As President Trump’s irregular and self-serving pardons roll out, incoming President Biden has been urged to repair or replace the process for advising the president on the use of this extraordinary constitutional power.

It makes sense that critics have directed their ire and reform energies toward the mechanics of the pardon process, particularly since President Trump is on the record as disdaining it. But improvements in the process will not solve the problem laid bare by this president’s reckless pardoning. We should instead be asking more basic questions about what if any role the pardon power should play in the ordinary operation of the federal justice system. That system has asked far too much of pardon in recent years, and increased demand has played a major role in the power’s abuse. Congress needs to reroute many of pardon’s routine functions into the federal courts.

The Demise of Ordinary Pardoning 

Of course, increased demand is not the only thing that has led to abusive pardoning. As Bill Clinton learned to his sorrow, abuse has also followed from institutional hostility within the very agency responsible for housing the pardon process.

The system for administering the pardon power set up at the end of the 19^th century, which required pardon petitioners to make their case in the first instance to the Justice Department, was designed to avoid compromising the president or wasting his time.  It was also designed to ensure that the pardon power would be able to function as an integral part of the justice system.  Under policies approved by the president at the time, a case would be sent to the president for favorable action only after the Department’s pardon attorney had reviewed and recommended it.

What had been a functional symbiosis for more than a century broke down in the war on crime of the 1980s, and presidents could no longer count on the Justice Department’s role as gatekeeper and steward of their constitutional power.

So, while it is tempting to blame President Trump for sidelining a pardon process that has traditionally been seen as working for ordinary people, and for replacing it with one seen as favoring those with special influence, the Justice Department’s pardon process has been in trouble for many years.  The current White House workaround should come as no surprise to anyone who has watched its gradual slide into irrelevance since Ronald Reagan’s administration.  The key event that precipitated its decline was the attorney general’s delegation of responsibility for advising the president to subordinate officials. This all but guaranteed that the process would be taken hostage by the “tough on crime” views of federal prosecutors, who professed to have little regard for the very idea of pardons.

As pardon attorney during the administrations of George H.W. Bush and Bill Clinton, I was continually frustrated by the hostility of the prosecutors to whom I reported, who evidently feared that pardon would undo their hard work. In particular, they were unreceptive to suggestions that pardons could tell good news about their work by showcasing rehabilitation and redemption as goals of the criminal process. As a result, the Justice Department sent few favorable pardon recommendations to the White House.

At the end of his term, Clinton regretted having pardoned so little, and sought more favorable recommendations so that he could match President Reagan’s pardoning record. But by that time the Justice Department’s pardon program had been essentially shut down, with famously unfortunate results. The damage to the pardon program by Clinton’s endgame was not repaired during the next two presidencies, largely because of the Justice Department’s resistance to reform. The Department’s disregard for pardoning is evidenced by the fact that there has been no appointed pardon attorney during the entire Trump presidency.

This recent history reveals that the final rejection of the established pardon process by President Trump was only a matter of time. And the numbers do not lie. A review of docket entries of the Justice Department’s pardon office reveals that only two out of President Trump’s 49 most recent grants of pardon or commutation, and a total of seven out of the total 94 grants to date, were likely recommended through the ordinary operation of the official pardon process. While some of the remaining 87 grantees had petitions pending with the pardon office, various details—the facts set forth in White House press releases, the timing of the filings, the known relationships between the recipients and the administration—make it exceedingly unlikely that they would have been among those independently recommended by the pardon office.  All of the 87 appear to have been selected by the president to take full advantage of the theater that pardoning can provide.

The Road to Reform 

It is understandable that reforming the pardon process would be seen as a path to fortifying the power itself against future abuse. Most critics (including the editorial board of the New York Times) believe there is no alternative to stripping the Justice Department of its advisory responsibilities based on a supposed conflict of interest with its prosecutorial duties (a conflict that took over 100 years to emerge). A few believe the Department’s role is salvageable if the right person is put in charge. Some propose the appointment of an independent commission to advise on pardon matters, both to expand the role of pardon in the justice system and as a hedge against Justice Department obstructionism.

