Slate asks why presidents are granting less clemency; Justice answers

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.

A further examination of Justice Department clemency statistics since the 1930’s reveals an even more dramatic decline in favorable Justice Department recommendations in the past 25 years than is reported in the draft of Love’s article posted here 10 days ago. Between 1932 and 1988 the percentage of total cases acted on by the president that had been sent to him with the Justice Department’s blessing averaged around 30%.  The percentage of cases sent forward with a favorable recommendation dropped to single digits beginning with the presidency of George H.W. Bush, and it has dropped even lower in the past 15 years.  Under President Obama, the likely paucity of favorable recommendations from Justice has resulted in the lowest grant rate to date:  President Obama has made a total of 153 grants (89 commutations and 64 full pardons) while denying almost 9000 applications, for an overall grant rate of 1.6%.

The absolute numbers also tell a tale: President Obama has granted more sentence commutations than any president since Richard Nixon, but fewer full pardons than any president since John Adams.  Pardon is the only clearly established way for federal offenders to avoid or mitigate collateral consequences.

If Justice is unwilling to recommend pardons to the President, might it direct federal offenders to an alternative source of relief from collateral consequences?  That also does not appear to be in the cards: in a case currently pending before Judge John Gleeson in the Eastern District of New York, Justice has taken the position that a federal court has no authority to expunge a conviction or issue a certificate of rehabilitation.

It remains to be seen whether Justice will recommend more pardons to the White House or, better yet, support legislative efforts to give courts the power to dispense with collateral consequences that it now finds lacking.