Sunday, February 9, 2014

Times: Missing, and Hitting, on Pardons

Today's Times features an editorial which begins with the observation that "Presidents Jefferson, Madison, Monroe, Lincoln, and Truman viewed the clemency process as a central mission of the office" - a thought well worth documenting in some manner.

But, the piece notes, "the concept of mercy went out of fashion by the 1980s, when the country embarked on a mandatory sentencing craze that barred judges from exercising leniency when it was clearly warranted and placed the justice system almost entirely in the hands of prosecutors." Readers of this blog are certainly familiar with our concerns re mandatory minimums, and our sense that the pardon power should be employed to address their unintended and most heinous consequences. On the other hand, we feel that to suggest that the general decline in federal executive clemency is the result of a policy change in the 1980s is a bit of an over-reach.

Presidential use of the pardon power clearly began to decline in the early 1900s. This is demonstrated in original data being gathered for the forthcoming book that the Editor is writing with former Washington Post reporter and Pulitzer Prize winner George Lardner. The reasons for the decline in this period are numerous and complex. They relate to such things as the creation of alternative release mechanisms (probation and parole), the use of master warrants, changes in the rules regulating the clemency process, movement of the pardon process from the State Department to the Department of Justice and from the hands of the AG to the DAG, scandals (at the end of the Truman administration, Ford's pardon of Richard Nixon, the Iran-Contra pardons, the Willie Horten affair, Marc Rich, FALN, etc.), etc. Presidents from Washington to Truman pardoned regularly, every month, of every year. The Eisenhower administration changed all of that.

But, beside that, we agree with the Times' summary:
The perpetual punishment model of justice has had far-reaching consequences. Politicians stayed as far away from clemency as they could, fearing that voters would view them as soft on crime. Meanwhile, at the Justice Department, the clemency process — which had been a cabinet-level responsibility — fell under the authority of prosecutors who seemed to view even reasonable lenience as a threat to the prosecutorial order. The time required to handle clemency applications went from months to years; the backlog grew; the stream of mercy that had once flowed began to dry up. The clemency system, in other words, is in a state of collapse.
And we agree:
What’s needed is wholesale reform of the department’s pardon office, which has proved itself ineffective and incompetent, partly because the current process relies on the department to evaluate its own work. One sound idea is to create a clemency review panel outside the Justice Department, perhaps as a part of the executive office. Mr. Obama could form an advisory board, or reconfigure the pardon office to include defense lawyers, sociologists and other experts who would bring a broader perspective to the issue. The goal would be to give the president unbiased information that would enable him to exercise fully this important aspect of executive power.
See the full editorial here.

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