Friday, February 20, 2009

Former U.S. Pardon Attorneys Speak Out

Margaret C. Love and John R. Stanish are former U.S. Pardon Attorneys who served during the administrations of both Democratic and Republican presidents (Carter, Bush and Clinton). They have also recently published a piece in the National Law Journal which should be of considerable interest those with both casual and scholarly interest in presidential pardons. In addition to diagnosing the dysfunctions of the current system, Love and Stanish make a powerful case for immediate, sensible reform. As such, the piece is likely to be referenced for years to come.

The former U.S. Pardon Attorneys note that most presidents have hit the ground running with respect to the pardon power. Recent presidents, however, have neglected the power, waiting considerable lengths of time before even beginning to exercise it and, when all is said and done, exercising it very little at all. Why did most previous presidents start granting pardons early?

... because they inherited an administrative system that ensured a steady stream of favorable recommendations from their attorneys general. Pardoning was considered a part of the routine housekeeping business of the presidency, and hundreds of grants were made every year, without fanfare, to ordinary people convicted of garden-variety crimes. This low-key system worked well for more than a century, and generally kept the president out of trouble.
It is clear, however, that the system described by Love and Stanish has "broken down," and with "disastrous results." They note the "disappointing trickle of grants" at the end of Bush's term, like "the torrent of irregular grants at the end of Clinton's" was

... the product of a chronically dysfunctional pardon advisory system in the Justice Department, a system now dominated by prosecutors that produces few favorable recommendations ... [and] neither president was well-served by a Justice Department whose pardon office has become a place where petitions for presidential mercy go to die

Were this all there was to say, it might not be considered much to many. But Love and Stanish also note that "harsh no parole sentences" have rendered the pardon power increasingly "critical to the fair and efficient operation of the criminal justice system."

Love and Stanish call for a "reliable and independent system" for administering the pardon power. To this end, they recommend that President Obama 1) decide what role pardons will play in his administration and 2) direct the attorney general to see that this policy is implemented. They also suggest that Obama 3) appoint his own pardon attorney since "a personal relationship between the president and his pardon attorney is essential for the pardon program to command the respect and resources it needs within the Justice Department." See full article here.

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