The use of the pardon power is a necessary element in a fully functioning system of criminal law. Recent presidents, however, have largely ignored this powerful tool, even as many have sought to expand the power of the office in other ways. This Essay seeks both to describe the costs of this trend and to propose important structural reforms to reverse it. Specifically, we advocate for the creation of a clemency commission with a standing, diverse membership. While this commission should have representation from the DOJ and take the views of prosecutors seriously, the commission itself should exist outside the Justice Department, and its recommendations should go directly to the White House. This new model of clemency should also pay attention to data, both to create uniform standards and to focus the use of the pardon power as a management tool. An emphasis on data will also help the new pardon commission make evidence-based decisions about risk and reentry. This is the time to create a better machine of mercy that will serve the Constitution’s mandate no matter who holds the presidency.

Introduction

The morning of March 30, 2010, presented a remarkable moment. The US Supreme Court was hearing argument in Dillon v United States.1 The case concerned whether Percy Dillon, a convicted crack dealer, could receive a reduction in his sentence based on postconviction rehabilitation.2 It was going poorly for Dillon: the Court seemed disinclined to consider the relief that he sought. Then things took a dramatic turn. As then–solicitor general Elena Kagan looked on in surprise from the counsel table, Justice Anthony Kennedy pointedly raised an unexpected issue in the following exchange with Assistant Solicitor General Leondra Kruger:

JUSTICE KENNEDY: The Petitioner’s brief opens with a statement about his rehabilitation. We don’t know if that has been contested. You don’t respond to it. But let’s assume that’s all true. He established schools, and he helped young people and so forth. Does the Justice Department ever make recommendations that prisoners like this have their sentence commuted?

MS. KRUGER: I am not aware of the answer to that, Justice Kennedy. It is certainly true that evidence of that type of rehabilitation factored into the government’s recommendation in this case that Petitioner—

JUSTICE KENNEDY: And isn’t the population of prisoners in the Federal prisons about 185,000 right now?

MS. KRUGER: I think—

JUSTICE KENNEDY: I think it is. And were there—how many commutations last year? None. How many commutations the year before? Five. Does that show that something is not working in the system? 185,000 prisoners? I think that’s the number.

MS. KRUGER: I—I’m not prepared to speak to that question today, Justice Kennedy.3

This unusual exchange reflects a state of crisis in an often-hidden corner of criminal law: the use of the pardon power as a necessary element in a fully functioning criminal-justice system. The Framers took the pardon power seriously, creating it as a virtually unchecked power of the presidency.4 Recent presidents, however, have largely ignored this powerful tool, even as some have sought to expand the power of the office in other ways.5

This Essay seeks both to describe the costs of this trend and to propose important structural reforms to reverse it. Presidents may have different substantive standards for when the use of clemency is appropriate, and clemency rates may therefore rise and fall according to who holds the presidency.6 However, the current administrative process for reviewing clemency petitions stands in the way of just about any vision that a president may have about invoking this authority. Recent presidents across the political spectrum—from President Bill Clinton to President George W. Bush—have been unable to systemically grant clemency even when they have wanted to do so.7 If the wisdom of the Framers is to be respected, each gear in the machine of the government that they created must be kept in good order—clemency is no exception simply because the power itself is so sweeping. Indeed, clemency stands as a case study in how poor administrative design can foil even broad substantive powers.

Taking clemency reform seriously is particularly important now. After a first term in which he granted fewer clemency petitions than any modern president, President Obama has signaled that he intends to take a more vigorous approach to clemency in his second term. In the first several months of 2014, that meant replacing the pardon attorney,8 actively soliciting more petitions that meet the president’s announced criteria,9 encouraging US Attorneys to support clemency in some cases,10 and temporarily assigning more lawyers to the Office of the Pardon Attorney to process clemency petitions.11 These initiatives will likely assist President Obama in achieving his stated goals for clemency, which are focused on granting commutations to individuals who would be sentenced differently today based on changes in the law.12 It is not a model of structural reform but a plan to work within the existing framework to find and process more cases in which to grant commutations based on factors outlined specifically by the president.13

