Monday, December 12, 2011

Morison on the Clemency Process

Over at the blog of the American Constitution Society, Sam Morison, former attorney-adviser in the Office of the Pardon Attorney, U.S. Department of Justice, has written an excellent piece on the pardon power, with emphasis on current problems and a view toward the future.

Among other things, Morison notes the "hornbook account" of the pardon power as a "nearly absolute prerogative of the President" is "a bit misleading" because:
In fact, the President’s immediate legal staff does not have the resources to properly evaluate the hundreds of clemency cases that are filed annually. Instead, by longstanding practice, the President has delegated this responsibility to career officials in the Justice Department’s Office of the Pardon Attorney. Pursuant to rules promulgated by the President, clemency applicants are required to submit their petitions to the pardon office, which, in turn, exercises firm control over the flow of information to the White House.
Morison adds that the office "does not view its role as a neutral arbiter." Instead,
it exploits the asymmetry of information to protect the Department’s institutional prerogatives, churning out a steady stream of almost uniformly negative advice, regardless of the merits of any particular case. In effect, this amounts to little more than an effort to restrain (rather than inform) the President’s exercise of discretion. The implicit message is clear: you will either do as we suggest, Mr. President, or you’re on your own. It is a singularly efficient system. Generally speaking, the President feels compelled to adhere to the Department’s advice, even while privately chaffing at the bit. 
Thus, George W. Bush received about 11,000 clemency petitions and only 189 pardons and 11 commutations were granted. The solution? Morison offers:
The fundamental issue is this: who will exercise effective control over this broad discretionary power, the President or a small cadre of anonymous bureaucrats in the Justice Department? Historically, the pardon advisory function has been housed in the Department entirely as a matter of administrative convenience, pursuant to the President’s authority under the Pardon Clause. Whatever utility this arrangement once had, the structural deficiencies in the existing advisory system have rendered it dysfunctional. Under the circumstances, I submit that the President has a constitutional obligation to remove the advisory role from the Justice Department, and reconstitute it within the Executive Office of the President, where it can operate without the burden of an entrenched conflict of interest.
See full editorial here.

1 comment:

Anonymous said...

Please comment on the new Clemency Statistics on the Pardon Attorneys website that shows pending pardon applications now at 643. This is a 50% reduction from last posted numbers. Did we miss a batch of denials or were they slow to update numbers. Anyway you slice all this, it appears trying to receive a pardon is like trying to win the lottery.

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