaching the quality of the divine.  But the clemency power can try to achieve as much of an accommodation between those two goals as any human institution can.  Unfortunately, however, our recent span of presidents, attuned more to political than humanitarian considerations and fearing the electoral wrath of the voters for mistaken judgments, have largely abandoned their ability to grant clemency in order to husband their political capital for pedestrian undertakings.  Far worse, others have succumbed to the dark side of “the Force,” have used their power shamefully, and have left a stain on clemency that we have yet to remove.

We now have reached a point where that taint can be eliminated.  There is a consensus that the clemency process can and should be reformed.  The problem lies not in the power itself, but in the process by which cases are brought to the President for his review and maybe in the people we have elected to make those decisions.  The Office of the Pardon Attorney should be transferred from the Department of Justice to the Executive Office of the President, and the President should select someone to fill that position.  That revision to the clemency process should help us see a return of the necessary role that clemency can play in a system that strives to be both just and merciful.

November 10, 2016 at 10:17 AM | Permalink


Uh, clelmency is over.

Posted by: Don't Ask | Nov 10, 2016 10:35:34 AM

Why? There are lots of Republicans who support clemency, and there are no shortage of white collar offenders who have gotten excessively long federal sentences. Might Trump actually have a unique soft spot for some business folks who got extreme prison sentences?

Posted by: Doug B. | Nov 10, 2016 11:10:35 AM

Are you for real? What has Trump said that would lead you to believe that?

Posted by: Don't Ask | Nov 10, 2016 11:48:50 AM

Don't Ask is optimistic that Trump won't help out white collar pals, huh?

Trump isn't running these things. The executive department is a big structure, which is something of a restraint here, and yeah, the pardon power will in some fashion continue.

Hey, how about people in the Christie Administration, including the two just convicted? Various other Republicans with nice connections that Trump might fight good candidates.

Posted by: Joe | Nov 10, 2016 12:02:56 PM

The only sure bet is that he pardons his son-in-law's father.

Posted by: Don't Ask | Nov 10, 2016 12:53:33 PM

Don't Ask: to my knowledge, no president in US history has ever refused to use his constitutional clemency power in any way --- though the last 3 Prez during their first terms did have pretty disgraceful records --- e.g., Bill Clinton issued ZERO clemencies in three of his first 4 years in office and GWB and BHO issued ZERO clemencies in two of their first 4 years.

Of course, now that Prez Obama has issued a record number of commutations, the most recent bar on that front has been set very high. Then again, Prez Obama is on pace for issuing the fewest pardons of any two-term Prez in modern history. So, if the focus was to be just pardons, this form of clemency has largely been "over" during the current Obama Administration.

In other words, I am "for real" --- specifically, I am really hoping that Prez Trump might live up to all his reform rhetoric in this arena (and do what Prez Obama was unwilling to do even though Prez Bush urged him to) by trying to improve the clemency process.

Posted by: Doug B. | Nov 10, 2016 1:04:43 PM

"all his reform rhetoric in this arena"

I don't recall any reform rhetoric as applied to this area. OTOH, see Buzzfeed, did say things about strengthening the death penalty.

Sure, he said generally we will be great again. That's a lot to cover though. Figure he has certain priorities.

Posted by: Joe | Nov 10, 2016 1:29:12 PM

Joe, the rhetoric I had in mind was "bringing change to Washington." Changing the clemency process is an overdue change that I hope Trump brings!

Posted by: Doug B. | Nov 10, 2016 6:32:37 PM

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