Yahoo News has published a piece by its chief investigative reporter Michael Isikoff commenting on how few pardons President Obama has granted, and how backed up the Justice Department’s pardon office seems to be. He illustrates the problem of presidential inaction with the case of Sala Udin, a Pittsburgh community activist and former City Council member, whose application for pardon of a 1970 firearms conviction has been awaiting decision for several years. Isikoff reports that while the President is likely to issue a number of sentence commutations this week, no pardons will be forthcoming. This leaves the 800 people whose pardon applications are pending in the Justice Department wondering whether there is hope for forgiveness during this president’s term.
What does it take to get a pardon from President Obama?
It’s a question Sala Udin, a former Pittsburgh City Council member and onetime civil rights Freedom Rider, is asking a lot this summer, more than three years after he first asked a president he deeply admires to grant him a pardon for a 44-year-old federal firearms conviction.
The Justice Department is urging lawyers for federal prisoners to move quickly to file clemency petitions for their clients, lest the clock run out before the end of the President’s term. U.S. Pardon Attorney Deborah Leff told volunteer lawyers in a video seminar last week that petitions not submitted until Obama’s final year may not be considered, at least by him. As reported by Greg Korte of USA Today, Leff suggested that lawyers might be spending too much time briefing cases, and she encouraged them to file even if they have not been able to obtain all documents.
“While I greatly admire your legal skills, this is not the time to prepare a treatise of hundreds of pages,” she told the lawyers.
We cross-post a recent comment about the Obama clemency initiative from Professor Doug Berman’s Sentencing Law and Policy blog because it proposes to supplement the constitutional pardon power with a relief mechanism built into the legal system (there, a sentence reduction by the court rather than presidential commutation). It reflects the institutional and practical concerns of Enlightenment philosopher Cesare Beccaria, who proposed in 1764 that
Clemency is a virtue which belongs to the legislator, and not to the executor of the laws; a virtue which ought to shine in the code, and not in private judgment.
Beccaria’s view that clemency should “shine in the code” has a special resonance where collateral consequences are concerned since pardons have become so rare in recent years. Indeed, Judge John Gleeson might have invoked Beccaria when he expunged the conviction of a woman who was unable to find employment because of her criminal record. We intend to keep arguing in this space for a statutory restoration remedy for the federal system, whatever form it may take. Read more
USA Today reports that unexpected administrative complications continue to delay the clemency initiative launched by the Obama administration last year. More than a year after the Justice Department sought assistance from private organizations in identifying federal prisoners deserving of sentence commutation, that ancillary process has submitted only 31 cases for favorable presidential action. In light of the fact that more than 1500 volunteer lawyers have been working since last fall on cases assigned by Clemency Project 2014, this modest number is surprising.
Lawyers involved in the effort say the year-old clemency initiative has been hampered by the complexity of the cases and questions about the eligibility criteria, which may still be too strict to help most of the prison population.
The result is a system that appears even more backlogged than it was before the initiative began.
USA Today has published a White House document detailing President Obama’s policy on granting clemency, including both sentence commutation and post-sentence pardons. In a memorandum dated July 13, 2010 to the Acting Deputy Attorney General, White House Counsel Robert Bauer “convey[ed] the President’s views” on the exercise of his constitutional pardon power, affirming traditional standards but emphasizing that there are “certain offenses for which a pardon should very rarely, if ever, be granted absent truly exceptional circumstances.” Among these were “large-scale drug trafficking” in which the applicant had “a significant role,” and financial fraud cases involving “substantial loss to the federal government or its programs.”
The memo affirmed the five-year eligibility waiting period for a pardon, overriding a 2001 policy of the Bush Administration (also published for the first time) that imposed an informal 10-year waiting period. At the same time, it emphasized that the passage of additional time may strengthen an applicant’s case for pardon: Read more
Delaware Governor Jack Markell has granted more than 1500 pardons in his six years in office, substantially more than any of his predecessors. According to articles by Chris Barrish and Jonathan Starkey in the Delaware News Journal, the “dramatic increase” in the number of people applying for pardon in Delaware has been “driven by getting jobs.” In defending his record of generous pardoning, Governor Markell noted that the state had adopted 50 new background check requirements for employment in the past several years, and that people with convictions need a governor’s pardon to enable them to overcome the stigma of conviction to obtain employment and stay on the road to rehabilitation. The two articles are here and here.
For the third time in six weeks, President Obama has spoken on the record about his intention to make more “aggressive” use of his pardon power in the final months of his term to commute long drug sentences. It appears he really means it — and the only thing that may stop him from setting a modern record (perhaps even more impressive than the drug commutations of John Kennedy and Lyndon Johnson) is the pace of recommendations coming from the Justice Department via Clemency Project 2014. (Comments on his other recent statements are here and here.)
Hopefully the President will grant more full pardons as well, though his comments on that score have been less encouraging.
During a Town Hall in South Carolina on March 6, President Obama spoke for the second time in recent weeks about his intention to use his pardon power more generously in the final two years of his term.
Responding to a criminal defense attorney who asked what she could do to “increase the number of federal pardons,” the President explained that he was taking a “new approach” to pardons after receiving surprisingly few favorable recommendations from the Justice Department during his first term. He said he had asked the Attorney General to “open up” the pardon process, and to work with advocacy groups and public defenders to make people more aware of the availability of this relief:
In a wide-ranging interview with Buzzfeed’s Ben Smith posted on February 11, President Obama was asked about the employment difficulties faced by young black men with a felony record. His response suggests that he may be interested in addressing through his pardon power the problems faced by people with federal convictions seeking restoration of rights and status, as he addressed them through law-making as a member of the Illinois legislature. This in turn suggests to us that the Justice Department may now be engaged, at the President’s direction, in a more proactive consideration of applications for a full presidential pardon. We post the exchange in full, so our readers can judge its import for themselves: Read more
On January 28, 2015, the Ohio Supreme Court settled an issue it has toyed with for several years, relating to the inherent power of courts to seal criminal records. In State v. Radcliff, a closely divided court held that judicial power to seal a conviction record, including the record of a conviction that has been pardoned, is limited by law. In Ohio, there is no statutory basis for sealing a pardoned conviction as there is in many (though not most) states. The majority evidently found this conclusion an unhappy one, lamenting that “until the General Assembly acts, we are left with the understanding that a pardon provides only forgiveness, not forgetfulness.”
“Only forgiveness.” Is pardon then such a second class prize? What makes an official determination of the recipient’s good character by the state’s highest elected official so much less attractive an option for mitigating the adverse consequences of conviction than pretending it never occurred? If the answer is that the American people are relentlessly unforgiving, we clearly have some national soul-searching to do.
As will come clear from the following discussion, I do not share the Radcliff majority’s evident belief that a pardon is worth little unless it results in a court expunging the record of the pardoned conviction (and presumably the pardon itself).