The “president’s idle executive power” and collateral consequences

In their Washington Post op ed on the President’s neglect of his pardon power posted earlier on this site, Rachel Barkow and Mark Osler are critical of the Justice Department’s us-department-of-justice-squarelogobureaucratic process for processing applications for executive clemency, which they argue takes a very long time and yields very little.  (The New York Times editorialized last year in a similar vein about how DOJ has effectively sidelined the president’s power as a tool for justice for more than 20 years.)  Barkow and Osler ask why Justice considered it necessary or wise to farm out the processing of thousands of petitions from federal prisoners to a private consortium called Clemency Project 2014, rather than reform the official process:  “such a short-term program does nothing to fix the problematic regular clemency process that will survive this administration unless action is taken.”

Barkow and Osler focus on sentence commutations, and not on the other common type of clemency grant: a full pardon, typically sought by those who have fully served their court-imposed sentences, to avoid or mitigate collateral consequences.  In addition to the thousands of prisoner petitions awaiting consideration by DOJ’s Pardon Attorney, there are now more than 800 petitions for full pardon pending in the Justice Department.  Most of these petitions were filed by individuals who completed their court-imposed sentences long ago but remain burdened by legal restrictions and social stigma.  A majority of the pending petitions were filed years ago and have long since been fully investigated.  What can be holding things up?

Among the hundreds of pending petitions is one filed almost five years ago by Nigerian national Chibueze Okorie, who for the past 20 years has managed the prison ministry program at the Church of Gethsemane in Park Slope, Brooklyn.  Shortly after arriving in this country in 1989, Okorie was caught chauffeuring a heroin dealer in his taxi and went to federal prison for 18 months.  The New York Times reported in 2005 that Okorie “found God while serving okorie-chibuezehis time and dedicated his life to helping current and former prisoners and their families.” Okorie is seeking a pardon of his only conviction to enable him to become a U.S. citizen, and his case for clemency has substantial support from members of the community and local politicians. His first petition was denied in 2008 by President George W. Bush, despite a racially-tainted DOJ recommendation that ultimately cost the then-Pardon Attorney his job.  An FBI investigation of Okorie’s current pardon application was completed several years ago, but no action has yet been taken on it by the President.  (I assisted Mr. Okorie in filing his second petition in 2010, and continue to represent him.)

While Mr. Okorie and others like him wait, President Obama has issued no pardons for almost a year.  In fact, in his six years in office Obama has issued fewer pardons than any full-term president in history, despite his administration’s claimed support for reentry and restoration of rights.  There has also been no apparent effort by the Justice Department to develop a statutory substitute for pardon that would address the problem of collateral consequences for federal offenders without the necessity of presidential intervention. The federal government lags well behind many states in addressing issues of restoration of rights and status, as an NACDL report earlier this year documented.

Two successive presidents have been embarrassed at the end of their terms by DOJ’s sluggish administration of the pardon power, which prompted end-runs around the regular process by hundreds of well-connected favor-seekers, and resulted in scandal for Bill Clinton and “frustration” and “disgust” for George W. Bush.  Will Obama permit DOJ a hat trick?  It is high time someone in the White House took an interest in what is going on in DOJ with the pardon caseload before it is too late.

Read more about this topic:

The New York Times: The Quality of Mercy Strained

The Washington Post: Obama neglects his power to pardon

George Lardner: Obama’s pardon power is underutilized

Samuel T. Morison:  A no-pardon Justice Department 


Margaret Love

Margaret Love is CCRC's Executive Director. A former U.S. Pardon Attorney, she represents applicants for executive clemency in her private practice in Washington, D.C.. She is lead co-author of Collateral Consequences of Criminal Conviction: Law, Policy, and Practice (4th ed. 2021), and served as an advisor to the ALI Model Penal Code: Sentencing.

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