The op ed below by CCRC Executive Director Margaret Love appeared in the Washington Post this afternoon. Love argues that focusing on the political message sent by the Arpaio pardon obscures a more fundamental problem with pardoning in today’s federal system: It has all but ceased to play the role the framers intended of advancing fairness and proportionality. She urges a reconnection with the true redemptive purposes of pardoning: to mitigate collateral consequences, recognize rehabilitation, and encourage reintegration. The recent preview of CCRC’s forthcoming study of state relief mechanisms shows that in at least a dozen states pardon continues to serve those purposes.
New clemency statistics just posted on the Pardon Attorney’s website show that almost 1000 petitions for full pardon were filed in FY 2016, and that more than 1900 pardon petitions are presently pending. We have become accustomed to seeing huge numbers of commutation filings, but the large number of pardon filings is much more surprising in light of President Obama’s meager pardon grant rate to date. The 998 petitions filed in the 12-month period just concluded are almost twice the number filed in any single year since the Roosevelt Administration, including in the analogous period in the Bush 43 presidency. We reported in August that there were 1378 pardon petitions pending in June – which means that 550 new petitions must have been filed in less than 4 months. That’s as many pardon petitions as have been filed in any full year in the past 75 years.
In August we reported on President Obama’s stated intention to grant a large number of full pardons before the end of his term, in addition to sentence commutations: “I would argue 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.” But to match even George W. Bush’s 189 pardon grants, President Obama will have to grant more than 120 pardons in the next three months.
White House Counsel Neil Eggleston stated yesterday that the number of commutation grants since 2014 “make clear that the President and his administration have succeeded in efforts to reinvigorate the clemency process.” But without action on the pardon side of the clemency docket it is too early to claim more than partial success.
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.
What (if anything) does the Virginia voting rights decision tell us about the president’s pardon power?
On July 22, 2016, the Virginia Supreme Court struck down a series of executive orders issued by Governor Terry McAuliffe restoring voting and other civil rights to more than 200,000 convicted individuals. See Howell v. McAuliffe (Va. 2016). The court, in a 4-to-3 decision, disputed the governor’s assertion that his restoration power was absolute under the state’s Constitution. “We respectfully disagree,” the majority justices wrote. “The clemency power may be broad, but it is not absolute.” Governor McAuliffe responded to the court’s action by promising to restore the vote on an individual basis to everyone affected by his orders, starting with the 13,000 who had already registered to vote. More details of the reaction to the court’s ruling are reported here.
The Virginia court’s decision is interesting for what it may tell us about the possibility of class-wide grants of clemency, whether full pardon or sentence commutation, under the president’s pardon power. In finding limits on the governor’s restoration power under the Virginia constitution, the court relied upon two other constitutional provisions that have no analogue in the U.S. Constitution.
UPDATE: Governor Matt Bevin rescinded Governor Beshear’s order on December 22, 2015, saying:
While I have been a vocal supporter of the restoration of rights, it is an issue that must be addressed through the legislature and by the will of the people.
Governor Bevins went on to sign a major felony expungement bill in April of 2016 that gives many with felony convictions the chance to restore their voting rights.
The outgoing Democratic governor of Kentucky has signed an executive order restoring the right to vote and hold public office to thousands of people convicted of non-violent felonies who have completed their sentences. The order from Gov. Steve Beshear — who leaves office next month — estimates that about 180,000 people in Kentucky have served their sentences yet remain disenfranchised. As a result of the order, 140,000 of those will become immediately eligible to register.
Before today, all convicted individuals were required to apply to regain their right to vote to the governor’s office, which approved restoration of voting rights on a case-by-case basis. The order does not restore rights to those convicted of specified violent crimes, sex offenses, bribery or treason, who will still have to apply for discretionary restoration.
“All of our society will be better off if we actively work to help rehabilitate those who have made a mistake,” Beshear said. “And the more we do that, the more the entire society will benefit.”
Yesterday President Obama participated in a panel discussion of criminal justice issues moderated by Bill Keller of The Marshall Project and streamed to the public. While the subject of clemency did not come up during the videotaped panel discussion, in a prior interview with Keller the President said that he intended to “speed up the process” of considering prisoner petitions seeking commutation of sentence. At the same time, he again signaled that he was not similarly interested in cases involving dated convictions where a petitioner is seeking pardon to relieve collateral consequences:
The Justice Department has decided to pursue its appeal of Judge John Gleeson’s May 21 order expunging the conviction of a woman who could not keep a job because of her criminal record. Its brief in U.S. v. Doe (Jane Doe I) can be accessed here.
Meanwhile, briefing is underway in Judge Gleeson’s second expungement case (Jane Doe II), in which he has also asked the parties and a “policy expert” to advise him on his authority to issue a “certificate of rehabilitation.” Judge Gleeson commented to the New York Times on the general problem of collateral consequences:
“As a society we really need to have a serious conversation on this subject of people with convictions’ never being able to work again,” Judge Gleeson wrote in an email. “A strong argument can be made that the answer to this problem should be more systemic, through legislation, not on a case-by-case basis in individual judges’ courtrooms.”
Petitioner’s brief in Jane Doe II is due on October 5, the brief of the “policy expert” is due on October 8, and argument has been scheduled for October 15. The government’s brief is here, and briefs of petitioner and amicus will be posted here when filed.
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.
The Guardian has published a detailed account of a case in the queue awaiting consideration by the President for commutation of sentence. Ray Bennett was convicted in 1991 of acting as a courier for a crack cocaine distributor, and sentenced to life in prison based on two prior state misdemeanors. “The judge who sentenced Bennett did his duty reluctantly, saying the drug runners were ‘just country folks’ and not the major traffickers that Congress likely had in mind.”
Bennett has now served more than 24 years in prison, has an exemplary record of conduct while incarcerated, and has long since conquered the addiction to drugs that led to his conviction. His clemency application was filed with the Pardon Attorney through Clemency Project 2014 in early April. We reprint substantial portions of the Guardian article to show the kinds of cases that may be acted on by the President in coming months.
This piece was originally published in The Crime Report on July 13, and republished in revised form on July 16.
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 his 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.