EDITORIAL New York Times: The Quality of Mercy, Strained
January 5, 2013
Barack Obama has rarely exercised presidential clemency to grant pardons and
restore the civil rights of convicted criminals, a power that Abraham
Lincoln, Franklin D. Roosevelt and other presidents used with dedication to
correct injustices in the legal system.
Mr. Obama has pardoned only 22 people, fewer than any president since the
modern era of pardons began in 1900. He has granted a pardon for 1 out of
every 50 applicants, compared with 1 out of 33 for George W. Bush, 1 of 8
for Bill Clinton and 1 of 3 for Ronald Reagan.
In part, this has been a reaction to Presidents Clinton and Bush, both of
whom compromised the pardon power with cronyism. But the basic problem may
be that Mr. Obama allowed himself to be crippled by the pardon process
itself. That process is managed by the Justice Department, which receives
applications for clemency and makes recommendations to the White House.
Presumably, the president is willing to use acts of clemency to right the
wrongs of the sentencing and judicial systems. Yet the same cannot be said
of the Justice Department, which has a prosecutorial mind-set. It has
undermined the process with huge backlogs and delays, and sometimes views
pardons as an affront to federal efforts to fight crime.
Over the years, too, the process appears to have been tainted by racial
bias. As ProPublica documented in an analysis of Bush administration
pardons, whites benefited from pardons four times as often as members of
minority groups, even though blacks alone made up 38 percent of the federal
prison population. That report prompted a continuing Justice Department
review by its Bureau of Justice Statistics.
In addition, the department’s pardon office is run by a Bush-appointed
lawyer, Ronald L. Rodgers, whose professional conduct has been excoriated by
the Justice Department’s own inspector general and referred to the deputy
attorney general for possible administrative action. In 2008, in
transmitting a proposed pardon to the White House, Mr. Rodgers
misrepresented the views of both the United States attorney who made the
recommendation and the judge who seconded it. The prisoner was denied a
One simple and immediate way for the president to reinvigorate the pardons
process is to choose a person of stature and energy — say, a federal judge —
to steward his administration’s pardon duties. At the same time, he can end
the department’s conflict of interest by replacing the pardons office with a
new bipartisan commission under the White House’s aegis, giving it ample
resources and real independence.
There is much good to be done, for the sake of justice as well as mercy.
Many federal inmates are serving egregiously long prison terms under
mandatory minimum sentencing schemes. Mr. Obama could use the pardon power
to grant clemency to some long-term prisoners, until Congress reforms those
laws. He could also use that power to spare some federal offenders who have
completed their prison terms from the legal restrictions that have kept them
from getting jobs, places to live, business licenses and the chance to vote.
And he could address the unfortunate consequences of the nation’s unfair
drug sentencing laws. As of November 2011, there were at least 5,000 federal
prisoners serving sentences for crack cocaine who deserved consideration for
reduced sentences after a major reform of federal drug laws in 2010. Those
prisoners were sentenced when the penalty for crimes involving crack was far
more severe than for crimes involving powder cocaine; in 2010, Congress
reduced that difference, but the older sentences remained unchanged.
In 2003, Justice Anthony Kennedy observed that the pardon power had been
“drained of its moral force.” The Constitution grants the president alone
the power to grant “pardons for offenses against the United States.” It is
time for Mr. Obama to vigorously exercise this august and singular
JUSTICE FOR JONATHAN POLLARD
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