It's not that there is a shortage of claimants. Earlier this month, Obama formally denied 605 petitions for commutation of sentences and 71 pardon requests. It's hard to believe that none of those was deserving of approval.
In the public mind, the president's authority to grant clemency tends to be associated with high-profile and politically motivated grants of clemency, such as President Gerald R. Ford's pardon of Richard M. Nixon for Watergate crimes, President Clinton's scandalous pardon of the fugitive financier Marc Rich or President George W. Bush's commutation of the sentence of I. Lewis "Scooter" Libby, the former aide to Vice President Dick Cheney who was convicted of perjury and obstruction of justice.
But presidents also have used the pardon authority to right wrongs and reward rehabilitation in much less prominent cases. They are aided in such decisions by the Office of the Pardon Attorney in the Justice Department, which scrutinizes claims for clemency and passes them along to the White House with recommendations. There are strict standards for clemency petitions submitted through the pardon attorney. For example, no petition for a pardon may be submitted until five years after a prisoner is released or, if no prison sentence was imposed, five years after conviction. Petitions for a commutation of a sentence are usually entertained only when no other form of relief is available.
Ideally, presidents would give great deference to the pardon attorney's recommendations and take a liberal view of the clemency power, exercising it often and on the basis of clear standards. Their reluctance to do so likely reflects not the merits or demerits of particular petitions but the political liability of appearing soft on crime. That reality has led some advocates of more pardons to hope that Obama is waiting to announce grants of clemency until after next week's election. If so, we hope his first exercise of his clemency power won't be his last.
http://www.latimes.com/news/opinion/opinionla/la-ed-1101-pardon-20101030,0,2675529,print.story
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OPINION
A no-pardon Justice Department
President Obama should rely more on his own moral judgment than the Justice Department's in making clemency and pardon decisions.
By Samuel T. Morison
November 6, 2010
The Times' well-intentioned Oct. 30 editorial bemoaning that fact that President Obama hasn't yet granted any pardons or commutations, in which the editorial board correctly notes that the president is "aided in such decisions by the Office of the Pardon Attorney in the Justice Department," betrays a profound misunderstanding of the role the pardon office plays in the clemency advisory process. In particular, The Times writes, "Ideally, presidents would give great deference to the pardon attorney's recommendations and take a liberal view of the clemency power, exercising it often and on the basis of clear standards."
This assertion is hopelessly confused. In fact, the problem in the vast majority of garden-variety clemency cases — those involving ordinary applicants for whom a grant of clemency would not cause any public controversy — is precisely that recent presidents have given far too much deference to the pardon attorney's office. Having spent more than 10 years as a staff attorney in that office, I can say with some authority that the prevailing view within the Justice Department is that the pardon attorney's sole institutional function is to defend the department's prosecutorial prerogatives. There is little, if any, pretense of neutrality, much less liberality. On this parochial view, the institution of a genuinely humane clemency policy would be considered an insult to the good work of line prosecutors.
As a result, there is a strong presumption within the pardon office that the number of favorable recommendations should be kept to an absolute minimum, regardless of the equitable merits of any individual petition. This stance ignores the reality of a burgeoning federal prison population of more than 200,000 inmates, many serving lengthy sentences for nonviolent drug offenses, and the proliferation of collateral disabilities that hinder ex-offenders' ability to restart their lives, which the attorney general himself has criticized as a "recipe for high recidivism."
Yet the bureaucratic managers of the Justice Department's clemency program continue to churn out a steady stream of almost uniformly negative advice, in a politically calculated attempt to restrain (rather than inform) the president's exercise of discretion. This advisory record presupposes, falsely, that the federal criminal justice system is virtually flawless; that injustices almost never occur, sentences are almost never excessive, circumstances almost never change, and mercy is almost never appropriate.
No disinterested person really believes this. Even if most prosecutors, judges and legislators act with the best of intentions, they can and do make mistakes with some regularity, which often are evident only with the benefit of hindsight. Not surprisingly, the frank acknowledgment of such mistakes tends to strengthen, rather than undermine, public confidence in the legitimacy of the system. The traditional purpose of executive clemency is to serve that error-correcting function, at least where courts and legislatures fail to intervene. As the Supreme Court once put it, "Without such a power of clemency, to be exercised by some department or functionary of a government, it would be most imperfect and deficient in its political morality."
Accordingly, if Obama is going to "take a liberal view of the clemency power, exercising it often and on the basis of clear standards," as The Times suggests, he will have to defer less to the jaundiced advice he receives from the Justice Department and rely more on his own moral judgment.
Samuel T. Morison was a staff attorney in the Justice Department's Office of the Pardon Attorney. The views expressed here are solely his personal opinions.
http://www.latimes.com/news/opinion/opinionla/la-oew-morison-pardon-20101106,0,6535352,print.story |
