Thursday, December 17, 2015

December Pardoning: Still a Bad Idea

The assertions that presidents (and governors) tend to grant pardons and commutations of sentence near the end of their terms, or during the Holiday Season, are empirical propositions to be tested, not simply stated. For that reason, the Editor of this blog conducted the first data-driven analysis of "seasonal" clemency, published in White House Studies (Volume 11, Number 1, 2011). Among other things, the study found 1 of every 2 grants of clemency from Nixon to George W. Bush (39 years) was granted in the month of December. Furthermore, the prevalence of December pardoning remained considerable, even when controlling for late term (fourth year) December pardons.

It is reported that President Obama will be granting clemency in a hundred or so cases some time in the next few days. Here is how his administration compares to previous administrations re December pardons:

Click on Image (Above) to Enlarge
As a long-term advocate for greater / more serious use of the pardon power (state and federal), it will be easy enough for the Editor of this blog to be happy for the recipients of President Obama's forthcoming mercy - especially since we live in a nation where the Founding Fathers thought there should be "easy access" to mercy. Nonetheless, we continue to hold the conclusion that can be found in our original research: December ("seasonal," or Christmas) clemency is - generally - a very, very bad idea. It is a very poor substitute for serious, regular consideration of clemency applications - and grants - throughout the year (and the term).Why?

First, December pardoning sends the signal that the pardon power is an afterthought, something to consider - maybe - just before the year closes out. This impression certainly seems to fit the Obama administration, which has done precious little pardoning for seven years. It is also easy enough to imagine such decision making as rushed, indefensibly casual and/or lacking the kind of careful deliberation that is warranted. Justice, however, should be a year-round, serious concern of a president (and a Department of Justice in an executive branch) constitutionally lodged in a system of checks and balances. If there is no checking, there will be no balance.

Second, December pardoning signals the possibility of a kind of alternate scenario: that clemency decisions are, actually, made throughout the year, but the White House simply sits on applications until December ... for whatever reason. So, the President decides someone deserves a pardon or commutation of sentence, in January, but nothing is actually done for 11 months. They just sit in prison for another 11 months. Or they live without restoration of their civil rights for another 11 months. That is more than lazy, or irresponsible. It is a despicable practice. See a previous post here.

Third, December pardoning suggests to the general public that pardons are something like "gifts" given to persons who may or may not actually deserve them. That is too bad, because we have no problem assuming most recipients of clemency in this day and age are more than deserving. Why should a cloud of suspicion / disrespect be cast over them? Of course, the "gift" idea is exacerbated by long periods of time without pardoning. Observers more easily wonder - and rightly - "why these people?"

For seven years, the Obama administration has been one of the most merciless in American history, slow to pardon, stingy in grants and comfortable to do absolutely nothing for months at a time.

Here's to a New Year's Resolution for 2016: Do it differently, Mr. President, radically!

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