In Defense of Pardons
That's the title of an OpEd in today's Washington Post by Margaret Colgate Love, a clemency specialist and former U.S. Pardon Attorney in the Department of Justice. LINK Here's an extended excerpt from this must-read essay:
As President Bush's term nears its end, rumors abound that he will grant a lot of final pardons. Hundreds of clemency applications have been filed with the Justice Department in the past year, a reflection of the popular belief that pardoning is an end-of-term phenomenon in which all presidents indulge. Media reports have identified prominent individuals who are seeking Bush's mercy, and there is speculation about a blanket amnesty for those engaged in counterterrorism efforts.
Yet presidential pardons have rarely been concentrated in the weeks between Election Day and the inauguration of a new president. There was no precedent for the torrent of irregular grants issued by Bill Clinton on his last day in office, many of which were the product of special pleading by Clinton friends and family.
Historically, pardoning has occurred regularly over the course of a president's term, more frequently in the middle than at either end. The attorney general, custodian of the president's pardon power since before the Civil War, is responsible for ensuring that the process is accessible and disciplined, and that grants are defensible on their merits. The president rarely acts except pursuant to a Justice Department recommendation, which helps ensure that pardons are consistent with his criminal justice agenda.
Bush has kept a low profile in exercising his pardon power. Though a record number of people have applied for pardons and sentence commutations during his presidency, he has issued fewer grants than any other president in the past 100 years -- except for his father.
Bush's 157 pardons say little about his criminal justice philosophy. Most have gone to people convicted long ago of minor offenses, who spent little or no time in prison, and who are unknown outside of their communities. Five of his six sentence commutations went to small-time drug offenders who had spent years in prison and were close to their release dates.
Meanwhile, Bush has denied almost 8,000 clemency requests, many of which were indistinguishable from the ones he granted. Only his decision to spare Scooter Libby a prison term attracted much attention.
So if Bush's record suggests that he is unlikely to make a lot of interesting last-minute grants, why should we hope that he does?
The pardon power is more functionally relevant to the federal justice system today than it has been since the 19th century. That is, more people want and need what only the pardon power can deliver.
History teaches that the demand for clemency increases when the system lacks other mechanisms for delivering individualized justice, for recognizing changed circumstances, or for correcting errors and inequities. The Sentencing Reform Act of 1984 made the pardon power virtually the only mechanism by which lengthy mandatory prison sentences can be reconsidered once they have become final. Supreme Court Justice Anthony Kennedy, the author of opinions upholding harsh sentencing laws, urged in a 2003 speech to the American Bar Association that the pardon process be "reinvigorated" in response to "unwise and unjust" federal sentencing laws; "a people confident in its laws and institutions should not be ashamed of mercy," he said.
StandDown's clemency index is here. It's also a good time to point out PolSci prof P.S. Ruckman's Pardon Power blog. Other related StandDown post include:
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