But the piece asks the legitimate question: "What accounts for Mr. Obama’s stinginess with pardons?"
The author, a visiting fellow at the Heritage Foundation suggests "the most likely answer" lies in the "institutionalization of the process." More specifically, today, "presidents wait for a recommendation from the Office of the Pardon Attorney, in the Department of Justice, before they act on a petition for clemency." Says the author:
Putting the recommendation power in the Department of Justice has institutionalized the hostility of prosecutors to the exercise of the pardon power. No prosecutor, after all, is likely to acknowledge his own error.The problem with this analysis is, of course, that 1) these institutional arrangements have been in place for some time, but have not necessarily resulted in the lethargy of the Obama administration. And 2) the typical act of clemency (as in well over 90 percent) does not involve blowing apart prosecutorial work, or involve correction of error at all. Pardons simply restore the rights of persons who have served their time (if they ever had any) and have integrated themselves back into society as productive members. We suggest that, if it were all a matter of prosecutorial pride, that would be simple. But something much more pernicious is operating here.
Nonetheless, the piece suggests that we need to return the pardon power "to its original function" by creating "a pardon-reviewing authority outside of the Department of Justice, as part of the Executive Office of the President." This authority should be staffed "with personnel from a range of disciplines, including prosecutors, sociologists, psychologists, historians, and even, yes, defense lawyers." See full editorial here.