“After Trump: The Future of the President’s Pardon Power”
This is the title of the new issue of the Federal Sentencing Reporter, which is now available online. As explained by the FSR editors in the issue’s introduction, FSR is continuing its tradition of exploring each president’s pardoning practices at the end of their term:
This Issue of the Federal Sentencing Reporter shines a light on the state of clemency today, with an emphasis on the federal system and events of the Trump administration. This Issue thus continues an FSR tradition of exploring federal clemency practices under each president, starting in 2001 after President Bill Clinton created controversies with final-day pardons. Over the last twenty years, an array of commentators have analyzed the actions (and inactions) of four presidents, each of whom embraced quite different goals, perspectives, and strategies. In addition to bringing thoughtful new perspectives to recent events, the articles assembled today by guest editor Margaret Love, the indefatigable advocate, scholar, and former Pardon Attorney, offer a roadmap to, in her words, “restore legitimacy to the pardon power and its usefulness to the presidency.” The editors of FSR are — once again — deeply grateful for Ms. Love’s efforts and expertise.
I was honored that the editors again asked me to be guest editor of the pardon issue, which (along with a recent RAND study of racial bias in the pardon process) will hopefully provide useful guidance to the Biden Administration in a period when the uses of the power and its administration are being reconsidered. The abstract of my introductory essay follows:
The guest editor’s introduction aims to provide an overview of Donald Trump’s extraordinary record of pardoning, and a road map to the essays in the Issue. Together the essays discuss ways to restore legitimacy to the pardon power and increase its usefulness to the presidency, by limiting some of the pardon power’s most extreme uses; supplementing the pardon power with statutory mechanisms to reduce prison sentences and mitigate collateral consequences, so that the president is no longer personally responsible for so much routine criminal justice business; and, managing the pardon power in a way that serves the presidency and not the parochial interests of federal prosecutors.
All of these ideas and arguments together suggest that the way to restoring pardon’s democratic legitimacy and usefulness to the president lies in shrinking the portfolio of routine chores for which pardon is now exclusively responsible, and in restoring the independence and stature of the pardon advisory process within the Justice Department. It would be both fitting and deeply ironic if Donald Trump’s irregular and undemocratic pardoning led to a more coherent and meaningful use of the constitutional power in the service of an enlightened presidential policy agenda, to a renewed commitment to the historically close relationship between pardon and the justice system, and even to a transformation of the Justice Department’s unforgiving prosecutorial culture.
Here are the articles in this new FSR issue:
- “After Trump: Restoring Legitimacy to the Pardon Power” by Margaret Colgate Love
- “Transforming the Theater of Pardoning” by Bernadette Meyler
- “Donald Trump and the Clemency Process” by Matthew Gluck and Jack Goldsmith
- “Are Blanket Pardons Constitutional?” by Frank O. Bowman, III
- “Article II and the Pardon Power: Did the Framers Drop the Ball? by Daniel T. Kobil
- “War Crime Pardons and Presidential (Self-) Restraint” by Daniel Maurer
- Debevoise’s Holloway Project and “Second Looks”: How Challenging One Discrete Racial Inequity in Federal Criminal Justice Can Help Produce Systemic Change by John Gleeson
- Judicial Restoration of Rights as an Auxiliary to the Pardon Power by JaneAnne Murray
- Has the Time Come for Relief for Federal Convictions? by Gabriel J. Chin and David Schlussel
- The Office of the Pardon Attorney: What Comes Next? by Jeffrey Crouch
- Second Look = Second Chance: Turning the Tide through NACDL’s Model Second Look Legislation (NACDL report), by JaneAnne Murray et al.
- SBA proposes to remove criminal record restrictions in loan programs - September 18, 2023
- CCRC has a new Deputy Director! - August 10, 2022
- “After Trump: The Future of the President’s Pardon Power” - July 4, 2021
- Study reveals potential for racial bias in presidential pardon process - June 24, 2021
- DC’s non-conviction sealing law is uniquely complex and restrictive - March 30, 2021
- Study: Texas diversion provides dramatic benefits for people facing their first felony - February 23, 2021
- “A Plan to Restructure (and Revive) Pardoning After Trump” - February 20, 2021
- CCRC proposes a reintegration agenda for the 117th Congress - February 8, 2021
- Legislative Report Card: “The Reintegration Agenda During Pandemic” - January 25, 2021
- “The Reintegration Agenda During Pandemic: Criminal Record Reforms in 2020” - January 14, 2021