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.
We cross-post a recent comment about the Obama clemency initiative from Professor Doug Berman’s Sentencing Law and Policy blog because it proposes to supplement the constitutional pardon power with a relief mechanism built into the legal system (there, a sentence reduction by the court rather than presidential commutation). It reflects the institutional and practical concerns of Enlightenment philosopher Cesare Beccaria, who proposed in 1764 that
Clemency is a virtue which belongs to the legislator, and not to the executor of the laws; a virtue which ought to shine in the code, and not in private judgment.
Beccaria’s view that clemency should “shine in the code” has a special resonance where collateral consequences are concerned since pardons have become so rare in recent years. Indeed, Judge John Gleeson might have invoked Beccaria when he expunged the conviction of a woman who was unable to find employment because of her criminal record. We intend to keep arguing in this space for a statutory restoration remedy for the federal system, whatever form it may take. Read more
USA Today reports that unexpected administrative complications continue to delay the clemency initiative launched by the Obama administration last year. More than a year after the Justice Department sought assistance from private organizations in identifying federal prisoners deserving of sentence commutation, that ancillary process has submitted only 31 cases for favorable presidential action. In light of the fact that more than 1500 volunteer lawyers have been working since last fall on cases assigned by Clemency Project 2014, this modest number is surprising.
Lawyers involved in the effort say the year-old clemency initiative has been hampered by the complexity of the cases and questions about the eligibility criteria, which may still be too strict to help most of the prison population.
The result is a system that appears even more backlogged than it was before the initiative began.
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?