Reforming Pardons: Time for a New Pardon Attorney?

The U.S. Constitution gives the president the power “to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment,” and at least several of the Founding Fathers thought that such a power was important to the usual and normal order of government. Laws tend naturally to severity because they cannot take into account circumstances. A government deriving its authority from the people, however, needs to have a built-in recognition that circumstances do sometimes matter, even if the law does not account for them. In the words of James Wilson , “Citizens, even condemned citizens, may be unfortunate in a higher degree, than that, in which they are criminal.” Taking this into account is one of the ways in which a government can make clear that law exists for the good of the people rather than the reverse.

President Obama has to date issued twenty-two pardons and one commutation of sentence. This is extraordinarily stingy. There was not a single pardon or commutation for the 2012 year, unless you count the Thanksgiving turkeys. The president has only issued pardons on three occasions. His clemency grant rates are extraordinarily low .

Much of the problem lies in the system itself, which is clumsy, slow, and excessively tied to the vagaries of the Office of the Pardon Attorney. The current (Bush-appointed) U.S. Pardon Attorney, Ronald L. Rodgers, has been reviewed by the Office of the Inspector General, which had some sharp things to say about him. There are accusations of severe racial disparities in the clemency process, which the DOJ is gearing up to investigate.

We are well beyond this just being a case of hardened criminals denied their applications. Most people who apply for pardon have already served their sentence, and are only applying in order to have certain rights restored. In many cases these were for minor felony cases long ago. Robert Lee Foster, one of the successful applicants during the Obama administration, was a Vietnam veteran and outstanding citizen who had spent decades not even realizing that he had a felony conviction on his record. He had mutilated coins when he was eighteen in order to fool vending machines into dispensing cigarette packs for two or three pennies rather than two or three dimes. Because he and the others who were caught with him were heading off to war, the judge just gave them probation and a small fine, which is why the young Foster hadn’t been aware that it went down on his record as a felony. He only discovered it when he tried to get a gun permit and found he couldn’t. Despite these circumstances, it still took years for his application to go through.

Other applicants are often sick prisoners who are applying in the hope of spending their last days with their families. This past November, shortly before President Obama “pardoned” the turkeys for Thanksgiving, Drayton Curry, who was ninety-two years old and a model prisoner, died in prison , having waited almost two years for the Office of the Pardon Attorney even to respond to his application.

Yet other applicants are applying to get their sentences adjusted to match the law. Because sentencing laws change from time to time, it’s common for there to be people in the system who are serving sentences much harsher than would be required under current law. Some of the more recent examples have come about from the Fair Sentencing Act of 2010, which changed the sentencing requirements for crack cocaine; Mark Osler discussed this recently in the Washington Times .

There are things that clearly need to be done to reform the system. Rodgers almost certainly needs to be removed as Pardon Attorney, and the president needs to push for faster application review times. One possibility for reform is to follow the lead of many states and established a board or commission to increase the efficiency of the pardon process. Whatever is done, however, it is clear that the pardon process needs reform.

Those who are interested in learning more about this subject might consider reading Margaret Colgate Love’s paper, The Twilight of the Pardon Power (PDF), or perusing the posts at P. S. Ruckman, Jr.’s Pardon Power blog, which keeps track of clemency processes at both federal and state levels.