Thursday, November 27, 2014

Barkow and Osler on Obama, the Clemency Process

In today's Washington Post, Rachel E. Barkow (New York University Law School) and Mark Osler (University of St. Thomas, Minnesota) provide a poignant editorial comment:
In the run-up to Thanksgiving, it was a sure thing that a turkey would get an efficient reprieve from President Obama. But that’s only because the turkey did not have to go through the normal pardon process. If it had, it would likely have waited more than four years and have had several layers of government bureaucrats nit-picking its case. The federal clemency process — for humans, at least — is broken, and Obama should act now to fix it for the benefit of his and future administrations. 
Barkow and Osler suggest President Obama has been once of the "worst" presidents, when it comes to pardoning, but also feel that he "seems aware that there are times when a pardon is appropriate." It is a hope that been hanging around, now, for six long years.

The authors are also concerned that "short-term" programs - like explicit calls for more clemency applications - will do "nothing to fix the problematic regular clemency process that will survive this administration." Indeed, the Obama administration already had record numbers of clemency applications before he expressed the desire to have ... even more.

Instead, Obama should fix the "underlying problems," especially since "what is broken is no mystery":
The key gatekeepers for this process are in the Justice Department — the same agency that prosecutes federal crimes. Unsurprisingly, the department has been reluctant to second-guess its own decisions and rarely recommends that the White House approve a clemency petition. Moreover, each petition must pass through as many as seven levels of review prior to approval, and many of those doing the reviewing (such as the deputy attorney general and the White House counsel) have plates already full with other duties. That’s why the average review time for approved clemency petitions in this administration has been about four years, according to P.S. Ruckman Jr., a political science professor who edits the Pardon Power blog.  It’s easy to envision a better method. 
Barkow and Osler suggest:
The president should appoint a bipartisan commission of Democrats and Republicans with expertise in criminal law to consider all applications and track data on recidivism and other outcomes. The agency can work with the president’s reentry council to coordinate prisoners’ transitions back to civil society. And because the commission would be politically balanced, the president would not need to worry about being exposed to Willie Horton-style attacks, should a convict commit some new crime after being freed; these will be cases that people of all political stripes agreed deserved relief. President Gerald Ford used this device in 1974 when he created a temporary board to quickly process about 21,000 Vietnam-era draft evasion and deserter cases. 
Barkow and Osler reason that the fact that "so few people" even remember Ford's plan is both telling, and positive. It is also notable that "states almost uniformly use such boards rather than the federal approach of sending the review through layers of prosecutors." They do so because "It works."  See full editorial here.

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