Friday, April 1, 2016

Osler: On Pardoning, the DOJ and President Obama

Mark Osler has a piece in the New York Times which dissects the well-known clemency problem which has existed for some time in the United States. Osler notes that, despite Wednesday's 61 commutations of sentence, President Obama is "far from accomplishing the ambitious goals his administration publicly set out two years ago." Or, so we all hope!

Osler notes there are "more than 9,000 pending commutation cases." A closed White House briefing, yesterday, revealed Clemency Project 2014 is still juggling well over 30,000. So, Osler asks, "Why has the president acted on so few?"
"The problem here is that too many cases can’t be adequately considered by the president because of a sluggish and often intransigent review process. Clemency petitions undergo no fewer than seven levels of review, four of them within the Department of Justice. Within the Justice Department, clemency petitions run not only through the Office of the Pardon Attorney but also through the office of the deputy attorney general."
What is more, "meritorious clemency cases" have been "thwarted" by nameless, faceless bureaucrats nested in the administration. Or so a recent letter of resignation from the former U.S. Pardon Attorney says. The letter took particular aim at the deputy attorney general, Sally Quillian Yates. Writes Osler:
It is not an incidental fact that Ms. Yates is a career prosecutor. When the Department of Justice reviews clemency cases, the opinions of prosecutors in the district of conviction are solicited and given considerable weight. But prosecutors are the wrong people for the task of vetting clemency cases ... We should not be surprised if, when it comes to Mr. Obama’s clemency initiative, prosecutors systematically resist what is, in effect, an indictment of their work. 
Osler suggests that President Obama "can and should fix this problem" with a "simple executive order" that "places the Office of the Pardon Attorney in the White House, rather than at the bottom of the institutional structure at the Department of Justice." The result would be "an empowered pardon attorney" and an "independent" thorough "review of clemency petitions free from the influence of career prosecutors."

Regardless, Mr. Obama "needs to take action soon." See full editorial here.

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