Wednesday, January 27, 2016

NY Times: The Pardon Problem

The New York Times argues that the "sudden resignation" of U.S. pardon attorney, Deborah Leff, is
... the latest evidence that until the clemency process is pried from the grip of the Justice Department, it will remain broken. 
Maybe so. We don't know. Second and third hand reports (from unidentified "friends") suggest Leff resigned because she was not happy with the level of support her office received. But, it is hard to believe she was not aware of the situation in that office, generally, when she came to the position. It was receiving a record number of clemency applications before she stepped in and the number of pardon and commutation grants was abysmal.

The Times recognizes that "for most of his time in office" President Obama "has exercised this power only rarely" - even though he has "focused more attention on this issue." The Times says Leff’s appointment "was a promising sign."

Says the Times:
The lack of resources is only part of a deeper problem, which is that the pardon office is caught in an incurable institutional conflict. The deputy attorney general has authority to review the pardon attorney’s clemency recommendations, and federal prosecutors generally have little interest in revisiting or undoing the department’s convictions. 
This analysis, of course, is only applicable to commutations of sentence. Pardons very rarely have anything at all to do with anyone's conviction being "revisited" or "undone" - not in any normal sense of the language. And Obama's record on pardons is one of the worst ever. But, he can:
... end this blockage either by running the pardon office directly out of the White House or by appointing an independent commission, as several states have done to improve and streamline their clemency processes. 
The Times says executive clemency "is a critical check on a justice system," but it is so so much more than that. It is also a check on the legislature. It is a recognition that politicians of all stripes are not perfect. Laws are not perfect. The application / interpretation / execution of the law is a far from a perfect enterprise. It is an expression of the American concern about "unfortunate guilt," rehabilitation, restoration and a general sense that very few punishments should be life long.

See full editorial here.

1 comment:

Anonymous said...

At the behest of someone, for whatever reason, the Office of the Pardon Attorney has recently started publishing clemency denials. It even retroactively went back and published every denial issued during the Obama administration, back to 2010.

Consider this situation: you are someone who, long ago, was sentenced to probation and a fine for a relatively insignificant Federal regulatory offense. You apply for clemency. For whatever reason you aren't granted the capricious miracle that is a "presidential pardon", that "denial" becomes a matter of very high profile public record (and in turn, an inexorable part of your Google footprint).

The removal of discretion from the pardon process has introduced a meaningful chilling effect on applicants, whereby the people most deserving of one (people who've gone on to rebuild their lives) are now strongly disincentivized from applying for fear of a routine pardon denial dominating their Google footprint and possibly harming the life they've gone on to build.

More 'government records infotainment that we naively mismanage.

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