Rethinking the President’s Pardon Power
Margaret Colgate Love (The writer was U.S. Pardon Attorney in the Justice Department from 1990 to 1997).
The Scooter Libby commutation confirms that this president regards the constitutional pardon power as an entirely personal prerogative, accessible to friends but not necessarily to ordinary people. Even if one agrees that Libby’s 30-month prison sentence was “excessively harsh” for “a first-time offender with years of exceptional public service,” there are scores – perhaps hundreds – of others doing hard time in federal prison who are similarly situated. Libby’s case is distinguishable only by his unique access to the President and to the exceptional relief that the pardon power affords.
How is it tolerable, in a democracy, for the president to be able to reach into the machinery of law enforcement to pluck out one of his favorites, while ordinary people have no hope of similar recourse?
The good news about the Libby commutation is that it provides an opportunity to consider whether the pardon power has a legitimate role in the criminal justice system. We did not take this opportunity when it was presented at the end of the Clinton Administration, but it is important to take it now. We may decide that pardon has outlived whatever usefulness it once had, and should be consigned to the dustbin of history where it can make no more mischief. We may decide that pardon is useful only if limited by law, as it is in many of the states. We may decide that pardon simply needs to be understood better and managed more responsibly.
Presidential Pardoning in Historical Context
The notion of pardon as a species of high-level gift-giving is one to which the Framers did not subscribe. They were intensely practical men, who conceived of the pardon power as an instrument of statecraft, and would not otherwise have given it to the president. They understood that the pardon power would be distrusted by the people and might from time to time be abused, but they still considered it a necessary and functional part of their carefully calibrated system of checks and balances. In particular, they contemplated a justice-based role for pardon, as well as a political one. For most of our history that is how the pardon power was understood, and the president considered pardoning a routine part of his job.
From the early years of the Republic the president’s pardoning power was closely tied to the criminal justice system, and was available to ordinary people as well as to those who were politically connected. In the middle of the 19th century, the President began to rely upon the Attorney General for advice in clemency matters, and in 1893 President McKinley directed by executive order that all requests for clemency be presented to him only after a full investigation and recommendation by the Attorney General. That executive order has never been rescinded. Making the Justice Department responsible for administering the pardon power was a wise decision, for it gave the president a measure of protection, both from politics and mistakes. He was able to exercise the power in a considered and meaningful fashion, and the Justice Department was able to administer it with a remarkable degree of regularity. Harnessed to the operational needs of the Justice Department, the pardon power was used to correct mistakes and injustices, and to conclude a successful prosecution with a measure of forgiveness.
Until about 25 years ago, hundreds of pardons and commutations were granted each year, without fanfare and without scandal, often at the request of the prosecutor or the judge, to ordinary people convicted of garden variety crimes, as well as to more notorious petitioners like Jimmy Hoffa, Patty Hearst, and Marvin Mandel. While it would be naïve to suggest that special pleading outside of regular channels never entered into the decision to pardon or commute a sentence, irregular grants rarely gave rise to scandal as long as ordinary people were perceived to have access to the president’s mercy. When pardons and commutations were granted upon recommendation of the Attorney General, they had the all-important appearance of regularity and fairness.
Things began to change during the Reagan Administration, when the pardon program in the Justice Department lost its independent status and became an extension of a tough-on-crime law enforcement agenda. While applications for pardon and sentence commutation were processed more or less regularly through the 1980s, few were approved. Under Clinton, the pardon decision-making process became irregular and unreliable, trivialized by the prosecutorial establishment within the Department and ignored by the White House. The truth is that the faulty decision-making that produced the spate of grants on Clinton’s last day in office is attributable as much to the Justice Department’s neglect as to the president’s penchant for self-indulgence.
President Bush vowed at the beginning of his term to adhere strictly to the Justice Department’s review process, and until the Libby grant he had done so. But he has been even less generous and more risk-averse than any president in the last 100 years, including his father.
A Place for Pardon
Presidential pardons, once granted quite generously, have become elusive and difficult to come by. Yet federal law offers no other way of overcoming legal disabilities and the stigma of a criminal record. Particularly since 9/11, the collateral consequences of conviction have multiplied, making it increasingly difficult for people with a criminal record to get and keep jobs, and otherwise to put their past behind them. There is no expungement or sealing of records in the federal system, and no other way of certifying an individual’s rehabilitation.
Sentence commutations have become even rarer than post-sentence pardons, particularly since the advent of guidelines sentencing, though once they too were granted with a fair degree of regularity. A sharp reduction in the number of commutations after 1986 coincided with the abolition of parole and the atrophy of other early release mechanisms in the federal sentencing system. At the same time, perhaps predictably, the Justice Department experienced a dramatic increase in the number of petitions from federal prisoners, many serving long mandatory terms. Even knowing the tremendous odds against them, prisoners remain hopeful and their petitions continue to pour in. But no matter how sympathetic, commutation requests are rarely recommended favorably by Justice. There are several reasons for this, including a reluctance to second-guess legislative policy choices on sentencing, a commitment to tough and inflexible law enforcement practices, and a lack of presidential interest in the pardon program.
Rethinking the Pardon Power
Assuming that our next president will want to find a better way to understand and manage this unruly power, there are three questions he or she should be asking.
First, should pardons and sentence commutations be made available to ordinary people on a regular basis? If so, what standards should be applied to judge their worth?
Second, who should be responsible for administering the pardon program, both for shaping pardon policy and for staffing individual cases? The pardon power has been administered by the Justice Department for many years, but it may be timely to rethink this arrangement in light of the inherent conflict with the Department’s responsibility for prosecuting cases. The legitimacy of the president’s use of the power depends importantly on how accessible his mercy is to ordinary people.
Third, should the president use the pardon power intentionally as a tool of public policy, to advance his criminal justice agenda with other branches of government, with his own appointees, and with the public? The Libby case has reminded us how powerfully the president can speak to his troops from this bully pulpit. His criticism of Mr. Libby’s prison sentence volumes to prosecutors and courts looking at other similar cases, gives defenders new arguments for leniency, and may lead the United States Sentencing Commission to reconsider its guidelines. While pardon cannot substitute for law reform, it can test the need for it, encourage and guide it.
There are many who believe that it is time to consider new approaches to criminal prosecution and sentencing, to reduce our reliance on incarceration and end the racial disparities resulting from our law enforcement practices. If the pardon power is to play a useful role in this law reform effort, as it has in past eras, public confidence in it must be restored. The criteria that presently exist in the Justice Department’s policies are perfectly good ones. What needs improvement is the perceived fairness of the pardon process, the regularity and frequency of pardon grants, and above all the president’s commitment to using the power in an intentional and generous fashion.
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