Can the pardon power be revived through procedural reforms?

Mark Osler has posted a new piece arguing for an overhaul of the federal pardon process so that it more closely resembles efficient and productive state clemency systems. He argues that flaws in the process for administering the power, rather than a failure of executive will, have prevented President Obama from carrying out his ambitious clemency agenda directed atlong-sentenced drug offenders.  Streamlining the process will enable presidents to use the power more generously and effectively.

This seems to us to an oversimplified solution to the theoretical and practical problems with what President Obama has been trying to do. Moreover, at least in the absence of constitutional amendment, any structural changes in the federal pardon process would have to be reaffirmed by each new president, and would likely be opposed by the Justice Department and Congress.

An alternative to trying to revive pardon as an integral part of the criminal justice system would be to concede that pardon cannot wholly compensate for shortcomings in the legal system, and work to develop statutory alternatives. Our preference would be for this alternative, and specifically to enlist the courts to shorten long prison sentences and avoid or mitigate collateral consequences. This is the approach proposed in the revised articles of the Model Penal Code: Sentencing.

As President Obama’s term winds down, we expect to post additional commentary on his use of the pardon power, and on proposals floated by his putative successors about the pressing systemic problems for which pardon is now seen as the sole solution.  In the meantime, see these earlier posts on this subject: