Leaked White House memos detail president’s pardon policy

May 4, 2015 CCRC Staff

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:

The recentness of the offense should be evaluated in the context of the entire application, including the offense’s seriousness, The President believes, however, that where more time has passed since conviction or release, applications will tend to be stronger, in part because the extended time period provides a greater opportunity for the applicant to establish exemplary post-conviction conduct and demonstrate true acceptance of responsibility, remorse and atonement.

In fact, the USA Today article points out that only five of Obama’s 64 pardons were granted within 15 years of an individual’s eligibility. With respect to commutations, the memo expresses a policy of parsimony:

The President agrees with the Department’s view that a commutation of sentence is an extraordinary remedy that should be granted only in extraordinary circumstances. The President further believes that the guidance governing offenses for which there should be a presumption against pardons applies with even greater force to applications for commutation.

The USA Today article notes apparent inconsistencies between the 2010 Bauer memo and the President’s more recent comments about what he is seeking from Justice in terms of clemency recommendations. It remains to be seen how these comments will play out in the months ahead, and in particular whether he will grant more commutations while post-sentence pardons remain at an all-time low.