Slate has posted a new piece by Leon Neyfakh entitled “The Pardon Process Is Broken.” The piece points out that “presidents are granting clemency far less often than they once did,” and asks “Why?” It answers its own question by distilling an article by Margaret Love to be published in the Toledo Law Review, which argues that the low grant rate reflects overwhelmingly negative recommendations from the Justice Department. In response to Slate’s invitation, Justice had the following comments on Love’s proposal:
The mission of the Department of Justice is to enforce the law and defend the interests of the United States according to the law; to ensure public safety against threats foreign and domestic; to provide federal leadership in preventing and controlling crime; to seek just punishment for those guilty of unlawful behavior; and to ensure fair and impartial administration of justice for all Americans. The work of the Office of the Pardon Attorney is an integral part of the Department’s mission.
These comments seem to concede the point that the Office of the Pardon Attorney has ceased to operate as an independent source of advice for the president in clemency matters, but instead has become an extension of the law enforcement agenda of the Department’s prosecutors. They evidence the key role the Justice Department has played in the atrophy of the constitutional pardon power.
Last week Sentencing Law & Policy highlighted a new article by CCRC director Margaret Love that examines the Justice Department’s historical role in administering the president’s pardon power. The article (“Justice Department Administration of the President’s Pardon Power: A Case Study in Institutional Conflict of Interest”) concludes that an institutional conflict of interest has made Justice a progressively less responsible and effective steward of the constitutional power, and urges the president to relocate the pardon program to the Executive Office of the President. The article, to be published in a forthcoming issue of the University of Toledo Law Review, can be downloaded here. Here is its abstract:
The president’s constitutional pardon power has been administered by the attorney general since before the Civil War, but this arrangement has never been adequately explained or justified. On its face it appears rife with conflict of institutional interests: how could the agency responsible for convicting people and putting them in prison also be tasked with forgiving them and setting them free? In spite of these apparently antithetical missions, the Justice Department managed the pardon program in a low-key and reliable manner for well over a century, staffing it with a handful of career lawyers operating on a shoestring budget, and churning out hundreds of favorable clemency recommendations each year for the president’s consideration. While there were occasionally controversial grants there were never scandalous ones, and the president was able to use his power to good effect in wartime and in peace.
It is only in the past two decades that questions have been raised about the integrity and functionality of the pardon process, focusing squarely on the agency and individuals standing as gatekeeper to the president’s power. President Obama’s decision in early 2014 to launch a large-scale clemency initiative, and the Justice Department’s unprecedented decision to rely upon a consortium of private organizations to manage it, make this a propitious time to consider whether the presidency is well-served by an arrangement making officials responsible for prosecuting crime the primary source of clemency advice.
This essay concludes that the culture and mission of the Justice Department have in recent years become determinedly and irreconcilably hostile to the beneficent purposes of the pardon power, and to its regular use by the president. The only way to deal with the institutional conflict that produced and perpetuates this situation is to transfer the pardon program to the president’s direct supervision in the Executive Office of the President. This move will have a variety of benefits, including facilitating the president’s ability to oversee the workings of the criminal justice system, for which he has a special responsibility under the Constitution. More specifically, it will introduce salutary political accountability to federal prosecutions through presidential oversight and potential revision. Finally, it will give the president control for the first time in decades over his own “benign prerogative.”