PRESIDENTIAL PARDONS

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Statement of Margaret Colgate Love
Hearing on Presidential Pardons
Senate Judiciary Committee
February 14, 2001

My name is Margaret Love, and I am a lawyer in private practice in Washington. From 1990 to 1997 I served as Pardon Attorney in the Department of Justice, and in that capacity I had primary responsibility for investigating and making recommendations to the President on petitions for pardon and commutation of sentence. For two years prior to that time I served on the personal staff of the Deputy Attorney General, where I oversaw the operation of the Office of the Pardon Attorney. I therefore had firsthand experience with the administration of the pardon power during the administrations of Presidents Bush and Clinton, and I am also familiar with pardoning practices in previous administrations. Finally, I have studied and written about the origins and rationale of the pardon power, and its evolving function in the federal criminal justice system. I described the recent atrophy of the pardon power in an article published last spring. See "Of Pardons, Politics, and Collar Buttons: Reflections on the President's Duty to Be Merciful," 27 Fordham Urban L. Rev. 1483 (2000).

I do not intend to speak to the merits of any particular clemency cases decided by President Clinton in his final weeks in office, nor will I speculate about the way in which particular decisions were reached. Rather, I will comment generally on the way President Clinton's pardoning practices differed from the practices of his predecessors, and offer some suggestions about how the administration of the President's pardon power can in the future be reformed so that it can once again play the role envisioned for it by the Framers of the Constitution.

Historical Background

The Attorney General has been responsible for advising the President on all applications for executive clemency since the middle of the 19th century. The Attorney General's central role in administering the constitutional pardon power reflects and reinforces the link that has historically existed between clemency and the day-to-day operation of the federal criminal justice system. Until quite recently, pardon could be counted on to assure a fair result in individual cases, to signal the President's law enforcement priorities, and to underscore the value of rehabilitation as a goal of the justice system.

In 1898 the first clemency rules promulgated by President McKinley directed all applicants for executive clemency to submit their petitions to the Attorney General, and specified how such applications would be processed within the Justice Department. Over the next hundred years these clemency regulations would be reissued on several occasions, but they remained remarkably similar in each new iteration, providing perhaps our most venerable and consistent framework for governmental decision-making.

Prior to President Clinton's final grants, the number of situations in which pardon was granted without a prior Attorney General investigation and recommendation pursuant to these regulations could be counted on the fingers of one hand. (Notable exceptions are President Ford's 1975 pardon of Richard Nixon, President Reagan's 1981 pardon of two FBI officials being prosecuted for authorized illegal searches, and President Bush's 1992 pardon of six Iran-Contra defendants.)

This is not to say that the President has always followed the advice of his Attorney General, though the records of the Pardon Attorney and my own experience indicate this was usually the case. But the practice gave the President full access to the facts of a case, to the law enforcement perspective on its merits, and to the counsel of a key member of his Cabinet. And, because the Attorney General never divulged the nature of his recommendation, the President could deflect at least some criticism resulting from a particular grant by referring to his reliance on the Attorney General's advice. Until recently, most pardon warrants signed by the President contained a phrase alluding to the Attorney General's recommendation.

This system worked efficiently and for the most part quietly, resulting in over a hundred grants of pardon and commutation almost every year between 1900 and 1980, most of them to ordinary individuals convicted of garden variety crimes. Pardon warrants were issued four or five times a year, and there was no particular increase in grants at the end of an administration. While there was an occasional controversial grant, the only pardon-related scandals during the 20th century involved the rare situation that was handled outside of the normal process (Nixon and Iran-Contra).

Within the White House, the business of reviewing and deciding clemency cases forwarded from the Justice Department became, along with judicial selection, part of the routine housekeeping business of the White House Counsel's office. Until the Clinton administration, this formal and regular process was scrupulously observed by the White House, even after the instance of pardoning began to decline during the administration of President Reagan.

