The Collateral Consequences Resource Center is pleased to announce a series of online panels on successive Tuesdays in September, starting on September 14, that will explore in depth the use of the pardon power by President Donald Trump, and how it both reflects recent trends in pardoning and is likely to influence pardoning in the future.
The first panel, on September 14, will discuss Trump’s abandonment of the bureaucratic tradition in pardoning and what this reveals both about his concept of office and about the nature of the constitutional power. The second panel, on September 21, will consider whether Trump’s pardons may prompt much-needed reforms in sentencing law and practice. The third panel, on September 28, will consider possible changes in how the pardon power is administered resulting from its idiosyncratic use by President Trump, and whether the Justice Department should remain responsible for advising the president in pardon matters.
Starting a small business is increasingly recognized as a pathway to opportunity for individuals with an arrest or conviction history—particularly given the disadvantages they face in the labor market. An estimated 4% of small businesses in the United States have an owner with a conviction (1.5% have a felony conviction). Small businesses provide “a vital opportunity for those with a criminal record to contribute to society, to earn an honest profit, and to give back to others.” They also frequently employ people with a record and help reduce recidivism. A growing number of organizations and government programs are devoted to supporting individuals with a record in building their own businesses.
Yet many structural barriers remain, including a series of little-known federal regulations and policies that impose broad criminal history restrictions on access to government-sponsored business loans, notably by the U.S. Small Business Administration (SBA). A recent article illustrates the steep challenges faced by business owners with a record by telling the stories of several entrepreneurs who were either denied an SBA loan or were discouraged from even trying for one because of a dated felony conviction. One of those entrepreneurs comments: “You might do five years, ten years, one year, but you pay for it until you’re in the grave.”
To illuminate and help reduce these barriers, our organization is working to develop a new “Fair Chance Lending” project. We hope to show that—rather than broadly exclude individuals with a criminal history—officials should draw record-based restrictions as narrowly as feasible, facilitate access to resources, and celebrate entrepreneurial efforts, consistent with growing national support for reintegration and fair chances in civil society.
The piece reprinted below is the first part of Bernadette Meyler’s contribution to a Symposium published by the Stanford Law Review on her book Theaters of Pardoning. It is as cogent a guide to understanding President Trump’s pardoning practices, and how they differ from those of his predecessors, as anything else we have seen. If, as Prof. Meyler argues, the message sent by Trump’s pardons is “the rejection of law,” it would be ironic (though entirely welcome) if they prompted Congress to reroute into the legal system much of the business heretofore committed exclusively to presidential pardoning, notably relief from the collateral consequences of a federal conviction. Then presidents could pardon to their heart’s delight, without worrying about the inherent unfairness of their actions.
“Trump’s Theater of Pardoning”
by Bernadette Meyler
In many ways, President Trump has returned to a performance of pardoning more familiar to early modern England than to contemporary America. Largely eschewing bureaucratic processes, Trump has taken advantage of the political theater that pardoning can provide. Like some of the real-life and fictional kings who appear in my book, Theaters of Pardoning, Trump has also called law and legal regimes into question through his pardons, and, in doing so, asserted his own impunity from law. Ignoring the common law restrictions that had accreted around pardoning, Trump has chosen to interpret his power as absolute, unfettered by norms like refraining from judging in one’s own case and forgiving but not forgetting. And this is only the story of Trump’s formal pardons. As Kenji Yoshino’s essay in this Symposium elaborates, Trump’s numerous revisions of history represent even more pervasive efforts at enacting amnesty and oblivion.
The op ed below by CCRC Executive Director Margaret Love appeared in the Washington Post this afternoon. Love argues that focusing on the political message sent by the Arpaio pardon obscures a more fundamental problem with pardoning in today’s federal system: It has all but ceased to play the role the framers intended of advancing fairness and proportionality. She urges a reconnection with the true redemptive purposes of pardoning: to mitigate collateral consequences, recognize rehabilitation, and encourage reintegration. The recent preview of CCRC’s forthcoming study of state relief mechanisms shows that in at least a dozen states pardon continues to serve those purposes.