While we applaud the president’s efforts, we believe that lasting, meaningful clemency reform requires more. Specifically, the clemency process should be restructured to achieve its constitutional functions not only for this president, but for all presidents. Future presidents may not want to limit commutations to only those situations in which a change in the law would dictate a change in sentence. They may wish to have pardon attorneys look for injustices in individual cases based on the specific facts of those cases, even if the underlying law has not changed. They may wish to use clemency as a means for policing federal prosecutors who exercise their discretion in a way that does not correspond to the president’s and attorney general’s policies. They may also seek more insulation from political criticism and a process that is based as much as possible on what we know about the relationship between recidivism, length of sentence, collateral consequences, and rehabilitation. None of these goals can be achieved under the announced Obama reforms. These goals require more than a shift in resources and personnel. They require wholesale structural change.

Part I of this Essay sets the stage for the discussion by considering the fading of the pardon power and the rusting out of the clemency process. It then explores the costs of this development. First, and perhaps most obviously, a decline in clemency exacerbates the problem of overincarceration in the federal system, as very few prisoners receive commutations of their sentences.14 Compared to other factors, such as lengthy mandatory minimum sentences,15 the absence of a vigorous commutation policy may not seem significant, but it nonetheless contributes to the problem of overincarceration. Second, the falling away of the pardon power risks atrophying the process mechanism. It seems that exactly this has happened, based on reports of how the Office of the Pardon Attorney has functioned in recent years.16 Third, if commutation is functionally unavailable, it puts pressure on other mechanisms available to prisoners, such as habeas corpus, coram nobis, and other appeals to courts.17
Finally, if the pardon power goes unused, the system becomes unbalanced. The Framers intended clemency to serve as a check on overreach in punishing criminals. If clemency is abandoned by the executive branch, the structure as a whole is strained.

Considering the costs of not using clemency obviously highlights the benefits of reinvigorating it: a renewed commitment to clemency can help address the problem of mass incarceration, improve the process mechanism, reduce pressures on other early release mechanisms, and bring new balance to the system. But there are other possible benefits to a robust clemency system, particularly if it is reconstructed. Part II will suggest reforms that yield additional benefits.

The key is the abandonment of the current bureaucracy in favor of a new institutional structure. Embedding a single official (the pardon attorney) deep within the DOJ has proven to be a failure.18 Instead, review of clemency petitions should be entrusted to a commission that has a diverse, standing membership that includes key conservative representatives who are particularly sensitive to victim interests and public-safety concerns. Having these voices on the commission will ensure that these interests are given significant weight and will also provide the president with political cover when he opts to grant clemency because he will have the backing of a bipartisan group that cannot be accused of being soft on crime or insensitive to public safety. And while this commission should have representation from the DOJ and take the views of prosecutors seriously, the commission itself should exist outside the Justice Department and its recommendations should go directly to the White House.

This institutional shift will help alleviate the prosecutorial bias in decisionmaking that exists within the Justice Department and that handicaps the ability of the Office of the Pardon Attorney to police prosecutorial abuses.19 It will allow clemency to serve as a check on the exercise of prosecutorial discretion, promoting uniformity. Clemency, seen in this light, can help bring uniformity to prosecutorial decisionmaking in much the same way that the creation of the independent Sentencing Commission helped bring uniformity to the exercise of judicial discretion in sentencing.20

Just as the success of the Sentencing Commission rests on data collection, the success of this new model of clemency should also pay attention to data. This would both create uniform standards and employ the pardon power as a management tool that allows the president to properly use clemency as a check on enforcement policies that have proven themselves to be too harsh and on the unwise use of prosecutorial discretion even under existing policies. An emphasis on data will also help the new pardon commission make evidence-based decisions about risk and reentry.

Over the past three decades, the pardon power has too often been ignored or used to create calamities rather than cure them.21 Presidents seem to realize that the system is not working only at the end of their time in office, when they feel safe in giving grants but become aware of the fact that the system does not produce many recommendations for doing so, even when asked. There is thus a last-minute scramble to find cases to avoid a charge of being unmerciful or perhaps to fill what is
finally recognized as a duty of the office.22 But clemency deserves to be more than an afterthought. It is time to view clemency reform as a priority for the office of the presidency no matter who holds the position. This is the time to create a better machine
of mercy.

