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November 20, 2018

"The process to pardon turkeys is more rational than the one used for humans"

Regular readers know I am ever eager this time of year to complain about the contrast between the annual predictable turkey pardons and unpredictable White House clemency efforts.  Helpfully, my colleague and clemency guru Mark Osler has this matter well covered in this new CNN commentary with a headline that I have used as the title for this post.  Here are excerpts:

This week, we will once again be treated to the awkward spectacle of the President pardoning a turkey while confused-looking children look on.  Of late, that ceremony has been accompanied by a raft of opinion pieces suggesting the President should consider granting clemency to some humans, as well.  I've written a few of those myself.

After years of fruitlessly making that same argument, a more worthwhile observation might be this: The process used to choose which turkey might be pardoned is far more rational, efficient and effective than the one used to evaluate clemency for humans.  In particular, the turkey-choosing process features four attributes sorely missing from the human one.

First, it occurs regularly.  Turkeys are pardoned every year, not just in the waning days of an administration.  Second, decisions are made by objective specialists with the current chairman of the National Turkey Federation, or NTF, responsible for managing a thorough selection process. Typically, the NTF head will familiarize dozens of birds with human contact and saturate them with loud music before making a final choice.  Third, there are defined criteria.  The finalists are selected based on their willingness to be handled, their health and their natural good looks.  Fourth, attention is paid to making sure they thrive after their grant of clemency.  After the ceremony, they are sent to Virginia Tech's "Gobbler's Rest" exhibit, where they are well cared for.

This contrasts sharply with the process of giving clemency to humans.  For the past seven years I have worked with my students to prepare and file petitions on behalf of deserving clients, and have found that the procedure through which clemency is granted is irregular, run largely by biased generalists, devoid of consistent, meaningful criteria, and it does little to ensure success of individuals after their release....

What's missing is all the things that make the turkey process work.  It's irregular, as inattention by any one of the numerous sequential evaluators stops the whole thing.  And instead of objective specialists, we have decisions being made by the deputy attorney general, who is neither objective nor a specialist.  The criteria are poorly articulated and currently issued by the stiflingly conflicted DOJ.  And finally, there is little to no connection between the process and what comes after, as prison gives way to freedom.

Is there a better way?  Sure.  Just take the process out of the DOJ and put it in the hands of a board, as most states do, and then have that board make regular recommendations pursuant to consistent criteria while monitoring outcomes.  If we did that, the clemency process would finally be at least as functional as the one that informs a silly holiday tradition.  There is a place for circuses, but we also need to regularly bake the bread of mercy that is promised in the Constitution.

November 20, 2018 at 09:35 AM | Permalink

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