Category: Constitutional Law

Study reveals potential for racial bias in presidential pardon process

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.

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“A Plan to Restructure (and Revive) Pardoning After Trump”

The title of this post is the title of my second piece for Lawfare on the future of presidential pardoning after the unjust and irregular practices that characterized pardoning under President Trump.  In response to critics who urge that responsibility for pardon advice should be removed from the Justice Department, I argue for restoring the pardon program to its historic place as an independent and respected part of that agency, so it can be an effective counterweight to the punitive views of prosecutors that have in the past frustrated pardoning.  Reestablishing a functional institutional connection between the president’s power and the rest of the justice system will better serve both the presidency and the public interest in a more compassionate approach to criminal law enforcement. I suggest that Merrick Garland, whose Senate Judiciary Committee confirmation hearing to become attorney general begins on Monday, will understand how to reset the balance between pardon and justice to the benefit of both.

This is a follow-up to my Washington Post op ed, in which I argued that the presidential pardon power has been burdened with too many routine functions, and that the new administration should seek to restore a degree of practical efficiency to pardoning by working with Congress to reassign many of these functions to the courts — including shortening prison sentences and restoring lost rights.

The second piece is reprinted below:

A Plan to Restructure (and Revive) Pardoning After Trump

The overarching theme that emerges from four years of Donald Trump’s pardoning is an approach to government authority as transactional and personality based, rather than principled, structured, and process based. From the nation’s earliest days, unruly pardon has been harnessed to the rule-of-law virtues of the justice system, secured since the 19th century by its relationship to the Justice Department and by presidents respecting that relationship. Trump ostentatiously rejected that relationship from the start.

Trump not only detached the pardon power from the structure and operation of the justice system but he also used his power to challenge and frustrate that system. His pardons have been described by Bernadette Meyler as a throwback to the theatrical pardoning of the 17th century English kings and playwrights, enlarged and darkened by self-interest.

In the wake of Trump’s abusive and frequently haphazard pardoning, there have been calls to reform the process by which the president receives advice in pardon matters by stripping the Justice Department of its long-standing gatekeeper role. While reform of the pardon process is certainly in order, it would be a profound mistake to institutionalize Trump’s detachment of pardon from the justice system as these reformers urge.
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Are Trump’s Pardons a Blessing in Disguise?

The title of this post is the title of my piece in Lawfare arguing that, in response to President Trump’s reckless pardoning,  Congress should reroute many of pardon’s routine functions into the federal courts. The piece is reprinted below:

Are Trump’s Pardons a Blessing in Disguise?

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.

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“Trump’s Theater of Pardoning”

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

Introduction

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.

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“The Many Roads to Reintegration”: A 50-state report on laws restoring rights and opportunities

We are pleased to release a new report describing the present landscape of laws in the United States aimed at restoring rights and opportunities after an arrest or conviction. This report, titled The Many Roads to Reintegration, is an update and refresh of our previous national survey, last revised in 2018.

The report covers voting and firearms rights, an array of record relief remedies such as expungement and pardon, and consideration of criminal record in employment and occupational licensing.

In each section of the report we assign a grade to each state for each type of relief. We collate these grades to produce an overall ranking on the nine categories that we graded. That ranking is reproduced below.

We are encouraged by the amazing progress that has been made in the past few years toward neutralizing the effect of a criminal record since the present reform era got underway less than a decade ago. The last two years in particular have produced a bumper crop of new laws in almost every U.S. jurisdiction.

Some of our top performers have been long-time leaders in promoting reintegration, including Illinois, Utah, and Minnesota. But some of the most progressive lawmaking has come from states newer to the field, like Nevada, Colorado, and North Dakota. These and the other states in our Top Ten set an example that we hope will inspire other jurisdictions in the months and years to come.

The executive summary of the report is reprinted below. The full report is available in PDF and HTML formats.

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