I believe this single-minded focus on how the pardon power is administered misses the mark.   Rather, we should be asking more basic questions about what (if any) role pardons should play in the ordinary operation of the federal justice system.

The core problem that has led to pardon’s abuse is that the legal system asks too much of it, with the result that too many people need and want what is and always has been a scarce resource. For people with federal convictions, the law makes pardon the exclusive remedy for shortening prison sentences, restoring lost rights, and certifying a convicted individual’s rehabilitation—functions that in most states are performed under statutory schemes. The law makes the president exclusively responsible—by way of the constitutional pardon power—for restoring the right to possess firearms and to qualify for many business and professional licenses after a federal conviction. Indeed, I have been told that applications for pardon to regain firearms rights may constitute nearly half the pardon caseload, which my own practice confirms. It is beyond absurd to make the president a one-man gun licensing bureau for people convicted of nonviolent federal crimes who just want to go hunting again.

Relying on pardon to temper the severity of the law might have been appropriate in a time when Congress issued private bills to grant relief to constituents, and courts relied on common law writs to enforce their orders. But a modern justice system cannot run efficiently or fairly on such antique and unreliable remedies, of which pardon is indisputably one.

I do not advocate curtailing the president’s pardon power, and the Biden administration can decide how it wishes to administer that power. I hope it will restore at least the appearance of fairness and regularity to the process (even if it will continue to function, as it always has, more or less like a lottery). But I also hope that reform of the pardon process can be accomplished without creating a new bureaucracy with all the trappings of the administrative state, with the elevated caseloads that would go with it.  It is folly to expect to harness unruly pardon—whose operation is by definition arbitrary—to compensate for failures in the legal system, or to manage the expectations of the thousands of supplicants who would doubtless be lined up with petitions in hand on the day the new agency’s doors opened.

The alternative to systematic reliance on pardoning is what the late Professor Dan Freed described twenty years ago as “the more demanding road toward democratic reform.”  The incoming administration should urge Congress to offload some of pardon’s exclusive functions onto the legal system by enacting robust statutory relief mechanisms, for those in prison and for those who have fully served their sentences, as a majority of states have done in recent years.  In other words, Congress should enact laws to reroute much of the business that currently comes into the pardon process into alternative channels, preferably the federal courts.

If the pardon process were not bogged down by thousands of petitions from people who simply want to regain the rights of citizenship (or perhaps to gain those rights for the first time), the president could use his constitutional power in a far more expansive and policy-oriented manner to encourage reform of the justice system, to counter its overreaches, and to tell good news about its operation.

Congress has already begun to reroute work that used to be done exclusively through the pardon power.  Federal courts were given authority two years ago in the First Step Act to consider petitions filed by federal prisoners to reduce their sentences in cases involving “extraordinary and compelling reasons.”  The Biden administration should ensure that this standard is given a broad interpretation, to enable courts to take account of such equitable circumstances as changes in the law and extraordinary rehabilitation. In addition, the incoming administration should work with Congress to give courts authority to issue certificates of restoration of rights that would have the same legal effect as a presidential pardon, as a bipartisan bill now pending in Congress could easily be amended to do.

The new administration should also take steps to enable people to regain firearms rights by application to an administrative agency or a court if they are no danger to public safety (though there is an emerging body of Second Amendment caselaw that may beat Congress to the punch).

Finally, Congress should expand opportunities in federal law to avoid saddling people with a conviction record in the first place. There is some interest in the House Judiciary Committee in revising an existing statute whereby courts could offer individuals charged with less serious offenses a deferred judgment, where satisfactory completion of a term of supervision leads to dismissal of the charges and expungement of the record.  The Business Roundtable has proposed a menu of law reforms to promote reintegration and second chances, which include amending this deferred adjudication statute.

In the end, President Trump’s abuse of his pardon power could be seen as a blessing in disguise if it provides the opportunity to wean the federal criminal justice system from its dependence upon presidential action for routine relief. Only if freed from its more workaday responsibilities can presidential pardon play the constructive role that the Framers intended.