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February 3, 2020

A deep look into the still deeply problematic world of federal clemency

The Washington Post has this long new article about the federal clemency power headlined "Most Trump clemency grants bypass DOJ and go to well-connected offenders."  I would recommend the article in full, even though I think the piece fails entirely to note widespread criticisms of the modern failings of the Office of the Pardon Attorney and also fails to note that many Democratic candidates for Prez have proposed reforms to DOJ's clemency role.  Here are excerpts:

Under Trump, the pardon office has become a bureaucratic way station, according to government data and interviews with lawyers, criminal justice advocates, and former pardon and White House officials.  Most of Trump’s grants of clemency have gone to well-connected offenders who had not filed petitions with the pardon office or did not meet its requirements, The Post review shows.

“The joy you get finding meritorious people, working on those cases, making recommendations that go to the White House, seeing people receive the grants — you feel like you’ve done something,” said Larry Kupers, the former head of the office, who quit last year.  “If that’s not happening, it feels like you are spinning your wheels.”

Trump’s approach is perfectly legal.  The Constitution’s only restrictions on the pardon power is that it applies only to federal crimes and not to impeachment.  Trump has reveled in that clout, saying “the power to pardon is a beautiful thing,” and claiming he has the “absolute power” to pardon himself. He has used the power, however, very sparingly....

Asked what advice he would give offenders seeking leniency, Kupers said, “Find a way to get to Kim Kardashian. I’m very serious about that.”...

For decades, federal offenders filed petitions for clemency with the pardon office, which assigns a staff attorney to investigate each case.  The office may be one of the least visible and least understood corners of a federal government scorned by a president who has declared war on what he calls the “deep state.” With an annual budget of about $4.5 million, the office employs about 19 people, including 11 attorneys.

For pardons, the office looks for acceptance of responsibility and good conduct for a substantial period of time after conviction, among other considerations, according to justice department guidelines. Commutations hinge on the undue severity of a sentence, the amount of time served and demonstrated rehabilitation....

[Trump's] administration inherited a backlog of more than 11,300 petitions, according to justice department statistics. Nearly 7,600 petitions have been filed since Trump took office, as of late January. About 5,900 petitions have been closed by the pardon office during Trump’s tenure because the inmate was released, died or ineligible for clemency.

Trump’s decisions on only 204 petitions means nearly 13,000 people are waiting. A Justice Department spokeswoman declined to say how many of its recommendations are backlogged at the White House.... The current pardon attorney, Rosalind Sargent-Burns, said she was not authorized to talk to the press....

Most presidents in recent decades have faced accusations at one time or another that they exploited the pardon power. Bill Clinton issued pardons in the final hours of his presidency to his half brother, a Whitewater business partner, his former housing secretary and a fugitive commodities trader married to a major Democratic donor.

Presidents also have circumvented the formal pardon process to advance national interests, as when Obama offered clemency to seven Iranians charged with violating U.S. trade sanctions in exchange for the release of four Americans imprisoned in Iran, including Post reporter Jason Rezaian.

Under Trump, however, politically motivated grants have become the rule, not the exception....

Lawyers who specialize in clemency say the system has moved slowly for decades. The way they tell it, the pardon office is like a black box — the only updates available on petitions are “pending” and “denied.” Deputy attorneys general, who make the final determination before petitions reach the White House Counsel’s Office, tend to be reluctant to mitigate decisions made by fellow prosecutors in the criminal justice system.

As regular readers now, I am more than happy to criticize Prez Trump for his distinctive approach to the use of his clememcy powers. But he does merit praise for using the power at all, and prior Presidents have not had sounder records on this front even when paying more attention to the (often harsh and dysfunctional) advice of the Justice Department.

February 3, 2020 at 05:38 PM | Permalink


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