Sunday, December 01, 2013

More on pardons

Sandy Levinson

Today's NYTimes has a number of responses to my Monday letter on presidential pardons (itself reprinted), as well as my final thoughts.  I continue to find it significant that no one, whether those writing letters to the Times or Balkinization discussants, has actually defended Obama's (or Bush's) hesitation to exercise the constitutionally-granted pardon power.  Jeffrey Crouch, who has written an interesting book on the pardon power, has a letter repeating his concerns about abuses of that power, including, especially, George H.W. Bush's "last Christmas in Washington" pardons of a number of people who were being investigated for their role in "Iran gate" and their potential ability to implicate Bush himself.  He also pardoned Elliot Abrams, who had lied to Congress; that pardon presumably helped rehabilitate Mr. Abrams and make possible his service in the administration of George W. Bush.  I conclude my "on-line" response--the print version had to be edited for reasons of space--with the following:

Finally, Professors Crouch and Ruckman set out the conflicting arguments about the use of the presidential pardon power. All such powers are subject to misuse.
The question is whether we fear “sins of commission” like the Marc Rich pardon more than the “sins of omission” of presidential heartlessness.
UPDATE:  The Washington Post has a strong editorial  criticizing the President for his stinginess in granting pardons (or commutations).  He is, indeed, the stingiest president in modern history.  (He has, however, pardoned ten turkeys during his five years in office.)  Interestingly enough, one of the Post's polls based on the obviously unscientific responses of their online readers indicates that 53% "oppose" the proposition that the President should issue more pardons and only 47% "support" it.  I realize that those who write letters to the NYTimes or respond to Balkinization posts are no more scientific a sample, but this heartless majority nonetheless surprises me unless it is based on the premise that Obama should do nothing at all, period. 


Sandy's letter, the letters in response and Sandy's responses thereto are together useful in addressing Sandy's and the concerns of others. Hopefully these may serve to arouse the public on the unfairness of the criminal justice systems of both the federal government and the states, to be followed with a meaningful dialog. But will the public get behind pardon/commutation reform? The ACLU's role over the years is to be applauded. Recall when Pres. Bush-41 referred to Gov. Dukakis as a "card carrying ACLU member"? This inspired me to become a member. For economic reasons in my retirement, I did not review my membership a few years ago. But I am still proud of ACLU even if I do not agree with everything it has done and does. ACLU deserves support in the name of justice and fairness.

Perhaps in time Sandy's efforts may bear fruit with Pres. Obama's Administration. I hope so. Obama has a lot on his plate requiring serious prioritization. While I don't have a pipeline to Obama, I think he is aware of Sandy's efforts. There are three (3) more years for Obama to work on his pardon/commutation powers.

By the way, I note from Sandy's letter that he is currently residing in Brookline. Welcome. Give me a call. I'm in the book.

Check out this website for the DOJ pardon process:

Also, with a little Googling, one can learn of lawyers who are prepared, for a fee I assume, to assist in seeking a pardon.

I wonder how many of the crack-convicted with maximum required sentences which going forward are not proper per SCOTUS (but not retroactive) have taken advantage of the DOJ pardon process. And I further wonder how many indigent defendants that may not have been well represented by government provided counsel have taken advantage of the DOJ pardon process.

Perhaps there are empirical studies of those submitting pardon/commutation applications under the DOJ pardon process. Of course economics - and politics - plays a role in going through that process. Is federal funding provided to indigent prisoners to apply for a pardon/commutation? Or is there a matter of inequality involved?

While more pardons/commutations should be issues, perhaps the problem is with the DOJ pardon process. But the truly underlying problem is the criminal justice system at both federal and state levels. The Warren Court addressed rights of criminal defendants but post-Brown v. Bd. of Educ. the GOP/conservative Southern Strategy and law and order code words contributed to the unfairness of the criminal justice system, at both federal and state levels.

Does any President have the unilateral power to correct the criminal justice system that has developed especially following Nixon's election in 1968? If so perhaps Sandy could spell it out in constitutional - and political - terms rather than in effect accusing Obama of heartlessness.

Sandy's reference to "(He has, however, pardoned ten turkeys during his five years in office.) "

should be weighed by what Pres. Obama said at the 2013 turkey-pardon event:

"The office of the presidency — the most powerful position in the world — brings with it many awesome and solemn responsibilities. This is not one of them. (Laughter.) But the White House Turkey Pardon is a great tradition. And I know Malia loves it — as does Sasha."