Pardoning Practices During the Clinton Administration

Early in President Clinton's first term there were signs that he might depart from the consistent practice of his predecessors of relying on the Attorney General's advice in clemency matters. For example, the White House undertook to respond itself to inquiries about pardon matters, and many of its written responses included a phrase suggesting that the President considered the Justice Department only one of many potential sources of advice. Also, in contrast to past administrations, the Clinton White House did not act on clemency cases in a regular and timely fashion: no grants at all were issued in four of President Clinton's first five years in office, and only a relative handful of pardons were granted in later years, usually at Christmas. The total number of cases decided did not keep pace with the unprecedented number of new applications each year, so that the case backlog reported by the Pardon Attorney grew steadily larger. When President Clinton departed Washington on January 20, he left behind him well over 3000 pending clemency cases, all of which are now of course the responsibility of the Bush Administration.

The FALN grants in the summer of 1999 demonstrated President Clinton's willingness to have the White House staff play a role in pardon matters entirely independent of the Justice Department. The Department had recommended against clemency for the FALN defendants in December of 1996, while I was still in charge of the pardon program. Later, after my departure, the Department apparently provided the President some less definitive information about the cases. In the end, the President decided to rely upon an investigation undertaken by his White House Counsel in making those controversial grants. This evidently deprived him not only of a full picture of the law enforcement implications of the grants and the likely public reaction to them, it also precluded his being able to allow a political appointee with Cabinet status to take some responsibility for the situation.

Several months before the end of President Clinton's second term, reports began to circulate that there would be a large number of grants at the end of his term. This by itself would be unusual, for pardoning had in the past taken place regularly and consistently throughout the President's term and was not reserved until its end. Even more unusual, some pardon applicants and their lawyers were reportedly given to understand, by Justice Department officials and others, that the White House might be receptive to applications filed there directly, given the short time period remaining before the end of the administration. It was said that President Clinton did not want to leave office having pardoned less generously than any President in history, and only three weeks before leaving office he himself remarked publicly on his frustration with the existing system of Justice Department review.

While one might expect some slippage in the ordinary pardon process at the end of an administration, it was clear to anyone familiar with that process that something unprecedented was about to take place. Even with this advance warning, however, I was surprised at how pardon decisions were reportedly made in the final hours of his tenure, and even more surprised at some of the grants.

Congressional Oversight of the Pardon Power

I do not believe that a constitutional amendment is necessary to ensure responsible use of the pardon power, or to provide for appropriate congressional oversight of its administration. Nor is it desirable to restrict the President's discretion if pardon is to continue to play the operational role in the justice system that it has throughout our history. Future misuse of the power can best be avoided if the President commits himself to the serious and regular exercise of the power, and to reliance on a system for administering the power that inspires public confidence.

A direct congressional role in granting pardons was rejected by the Framers precisely on grounds that this would not be conducive to accountability, consistency or efficiency. I leave it to others to explain in more detail why the Framers thought that the President alone should have the power and duty to bestow public mercy, and why of all his powers they chose to make this one entirely independent of the other branches. I would simply note that giving Congress a role in approving or disapproving pardons is hardly likely to result in more or better ones, and will do little to remove the power from the influence of politics. Indeed, it is likely to exacerbate the situation.

At the same time, I believe that it is entirely appropriate for Congress to take an interest both in particular pardon grants, and in the President's pardoning practices. This is particularly important at a time when the justice system is in transition, as ours now evidently is with an escalating prison population and serious questions being raised about the fairness of the federal sentencing guidelines system. It is important for Congress to heed the messages pardons send, for a justice system whose fairness depends upon the frequent exercise of the pardon power is probably in need of legislative reform. If few pardons are being issued, this may also suggest the desirability of congressional inquiry, for it may portend (as recently evidenced) postponement of the inevitable.

Moreover, congressional oversight can help the President assess how efficiently his power is being administered, and whether it is serving appropriate policy goals. For if the recent episode has taught us anything, it is that the pardon power is a public trust, in whose fair and regular exercise all citizens have an important stake.

