November 23, 2010
No Country for Second Chances
By GEORGE LARDNER Jr.
An Op-Ed from the New York Times
LAST February, after long delays, the Justice Department sent President Obama hundreds of recommendations on requested pardons, each one carefully selected for a quick decision under standards for clemency that presidents have followed for decades.
Under these standards, no pardon can be recommended unless a petitioner has been out of prison and law-abiding for at least five years.
Most of the recommendations President Obama received called for a no, but some, according to people who recently left the administration, strongly favored a pardon. Nevertheless, Mr. Obama has yet to judge a single person worthy of his grace.
If by tomorrow he pardons no one but turkeys, President Obama will have the most sluggish record in this area of any American president except George W. Bush. He’ll have outdone George Washington, who granted a pardon after 669 days. And he will also have outlasted Bill Clinton, who took three days longer than Washington to grant his first pardons. If Mr. Obama waits until Christmas Eve, he will make even his immediate predecessor, who waited until Dec. 23, 2002, seem more generous.
Last month, President Obama turned down 605 requests for commutations — from prisoners who wanted their sentences shortened — and 71 for pardons.
It’s difficult to understand why the president has been so unwilling to grant any clemency. As someone who has taught constitutional law, he knows that the founders gave him, and him alone, the power “to grant reprieves and pardons for offenses against the United States except in cases of impeachment.” It is likely that he also knows that a disproportionate number of federal prisoners are black, that mandatory sentencing guidelines have left many of them with excessive sentences and that at least a few of them deserve clemency, whether they’ve asked for it or not.
The president has not only the power but also the responsibility to grant clemency when it is warranted. A pardon can help a worthy former prisoner qualify for a job or a license. But mainly it restores the person’s civil rights, including the right to vote.
What could be holding up Mr. Obama? There is no question that the federal pardon process is flawed. It has been handled by a tiny staff in the Justice Department’s office of the pardon attorney, which has worked for years in a climate of official hostility to any grants of clemency. (As Samuel Morison, a lawyer who worked in the pardon attorney’s office, recently wrote, the view inside the Justice Department is that the pardon attorney should mainly “defend the department’s prosecutorial prerogatives.”) Recommendations for a pardon or a commutation require a great deal of investigation; in most cases, the pardon attorney’s easiest course is to advise that the president say no.
Under Bill Clinton and George W. Bush together, the Justice Department received more than 14,000 petitions for commutations, but recommended only 13 to the White House. The current backlog of petitions for both commutations and pardons is tremendous, close to 4,000.
During President Obama’s first year in office, Gregory Craig, who was then White House counsel, recognized that the system wasn’t working. He talked with Justice Department officials about establishing a bipartisan commission or some quasi-independent office that would take over the pardon recommendations from the Justice Department. Mr. Craig’s ideas met with little enthusiasm.
The White House has tried to explain the current foot-dragging by saying that the president has asked for an updated set of standards for granting clemency. While improvements could be made, the truth is that the standards are time-tested — and fine, at least, for handling most petitions. President Obama needs only to do his job.
George Lardner Jr., an associate at the Center for the Study of the Presidency, is working on a history of the presidential pardon power.
Source URL: http://www.nytimes.com/2010/11/24/opinion/24lardner.html?nl=todaysheadlines&emc=a212