Monday, November 17, 2008

The President: Post on Lame-Duck Pardons

Today's Washington Post features an editorial entitled, "In Defense of Lame-Duck Pardons." The author is former U.S. Pardon Attorney Margaret Colgate Love. Among other things, Love notes:
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 ... 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.
PardonPower has discussed pardon statistics with Love in recent months and we seem to be inching toward congruence. We agree that Clinton's last-minute splurge was unique in terms of degree. Other presidents (a handful) have splurged near the very end of their terms, but none of them to the degree that Mr. Clinton did. We continue to maintain however, that most presidents have granted the highest number of pardons in the fourth and last year of the term.

More importantly, Love argues the pardon power "is more functionally relevant to the federal justice system today than it has been since the 19th century" because demand for clemency "increases when the system lacks other mechanisms for delivering individualized justice, for recognizing changed circumstances, or for correcting errors and inequities." She then notes the Sentencing Reform Act of 1984, in particular, has made the pardon power "virtually the only mechanism by which lengthy mandatory prison sentences can be reconsidered once they have become final."

Love laments that pardon "has not played a meaningful role in the justice system for years," but offers that "a series of final pardons could highlight flaws in the justice system that would be instructive to the next administration." We could not agree more. See Post editorial here.


law firm tamara said...

According to Ms. Love, "demand for clemency increases when the system lacks other mechanisms for delivering individualized justice, for recognizing changed circumstances, or for correcting errors and inequities."

I respectfully disagree with Ms. Love. The demand for a pardon does not *increase*; instead, after appeals and post-conviction motions are exhausted, one's *only option* is a pardon from the President/Governor. In essence, at that point, the demand for a pardon is simply CREATED, not increased.

What bothers me most about the pardon POWER is that Presidents and Governors alike have totally disregarded their enumerated power to grant pardons. Pardons are a FUNCTION of the job. Imagine if you totally ignored your duties at work? You told your boss, "Hey, I'll get to that job when I feel like it; just put it over there in the corner." Because we are such a punitive society with 1 in 100 people in prison/jail, we think people should be punished FOREVER, regardless of a wrongful conviction or even total rehabilitation.

Until a President/Governor steps up and starts performing his ENUMERATED FUNCTION WHILE IN OFFICE, our society will continue to believe that a pardon shouldn't be granted for even the most-deserving.

This mentality is perpetuated by our leaders refusing to grant pardons.

Attorney Tamara N. Holder

Anonymous said...


I'm not sure you really disagree with Ms. Love. You note that after exhausting appeals and post-conviction challenges, the judicial process comes to an end and a defendant's only remaining option is executive clemency. But that is just Ms. Love's point -- other non-judicial mechanisms for post-conviction relief, such as parole or 3582(c), have been eliminated or made obsolete by exceedingly narrow interpretation. Hence, the importance or significance of executive clemency does indeed increase, precisely because its the only remaining avenue of relief. Moreover, the number of applications being filed with the Justice Department has increased to historic levels, at least in sheer numbers(perhaps not as a percentage of the federal prison population, which I don't know). Thus, the demand for clemency does seem to have increased in the straightforward sense that more people are applying, which tends to bolster Ms. Love's point. I really don't see the contradiction here.

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