  • 1. 560 US 817 (2010).
  • 2. Id at 822–23. Dillon sought this reduction based on a retroactive reduction in the Sentencing Guidelines relating to crack offenses. Id at 823.  
  • 3. Transcript of Oral Argument, Dillon v United States, No 09-6338, *40–41 (US Mar 30, 2010), archived at http://perma.cc/E57X-PDNG (paragraph breaks omitted).
  • 4. See Rachel E. Barkow, The Ascent of the Administrative State and the Demise of Mercy, 121 Harv L Rev 1332, 1345–46 (2008). See also Part I.E.
  • 5. For example, President Barack Obama and some of his predecessors have sought to enlarge the president’s war powers. See Curtis A. Bradley and Trevor W. Morrison, Presidential Power, Historical Practice, and Legal Constraint, 113 Colum L Rev 1097, 1099–1100 (2013); Michael D. Ramsey, Meet the New Boss: Continuity in Presidential War Powers?, 35 Harv J L & Pub Pol 863, 863–64 (2012).
  • 6. See Jeffrey Crouch, The President’s Power to Commute: Is It Still Relevant?, 9 U St Thomas L J 681, 685–86 (2012) (discussing variation in clemency rate by president).
  • 7. See Part I.C.
  • 8. US Department of Justice, Press Release, Announcing New Clemency Initiative, Deputy Attorney General James M. Cole Details Broad New Criteria for Applicants (Apr 23, 2014), archived at http://perma.cc/S93G-AKAU.
  • 9. Id.
  • 10. Id (noting that “Deputy Attorney General Cole sent a letter to all of the 93 U.S. attorneys asking for their assistance in identifying meritorious candidates”). At the NYU Center on the Administration of Criminal Law’s annual conference in 2014, Kathryn Ruemmler, counsel to Obama, noted that the president had recently conveyed his interest in clemency to US Attorneys.
  • 11. DOJ, Press Release, Announcing New Clemency Initiative (cited in note 8).
  • 12. See id.
  • 13. See id.
  • 14. See Terry Carter, Prison Break: Budget Crises Drive Reform, but Private Jails Press On, 98 ABA J 44, 51 (Oct 2012).
  • 15. See Mandatory Minimum Penalties in the Federal Criminal Justice System *83 (US Sentencing Commission, Oct 2011), archived at http://perma.cc/LAD3-LGFM.
  • 16. See Part I.C.
  • 17. See Part I.D.
  • 18. See Part I.C (arguing that the institutional placement of the Office of the Pardon Attorney has not only yielded a lower number of grants but has also atrophied the clemency process as a whole).
  • 19. See Part I.C (discussing prosecutorial bias in the Office of the Pardon Attorney). For further discussion of prosecutorial bias in the DOJ, see Rachel E. Barkow, Prosecutorial Administration: Prosecutor Bias and the Department of Justice, 99 Va L Rev 271, 312–19 (2013).
  • 20. A 2004 Sentencing Commission study found that the Guidelines have been largely successful in eliminating interjudge and regional disparities for most types of crimes. See Fifteen Years of Guidelines Sentencing: An Assessment of How Well the Federal Criminal Justice System Is Achieving the Goals of Sentencing Reform *140–43 (US Sentencing Commission, Nov 2004), archived at http://perma.cc/8K5H-236D.
  • 21. The pardon of Marc Rich and the commutation of Scooter Libby’s sentence by Bill Clinton and George W. Bush, respectively, are examples of public scandals that damaged the public perception of the pardon power. See Margaret Colgate Love, The Twilight of the Pardon Power, 100 J Crim L & Crimin 1169, 1195–1204 (2010).
  • 22. See Part I.C. Clinton, for example, ended his presidency in exactly this way: as the end of his term approached, he expressed regret over his anemic exercise of the pardon power and announced 177 new grants on his final day in office. See Love, 100 J Crim L & Crimin at 1195–1200 (cited in note 21).

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