Begging Your Pardon, President Obama!

White House turns back on clemency, including reduced sentences

Barack Obama's election in 2008 caused a jump in the number of requests for pardons and commuted sentences, perhaps fueled by assumptions that a Democrat would be more predisposed to rule favorably on these petitions. Right around his election, the number of clemency requests jumped to more than 2,600.

The conventional wisdom is that presidents don't want to grant clemency for fear of appearing soft on crime. Indeed, Obama has had a rough presidency in other ways, too, what with two wars and an enduring economic meltdown. With a bruising re-election campaign fast approaching and his approval rating falling, perhaps his advisers are telling him that using his pardon power will only damage his chances.

Meanwhile, Obama's attorney general, Eric Holder, was burned in the Clinton-era pardon scandals and thus might be a little clemency-averse himself.

Benjamin Share’s daughter calls him ‘a broken old man.’
Courtesy Linda Share
Benjamin Share’s daughter calls him ‘a broken old man.’
Peter Stanham, with his wife, even has the sentencing judge on his side.
Courtesy Nicholas Stanham
Peter Stanham, with his wife, even has the sentencing judge on his side.

"With Obama, I think it comes down to Eric Holder," Ruckman says. "I don't think he has a serious interest in clemency policy, so I don't think clemency policy is a serious concern in this administration."

In the Clinton era, Holder infamously overruled his pardon attorney and backed pardons for Rich, a fugitive financier who made illegal oil deals with Iran during the hostage crisis, and a group of Puerto Rican terrorists, the Fuerzas Armadas de Liberación Nacional, who conducted dozens of bomb attacks in the U.S. in the 1970s and early 1980s. Both issues dogged Holder during his confirmation hearings. ("Why would he recommend clemency for unrepentant terrorists?" one senator asked.)

But some observers think that presidential politics actually has little to do with why Obama has issued so few pardons and no sentence reductions. Staffing isn't so much of an issue, either—the number of people working in the Justice Department office, which reviews pardon and clemency requests, has changed little in more than five years.

Instead, they say, it's more a function of the arcane internal activities of the Justice Department: more policy than politics.

"Obama has effectively ceded control over the pardon program to career bureaucrats in the Justice Department, who merely parrot the views of line prosecutors," a former Justice Department official says.

In essence, these critics say, justice has dismantled the administrative functions of the pardon office, which is supposed to investigate the petitions filed by prisoners. As a result, all those carefully prepared requests for clemency aren't getting the kind of review they deserve.

Instead, a lot of petitions get a cursory review and are shipped off to the White House in minimalist lumps known as "summary group reports," which don't provide enough information to allow the president to make an informed choice.

The major change since 2008, when the current pardon attorney, Ronald Rodgers, took over, this former official says, is that the few early releases, or "commutations," done in the past have disappeared entirely.

"Virtually all commutations are simply round-filed as soon as they hit the door," the former justice official says. "They are no longer assigned to staff lawyers, and in all but a tiny handful of cases, no report or recommendation is forwarded to the White House."

Rather, the White House just gets a list of names and a memo saying that each case is without merit. In other words, the president has no idea what's behind each case.

"With that kind of 'advice,' the president has little choice but to deny the cases or risk granting commutations to people he knows nothing about," says the former justice official. "Justice knows this and cynically exploits the flow of information to achieve the desired result."

Indeed, adds former U.S. pardon attorney Margaret Colgate Love, "the president is getting a name on a piece of paper and very little more. What kind of decision can he make from that? And yet, that's what the pardon attorney is delivering."

Love, who ran the Justice Department's executive clemency program from 1990 to 1997, represents Stanham and Benjamin Share, among others seeking clemency. From her perspective, the policy change in justice began almost 20 years ago with the victory of the view that prosecutors who had handled the original cases shouldn't now be second-guessed.

Peter Stanham's plea for mercy has the support of both the prosecutor and judge in his case. But that example aside, Love argues that the most important negative influence on presidential pardoning was the "hostility of federal prosecutors and a change in the administration of the pardon program at the Justice Department that allowed prosecutors to control clemency recommendations."

"The story is that the Justice Department has essentially shut down the clemency process," Love says. "They are not fully investigating the applications. The pardon program lost independence and integrity, and Clinton suffered mightily for it at the end of his term."

Love is referring to the last-minute clemency grants made by Clinton on his final day in office. "Justice gave him no advice, and so he opened the door and let people in," she says. "As a result, there were so many bad grants. A similar thing happened at the end of the Bush administration, but he refused to repeat Clinton's mistake."

In "The Twilight of the Pardon Power," published in The Journal of Criminal Law and Criminology in 2010, Love argued that "the paucity of grants at the end of President Bush's term, like the torrent of grants at the end of President Clinton's, can be attributed to a chronically dysfunctional pardon-advisory system in the Justice Department, a system dominated by prosecutors that produces few favorable recommendations, and that serves its own institutional interest rather than that of the presidency. Clinton dealt with that problem by staffing pardons in the White House."

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