Prez promises to catch up on pardons — but he’s far behind
We have wondered whether President Obama would ever turn his attention to what has become the red-headed stepchild of the clemency caseload: full pardons to restore rights and status after service of sentence. To date President Obama has focused on commuting prison sentences, and has issued fewer pardons than any full-term president since the Civil War. It appears that the time may be at hand.
The Politico reported on Thursday that at a press conference the day after his most recent batch of sentence commutations, President Obama said he intended to grant more full pardons before the end of his term – a lot more.
At a news conference at the Pentagon on Thursday, a reporter [Greg Korte of USA Today] noted that Obama has been the stingiest two-term president on forgiveness since John Adams. Obama acknowledged that his administration has “focused more on commutations than we have on pardons.” “I would argue,” he continued, “that by the time I leave office, the number of pardons that we grant will be roughly in line with what other presidents have done.”
The President also indicated that he did not intend to change his pardoning practices at the end of his term: “The process that I’ve put in place is not going to vary depending on how close I get to the election.”
President Obama will no doubt grant more full pardons before the end of his term, in addition to more commutations. But it will be a tall order for him to match his predecessors even “roughly” in absolute number of pardons. For example, George W. Bush granted 189 pardons, Bill Clinton granted 396, and Ronald Reagan granted 393. Jimmy Carter and Gerald Ford granted 593 and 382 full pardons, respectively. By contrast, after seven and a half years Obama has granted a total of only 66 full pardons (not counting the four pre-conviction pardons granted to Iranians prior in last year’s foreign policy “swap”). Only George H.W. Bush had issued fewer grants nearing the end of his tenure — and to be fair he served only one term and received far fewer applications.
As of the beginning of June there were 1378 applications for full pardon awaiting President Obama’s action (in addition to more than 12,000 applications for commutation of sentence). He has granted only two full post-sentence pardons in the past 30 months, both in December 2014. If he is serious about wanting to match his predecessors in number of pardon grants, and not wanting to bunch grants at the end of his term, he had better get started on his pardoning regime soon.
The absolute number of applications for full pardon filed under President Obama has been higher than in any Administration since FDR, when more than 30% of pardon applications were granted. By contrast, the percentage of pardon requests granted by President Obama to date has been about 2.5%. This has meant that people with federal convictions have had little hope of avoiding or mitigating collateral consequences.
Steve Nelson reported on the President’s ambitious undertaking in U.S. News (“Obama Says He Will Catch Up on Pardons, But He’s Far Behind”):
President Barack Obama said Thursday he intends to issue about as many pardons as his predecessors by the time he leaves office in January. But Obama has a long way to go – to date he’s pardoned fewer people than any president since James Garfield, who was fatally shot in 1881 after less than three months in office. . . . .
“It concerns me that this really important part of the clemency caseload has been so neglected,” says Margaret Love, who served as the U.S. pardon attorney from 1990 to 1997 under Presidents George H.W. Bush and Bill Clinton.
“It’s bad enough that the president is the only way to go for people who have served their sentence and are seeking relief from collateral consequences and restoration of their rights,” she told U.S. News shortly before the president’s news conference. “But when the president says ‘the door is closed, I’m not home for you,’ that’s very troublesome. I’m not sure he appreciates that that in effect is what he’s said.”
. . . . The possible explanations for Obama’s stingy pardon-giving vary, but it’s a frustration for Love’s clients seeking a sense of forgiveness before they die or the ability to become U.S. citizens despite minor and decades-old convictions.
One possible reason for the president’s inaction is caution inspired by recent history. Obama noted this Thursday, saying clemency “is politically risky” and that “everyone remembers that Willie Horton ad” that was used to attack 1988 Democratic presidential nominee Michael Dukakis. He said advisers “earlier in my presidency” advised him to be cautious.
Abner Mikva, Clinton’s third White House counsel, said he spoke with Obama even before he took office and recalled “a lengthy discussion about Marc Rich,” the wealthy fugitive and Democratic donor who Clinton controversially pardoned in his final days in office.
“I think he was very, very dismayed by the Marc Rich pardon … [and] how even a good president can be corrupted by the pardons process,” Mikva said.
A second possible explanation is the deluge of petitions coming into the pardon office after the Justice Department in 2014 announced its Clemency Initiative for nonviolent offenders whose crimes today would receive shorter sentences. Obama gave indication this, too, could be a contributing factor, mentioning financial constraints.
This explanation is supported by the resignation letter of Deborah Leff, who left her post as U.S. pardon attorney in January, saying there was insufficient staffing to handle a flood of petitions, meaning “thousands of petitioners seeking justice will lie unheard.”
Leff wrote that because of the influx, “I have been instructed to set aside thousands of petitions for pardon and traditional commutation.”
A third possible explanation is offered by Love: that pardon requests are, without correction from Obama, being unnecessarily slowed by Justice Department prosecutors who also could alleviate clemency system burdens by going to court to shorten sentences.
The former pardon attorney says the Justice Department – whose deputy attorney general reviews pardon attorney decisions before they are sent to the White House – could seek to use a statute known for allowing “compassionate release” of prisoners to shorten unreasonably long sentences. The law allows reductions if there are “extraordinary and compelling reasons.”
“It doesn’t make sense to try to deal with a systemic problem affecting thousands of people through the clemency power. Some solution through the courts has got to be found,” she says. “Even if the president does another thousand of these [commutation] cases, there still will be many left behind.” . . .
Love says she would not recommend that Obama do last-minute research on Google to find prisoners worthy of a pardon, as he needs to insulate himself from controversies such as those faced by Clinton and instead go with vetted cases in moderately sized batches. . . .
Love also says a long-term fix is necessary and that states may offer a good model for reform, with laws being passed that mitigate collateral consequences of conviction. She views Delaware as a model, where regular public meetings are held to address pardons.
“George W. did whatever the department sent to him. He ate his spinach and he ate it promptly. And occasionally he would ask why he wasn’t getting more,” she says. “All [Obama] needs to say is, ‘I want to do some pardons’.”
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