Yes, the tradition is silly. So be it. But it doesn't add to the substantive debate.


As President Jed Barlett noted, there really is no executive power to pardon a turkey. When CJ tried to get him to pardon a second turkey (I think Obama said both turkeys were going to be saved here), he drafted the bird. Constitutional dictator!

Yes, the goal should be to determine why so few pardons are done.

Today's Boston Globe has James Carroll's column "The wounds that never quite heal - In Ireland, as in the US, forgiveness and reconciliation are not so simple" ithat ncludes this:

"The US prison system - 'the new Jim Crow' in law professor Michelle Alexander's phrase - continues a traditional subjugation of blacks."

If Pres. Obama were to grant pardons/commutations comparable to some of his predecessors, that would constitute a drop in the bucket compared to what Prof. Alexander has written about. I ask Sandy, which is the more serious problem, the small number of pardons/commutations granted or the US prison system? Can the presidential pardon power be exercised in such a way that the US prison system could be reformed? Obama may unilaterally grant pardons/commutations but both Congress and the courts would have to be involved with the reform of the US prison system. And what are the chances of that politically?

The entire criminal justice system, and its reliance on long sentences, needs to be rethought. But, as Margaret Love suggested in her response to my initial Times letter, Obama could, by pardoning (or, importantly, commuting) a number of obvious victims of our wretched excesses (including, importantly,those sentenced by conservative judges who protested they had no option to be more merciful), he could generate a wide-scale public conversation that Eric Holder has been unable to. It's called exercising presidential leadership and using the bully pulpit.

Can we quantify "a number of [such] obvious victims ... ?" Perhaps SCOTUS' decision not to provide retroactive relief may have been because of a large number. It's fairly common knowledge that many of such victims are African-Americans. One of the responses to Sandy pointed out the potential problems if Obama were to pardon/commute African-American prisoners who received such mandatory sentences. Rush Limbaugh continues to race bait Obama including by falling victim recently to a hoax. Consider the recent RNC Rosa Parks tweet on her ending racism.

Obama has an obligation for three more years that has been threatened by GOP/conservatives on just about everything (although I haven't heard them complain about Obama's small pardon/commutation numbers). Presidential leadership and the bully pulpit as suggested by Sandy would only add to the current political dysfunction. Perhaps a public conversation may follow on the US prison system. But I don't think it will be very pretty under current circumstances.

At a recent immigration speech by Obama he was interrupted by a young man who said that Obama as President could resolve the immigration issue. Obama let the young man talk and then explained how he as President was not so empowered. Yes, Obama is using the bully pulpit on immigration. Perhaps Obama should use the bully pulpit more on racial issues. But the GOP/conservatives playbook is to thwart whatever Obama tries to do. But Obama has to govern, he has to prioritize so many problems foreign and domestic on his plate. Pardons/commutations may not be high on that list. And the politics of racism will surely prevent US prison system reform at this time. I don't know if Prof. Alexander follows this Blog, but her views would be of interest.

Here's a link to Phillip Smiths' 4/9/13 "Celebrities Urge Obama Forward on Drugs, Sentencing Reform":

Reference is made to the pardon/commutation power of the President.

I don't recall much of a public dialog since that date.

Here's a link to a 126 page report "An Offer You Can't Refuse - How Us Federal Prosecutors Force Drug Defendants to Plead Guilty":


I have not down loaded the report but have read a post at Huffington on it. Only 3% go to trial. And the sentences of those who go to trial and are found guilty are enormous in comparison to plea deals.

The Colbert Report last night included guest Bryan Stevenson of "The Equal Justice Initiative" that's worth a look-see.

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Pardons are obviously tricky business. But, I wonder if some of the negative reaction you mention is due to the high profile controversy of presidential pardons (Bush and Clinton).

We are a nation that believes in forgiveness and redemption. I think there is a valuable and righteous purpose of the pardon so long as it is used appropriately.

My mother was incarcerated a couple of times and had several drug offenses before turning her life around and becoming a minister and helping to rehabilitate other users and so forth. She wound up eventually earning a state level pardon.

For her it was a sign that she had made amends to society.


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As President Jed Barlett noted, there really is no executive power to pardon a turkey. When CJ tried to get him to pardon a second turkey (I think Obama said both turkeys were going to be saved here), he drafted the bird. Constitutional dictator!FUT 14 Coins
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