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.
As many commentators have noticed, the prevalence of determinate sentencing has not eliminated the exercise of discretion, but merely shifted the balance of power from judges and juries to prosecutors. Not surprisingly, the Justice Department also sought to control the pardon power, the last remaining bastion of unfettered discretion in the criminal justice system.
This was possible because the hornbook account of the pardon power as a nearly absolute prerogative of the President is actually a bit misleading. In fact, the President’s immediate legal staff does not have the resources to properly evaluate the hundreds of clemency cases that are filed annually. Instead, by longstanding practice, the President has delegated this responsibility to career officials in the Justice Department’s Office of the Pardon Attorney. Pursuant to rules promulgated by the President, clemency applicants are required to submit their petitions to the pardon office, which, in turn, exercises firm control over the flow of information to the White House.
Having served as a staff attorney in the pardon office for more than a decade, I can say with some confidence that the office does not view its role as a neutral arbiter. Instead, it exploits the asymmetry of information to protect the Department’s institutional prerogatives, churning out a steady stream of almost uniformly negative advice, regardless of the merits of any particular case. In effect, this amounts to little more than an effort to restrain (rather than inform) the President’s exercise of discretion. The implicit message is clear: you will either do as we suggest, Mr. President, or you’re on your own.
It is a singularly efficient system. Generally speaking, the President feels compelled to adhere to the Department’s advice, even while privately chaffing at the bit. The numbers speak for themselves. During the Bush Administration, the pardon office received approximately 11,000 clemency petitions. President Bush granted 189 pardons and 11 commutations, which is fewer grants than any two-term president since Thomas Jefferson. He also denied a record number of cases, about 1,700 pardon and 7,500 commutation requests, leaving the remainder for his successor. Although it has been reported that the White House repeatedly sought more favorable recommendations, the Justice Department refused and President Bush did exactly as he was advised in all but a few cases. In this way, he arguably ceded control over the clemency power to prosecutors in the Justice Department.
To compound matters, as revealed in last Sunday’s Washington Post, President Bush did not know that the clemency advice rendered by the pardon office was infected with an implicit racial bias. Remarkably, according to a statistically rigorous study of previously unavailable data conducted by ProPublica, black applicants are four times less likely to receive a pardon than similarly-situated white applicants, even after controlling for a variety of relevant variables, including age, gender, marital status, offense, and sentence. This is an astonishing finding. While the Attorney General has spoken with some eloquence about the need to revitalize the mission of the Civil Rights Division, he should perhaps begin by putting the Department’s own practices in order.
Tellingly, the Department was given advance notice of the ProPublica study, but made no effort to take issue with the validity of the analysis prior to its publication. Instead, it merely issued a statement asserting that controlling for such “objective” factors fails to capture the “subjective” element in the evaluation of a clemency application, such as “an applicant’s candor and level of remorse,” or their perceived “attitude” or “stability.” But this is hardly a convincing reply, because it seems to concede that the “subjective” evaluation of applications by the pardon office accounts for the dramatic racial disparity reflected in the data, which is precisely the point of the study.
The White House’s response to the story is also unpersuasive, albeit for a different reason. The Counsel’s Office insists that the President’s evaluation of pardon cases “does not consider the race of the applicants,” and that the White House doesn’t “even receive information on the race of applicants.” This is undoubtedly true, but is nevertheless a non-sequitur, because the authors of the advice are aware of the race of each applicant. The fact that the President is kept in the dark makes the situation worse, not better.
The fundamental issue is this: who will exercise effective control over this broad discretionary power, the President or a small cadre of anonymous bureaucrats in the Justice Department? Historically, the pardon advisory function has been housed in the Department entirely as a matter of administrative convenience, pursuant to the President’s authority under the Pardon Clause. Whatever utility this arrangement once had, the structural deficiencies in the existing advisory system have rendered it dysfunctional. Under the circumstances, I submit that the President has a constitutional obligation to remove the advisory role from the Justice Department, and reconstitute it within the Executive Office of the President, where it can operate without the burden of an entrenched conflict of interest.