Thursday, November 6, 2008

Report: Smart on Pardons

Virginia Sloan, President of the Constitution Project, has coordinated an effort to produce a document entitled, "'Smart on Crime: Recommendations for the Next Administration and Congress." Section Nine of the report is entitled, "How to Make Operational and Strategic Use of Executive Clemency." While the introductory portion of this section contains standard misconceptions, the remainder of the section is certainly fascinating reading. For example, one passage reads:

The Justice Department's Office of the Pardon Attorney (OPA) takes many years to process a case and evidently makes few favorable recommendations. The number of clemency applications has increased dramatically in recent years, producing a backlog of over 2,000 requests. Applicants have waited as long as eight years before receiving notice of the president's final decision and only a small percentage of requests are granted. This is a sharp contrast from practice prior to 1980, when grants were made regularly and frequently.
It is certainly true that clemency applications have "increased dramatically" in recent years. But the notion that 1980 somehow represents the closing of the good-old-days for clemency is highly problematic. Here is a chart of pardons granted in the Carter administration. Yes, there is a kind of regularity apparent in the grants of this administration (which was previous to 1980). But it is equally clear that pardons were granted about four or five times a year, and usually on or around the month of December, resulting in the fantastic skew one can see here. In 27 of Carter's 49 months in office zero pardons were granted. Likewise, it very difficult to apply the language "regularly and frequently" to pardons granted in the administrations of Nixon (here) and Nixon/Ford (here). Indeed, it would be more appropriate to use the words, "infrequently and in an obviously lop-sided fashion" (see monthly distribution for both administrations here). But, again, these misconceptions are not new.

In the main body of the section two broad goals are asserted 1) to make the Justice Department's clemency process more "efficient, reliable, and accountable" and 2) to make granting clemency a "strategic priority" for the White House. With respect to the first goal, it is recommended - among other things - that the U.S. Attorney General sign all pardon recommendations to the President, that the Pardon Attorney develop a "strategic plan" for the use of the pardon power to accomplish the President's "criminal justice policy agenda" and that the staff in the Office of the Pardon Attorney be built up. It is also recommended that the President's "pardon policy" and the "standards for favorable consideration" of applications be "made public."

With respect to the second goal, it is recommended that a "senior attorney" in the White House Counsel's office "review and advise the president on pardon matters" on "a regular basis." In addition, "regular opportunities" should be scheduled for the President "to review and act on clemency requests with his counsel."

Finally, this portion of the report recommends specific uses of the power: to correct "particularly harsh sentences," to remedy disparity in the cases of girlfriends/wives, "drug mules," and first-time drug offenders, to give retroactive application to changes in the law, to signal "disapproval" of a particular investigative or prosecutorial practice, to "give effect" to a judge's expression of regret over having been required to impose too harsh a sentence, to send home "seriously ill or elderly prisoners" who can receive adequate care from their families and to strategically to advance criminal justice reforms

PardonPower also finds it notable that the report recommends the following:
Publicize clemency grants to make the public and Congress more comfortable with the use of clemency and to show the "human face" of those serving harsh prison sentences, or laboring under the lingering collateral disabilities of a criminal conviction.
See this commentary from 8 years ago and the report's full commentary on the pardon power here.

No comments:

blogger templates | Make Money Online