pardon power

  • July 17, 2015
    Guest Post

    by Margaret Love, former U.S. Pardon Attorney (1990-1997); and author of the ACS Issue Brief, “Reinvigorating the Federal Pardon Process: What the President Can Learn From the States.”

    *This post first appeared on The Crime Report

    On Monday, President Obama announced in a video address that he had commuted the sentences of 46 people sentenced to long prison terms for drug offenses.  His counsel, Neil Eggleston, stated that, “While I expect the President will issue additional commutations and pardons before the end of his term, it is important to recognize that clemency alone will not fix decades of overly punitive sentencing policies.“

    Mr. Eggleston added that “the President is committed to using all the tools at his disposal to remedy unfairness in our criminal justice system.” However, judging from the President's speech to the NAACP the next day, clemency is the only one of those tools that is calculated to result in any more prison releases.

    The President has now issued 89 commutations, the most since Lyndon Johnson. But even if the President ends up granting triple that number or more, it will hardly make a dent in the number of those in prison potentially eligible for relief under the announced standards of the Administration’s clemency initiative.  As Douglas Berman observed recently in his Sentencing Law and Policy blog, if the President one week were to commute as many as 80 federal drug prisoners, “this would still not be as substantively consequential for the federal prison population as the 400-plus drug defendants who will be sentenced to lengthy federal prison terms the very same week!”

    Meanwhile, the system for administering the clemency initiative is reportedly having difficulty gaining traction.  On July 4, The New York Times reported in a front page story that more than 30,000 federal prisoners have filed applications for commutation of sentence with Clemency Project 2014, the consortium of private organizations formed last year to assist the Justice Department in identifying worthy cases, but that a “cumbersome review process” has allowed only “a small fraction” of them to reach the President’s desk.

    A press release issued by Clemency Project 2014 shortly after the grants were announced conceded that only four of the 46 cases had been submitted under its auspices, and a review of the recipients of clemency reveals that several did not satisfy the Justice Department’s declared eligibility requirement of ten years already spent in prison.  Some prisoners have now expressed concern that perhaps the blessing of this Project was not the “fast track” to relief they had imagined.

    There is a growing sense of urgency among those who are responsible for organizing the clemency effort, in the Department of Justice and in the private bar.  In a recent training of volunteer counsel representing clemency applicants, Pardon Attorney Deborah Leff urged them not to delay in getting their clients’ petitions filed.

    "If there is one message I want you to take away today, it's this: Sooner is better," Leff said.

    Some federal public defender offices have been urged by Clemency Project 2014 to identify worthy applicants from among their client base and submit petitions for them prior to January 20, 2017, since it may take as much as a year for the Administration to review them.

    But even with the extraordinary resources that have been devoted to identifying prisoners who meet the Justice Department’s eligibility criteria, it seems unlikely that this task can be given more than a lick and a promise before the clock runs out on President Obama’s term.

  • January 28, 2013

    by Jeremy Leaming

    Nearly a week after providing a staunchly liberal vision for a second term –– leading law professors, attorneys and other advocates are providing via an ACS project ideas and proposals for the administration’s second term. (Regarding the tone and vision of the president’s second Inaugural Address, some apparently believe the president was merely defending New Deal programs and policy the Clinton administration had supposedly advanced.)

    The ACS project, “Toward a More Perfect Union: A Progressive Blueprint for the Second Term,” was recently launched with three Issue Briefs:

    Former U.S. Pardon Attorney Margaret Colgate Love looks at why the presidential pardon power “has lost its vigor, its integrity, and its sense of purpose,” and argues why it should be reinvigorated, as well as offering examples, many from the states, for reforming the process.

    Brookings Visiting Fellow Russell Wheeler examines the Obama administration’s record of filling federal judgeships during his first term and puts forth ideas for fixing a judicial nominations process that has become increasingly rancorous and ineffective. In a Brookings’ Up Frontblog post, Wheeler, a leading expert on the federal bench, explains, in part, why the process needs reforming. “First, judicial vacancies, which declined in Clinton’s and Bush’s first terms, increased during Obama’s. Empty judgeships hamper the federal courts’ ability to do their jobs – to sort out contractual disputes and other matters that, left unresolved, contribute to economic uncertainty, as well dispose of criminal complaints and adjudicate claims of discrimination and civil liberties violations.”

    University of Michigan Law School Professor David M. Uhlmann urges the Obama administration to exert great presidential leadership on climate change. Uhlmann, director of the law school’s Environmental Law and Policy Program, noted the small steps the Obama administration took during its first term. But, citing the work of climate scientists, Uhlmann warns that if our country fails “to limit greenhouse gas emissions, searing heat, widespread drought, destructive storms, and massive flooding will become commonplace.” Moreover, Uhlmann argues that climate change will be a “legacy issue” for the president – “either because he helped chart a course toward a sustainable future or because America failed to act while it was still possible to prevent catastrophic climate change. Uhlmann’s Issue Brief goes on to provide ways for the president to act, even without the help of Congress, to put the nation on a path toward sustainable resources.

    During his second inaugural, the president reminded us that “preserving our individual freedoms ultimately requires collective action” and unlike too many of his predecessors lauded the noble goal of advancing equality. Obama also took a shot at right-wing economic policy that is all about coddling the superwealthy at the expense of everyone else.

    The president also called for collective action on climate change.

  • December 12, 2011
    Guest Post

    By Samuel Morison, a criminal defense attorney in Washington, D.C., and a former staff attorney at the Office of the Pardon Attorney.


    For most of this country’s history, the practice of executive clemency has quietly functioned as an ancillary feature of the criminal justice system, without attracting much attention.  The purpose of the pardon power, as the Founders envisioned it, was to fill the inevitable gaps in the just and humane infliction of punishment.  In addition to being a failsafe to correct injustices that escaped judicial scrutiny, executive clemency was conceived as an equitable vehicle for bestowing legal “forgiveness” in appropriate cases.  As the Supreme Court observed in Ex Parte Grossman, “[t]he administration of justice … is not necessarily always wise or certainly considerate of circumstances which may properly mitigate guilt.”  Hence, “[e]xecutive clemency exists to afford relief from undue harshness or evident mistake in the operation or enforcement of the criminal law.”

    Beginning in the 1970’s, however, under the influence of the “new retributivism,” the prevailing rehabilitative paradigm began to collapse, along with the traditional practices of discretionary sentencing and parole.  In its place, we have witnessed the ascendance of determinate sentencing schemes, including strict mandatory minimum penalties for a broad array of offenses, most notably the distribution of illegal drugs.  However well intentioned, the rhetoric of retribution quickly degenerated into a crass endorsement of punitive incapacitation for its own sake, with little regard for what any particular offender actually deserves.  The result has been a burgeoning federal prison population of more than 200,000, coupled with thousands more ex-felons who labor under the burden of lifetime collateral disabilities.