Last week the RAND Corporation published its long-awaited Statistical Analysis of Presidential Pardons, commissioned in 2012 by the Bureau of Justice Statistics to determine whether the Justice Department process for deciding who to recommend for a presidential pardon is tainted with “systematic” racial bias. The RAND study appears to have been a direct response to an investigative report published jointly in December 2011 by ProPublica and the Washington Post, which concluded based on an examination of pardon cases granted and denied during the administration of George W. Bush, that race was “one of the strongest predictors of a pardon.”
Specifically, the ProPublica study concluded that “White criminals seeking presidential pardons over the past decade have been nearly four times as likely to succeed as minorities” while “Blacks have had the poorest chance” of receiving a pardon.
In a 224-page statistical analysis of how pardon petitions were evaluated by the Office of the Pardon Attorney (OPA) between 2001 and 2012, the RAND researchers “[did] not find statistically significant evidence that there are racial differences in the rates at which black and white petitioners receive [favorable] pardon recommendations.” (Note that sentence commutations were not a part of the RAND study.) At the same time, there was also “no question that non-Hispanic white petitioners as a group were more likely to receive a pardon than did black petitioners.”
The apparent contradiction between these two statements can be explained by the fact that white applicants were statistically more likely to satisfy the formal standards that apply to OPA decisions about which cases to recommend for pardon, suggesting that either the formal standards need revision or the pool of applicants needs to be expanded, or both.
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: Read more
In their Washington Post op ed on the President’s neglect of his pardon power posted earlier on this site, Rachel Barkow and Mark Osler are critical of the Justice Department’s bureaucratic process for processing applications for executive clemency, which they argue takes a very long time and yields very little. (The New York Times editorialized last year in a similar vein about how DOJ has effectively sidelined the president’s power as a tool for justice for more than 20 years.) Barkow and Osler ask why Justice considered it necessary or wise to farm out the processing of thousands of petitions from federal prisoners to a private consortium called Clemency Project 2014, rather than reform the official process: “such a short-term program does nothing to fix the problematic regular clemency process that will survive this administration unless action is taken.”
Barkow and Osler focus on sentence commutations, and not on the other common type of clemency grant: a full pardon, typically sought by those who have fully served their court-imposed sentences, to avoid or mitigate collateral consequences. In addition to the thousands of prisoner petitions awaiting consideration by DOJ’s Pardon Attorney, there are now more than 800 petitions for full pardon pending in the Justice Department. Most of these petitions were filed by individuals who completed their court-imposed sentences long ago but remain burdened by legal restrictions and social stigma. A majority of the pending petitions were filed years ago and have long since been fully investigated. What can be holding things up?
This week’s New Yorker features an article by Ryan Lizza about potential democratic candidates. One, James Webb, former U.S. Senator from Virginia, has a history of interest in prisons and reentry of people with convictions. The article states:
“In the Senate, he pushed for creating a national commission that would study the American prison system, and he convened hearings on the economic consequences of mass incarceration. He says he even hired three staffers who had criminal records. ‘If you have been in prison, God help you if you want to really rebuild your life,’ Webb told me. ‘We’ve got seven million people somehow involved in the system right now, and they need a structured way to reënter society and be productive again.’ He didn’t mention it, but he is aware that the prison population in the U.S. exploded after the Clinton Administration signed tough new sentencing laws.”
Of course, reentry is not necessarily a partisan issue; President George W. Bush also cared about it, calling America “the land of second chance” in his 2004 State of the Union address, and signing into law the Second Chance Act. It will be interesting to see if prison spending and reentry become issues in the primaries or the general election.