Monday, March 29, 2010

Obama Pardon Secrecy Policy: More Bush

Josh Gerstein at the Politico notes the Obama Administration is fighting George Lardner's request for the names of 9,200 individuals denied clemency by George W. Bush. At the same time, Obama has vowed to operate the most "open and transparent administration in history." Hardy Harr Harr! Obama's D.O.J. claims clemency applicants "have a substantial privacy interest in nondisclosure of the fact that they have unsuccessfully sought clemency" and the "substantial privacy interest of the clemency applicants outweighs the negligible public interest in disclosure of their names.”

No one knows what those interests are, or what form they might take given the fact that the names of all of  these individuals, all of their convictions and all of their sentences are all a matter of public record. On top of that, the Pardon Attorney does release the names of persons who have both received and been denied clemency. Obama's "privacy" flow chart appears to look something like this:

grand jury / preliminary hearings: no privacy interest
arrest: no privacy interest
trial: no privacy interest
verdict: no privacy interest
sentence: no privacy interest
appellate process: no privacy interest
enter prison: no privacy interest
released from prison: no privacy interest
application for pardon: substantial privacy interest
receive pardon: no privacy interest
denied pardon: may (or may not) have substantial privacy interest

The D.O.J. passionately argues disclosure "of the fact that individual offenders have unsuccessfully sought pardons or commutations unquestionably will re-stigmatize the applicants and draw renewed attention to their offenses, thereby harming their prospects for successful rehabilitation and reintegration into the community, as well as possibly subjecting them to the risk of retaliation." The same argument could, of course, for media reporting on trials, or appeals, or publishing full appellate opinions in beautiful binding for passers-by in our Nation's libraries to see! How often criminals have been stigmatized by that pesky Supreme Court Reporter! Every case synopsis and introductory paragraph (re-hashing, in great detail, the facts) could "possibly" subject criminals to the "risk of retaliation"! Come to think of it, reporting the name of a clemency recipient might, more often than not, inform people - who did not previously know - that the recipient committed a crime! An announced pardon might harm the prospects for "reintegration into the community." See Gerstein's piece here.


Anonymous said...

I for one support keeping denied applications private. As a petitioner, if my app was denied, I would not want it to be public information. It would become another penalty/negative against me that otherwise wouldnt surface. As a business owner, it will be challenging to deal with publicly being granted a pardon, however, publicly denied, I fear would be very detrimental to my business.

P.S. Ruckman, Jr. said...

EDITOR: Anon, You comment brought to mind an interesting question for me: If there are victims of a crime, should they have the right to know someone is applying for a pardon, so that they can express their own view on the matter? Best,

Anonymous said...

As another pardon applicant, I understood the risk of the information being out in the public forum. The day I broke the law, I became part of the public record. There are those who believe that no one should ever be forgiven for there errors, but our country is about second chances. I have lived in the shadows for many years and have been fortunate that my crime has only surfaced once, I lost a large client because of it. If I am granted a pardon, I may well suffer the lose of business, but I will also have my rights back and be able to come out of the shadows.

Anonymous said...

Mr. Ruckman,
I dont think so. A petitioner for pardon is one who has already served his/her sentence, or "debt to society". I believe it is different than a commutation, or even a parole. A person being released will now be in the population where as, a pardon petitioner has already demonstrated a minimum of 5yrs, in most cases much longer (not including political pardons, or famous persons), without incident. At that point, it isnt a question of justice being served, and the victim/s opinion is irrelevant. If not, than even people worthy of forgiveness, can & would end up with life disabilities if their victim had a say in it. I would feel different if their was another system for relief. As it stands there isnt.

For alot of pardon petitioners it is strictly relief, from a life sentence barring one to vote, barring one from being a sportsmen. Or in some cases, strictly desiring to "close" that chapter in their life. To feel forgiven.... finally.

P.S. Ruckman, Jr. said...

Anon1, Please do not get me wrong, I wish you and anyone else, all of the luck in the world in getting a pardon. I also understand your sensitivity to the public would obviously be greater than mine - me not being in your shoes. That all being said, I think there is just as much chance of failed pardon applications generating sympathy and support among reasonable people as there is that they would generate distrust, animosity, etc. from others. Second, crimes, offenses and sentences are all a matter of public record anyway (as would be a pardon). And finally, I am not certain that privacy in these matters fit well with the trend toward openness in government and the rights of the victims of crime.

P.S. Ruckman, Jr. said...

EDITOR- Anon2, I spoke to a crowd of maybe 30-35 people last year in a retirement community. I was particularly emphasizing the "finally forgive" aspect that you touched upon. I was greeted with, "Well, if you can't do the time, don't commit the crime!" I would be much better prepared for something like that today, if it happened to me again. At the time, I was somewhat stunned.

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