I hope that the instant congressional inquiry will reveal that the Justice Department's role in administering the pardon power has been instrumental in keeping the power from being misused or otherwise brought into disrepute, and that the President would be well-advised to mend it, not end it. Many of the concerns raised in connection with the final Clinton pardons are directly attributable to the President's decision not to seek the advice of his Attorney General in connection with making a decision on a number of those grants. More generally, the irregularity and infrequency with which President Clinton acted on pardon applications throughout his two terms was calculated to invite public suspicion about the bona fides of even his most unexceptionable grants. The Clinton administration's short-sighted and ill-advised decision to abandon the longstanding regular system of Justice Department review led directly to the reported free-for-all at the end of his term, and at best an appearance of cronyism and impropriety.

President Clinton's pardoning practices not only resulted in embarrassing grants, they also left the process by which the pardon power has historically been administered in disrepute. President Bush has his work cut out for him in deciding what to do now. If he wishes to restore public confidence in the pardoning process, it will not do for him simply to retool the existing bureaucracy. His more fundamental and important task is to consider what role pardon should play in the federal justice system, and then decide how best this can be accomplished. Hopefully, the otherwise unfortunate circumstances of the final Clinton pardons will offer President Bush an early opportunity to do both.

Reexamination of the Role of Pardon in the Justice System

The critical first question is what official role (if any) forgiveness should play in the federal criminal justice system. Historically, the pardon power has been used to override the law to achieve a just result in individual cases, and also to symbolize official forgiveness. A majority of President Clinton's final grants fall into this category under traditional Justice Department criteria. Given President Bush's stated interested in rehabilitation and redemption, pardon should find a welcome place in his panoply of powers.

Pardon has also been used as a policy tool, to suggest the desirability of particular changes in the law. For example, among the last-minute beneficiaries of Clinton's pardons were 20 men and women convicted of violating the federal drug laws, who walked out of prison by executive fiat on the day Clinton left office. Each of the twenty had served at least six years of sentences ranging from 10 to 85 years, and each had been only peripherally involved in the drug conspiracies for which they had been held accountable. Several of those released had been teenage couriers for crack gangs, and several had been victims of domestic abuse. In some of the cases the sentencing judge and prosecutor had recommended in favor of clemency, the only means of mid-term sentence reduction currently available in the federal justice system. These 20 lucky drug offenders were in many respects typical of the hundreds of inmates serving long mandatory sentences for whom executive clemency holds out the only hope of early release. It would be a shame if the message in these 20 grants were lost in the uproar over the more controversial and irregular grants.

As another example of the way pardons deliver a powerful message to the justice system, many of the beneficiaries of the January 20 grants were seeking restoration of basic legal rights of citizenship that they had lost as a consequence of their conviction. Most had long since served their sentences and were genuinely remorseful, and had patiently waited many years for an official indication that they had paid their debt to society. Few had lawyers, and even fewer had influential friends. Many had encountered legal obstacles to their rehabilitation such as denial of employment and benefits and basic civil rights. There is a legitimate question whether presidential action should be necessary to give relief from these civil disabilities, or whether Congress should not review the laws that so impede an offender's reentry into the community.

Shoring Up the Administration of the Pardon Power

Assuming the desirability of a role for pardon in the justice system, it remains to be decided how the President's pardon power can best be administered to ensure its freedom from suspicion and manipulation. As previously described, the President has historically relied on the advice of his Attorney General in exercising the power, which has for the most part kept it free from political interference and public suspicion, allowing it to play a constructive operational and symbolic role.

Recently, in the absence of guidance from the President, the pardon program has lost its independence and integrity within the Department of Justice. Over the past twenty years it has gradually come to reflect the unforgiving culture of federal prosecutors, and now serves primarily as a conduit for their views. This too seems to have contributed to the January 20 debacle, for it appears that the President may have been dissatisfied with the general approach to clemency cases being taken by his own Justice Department, and in the end simply worked around it using his own White House staff.

In addition, the rising number of federal criminal convictions, the severity of the consequences of conviction, and the absence of alternative relief mechanisms, have combined to create an overwhelming demand for pardon and a crushing workload for the small staff in the Justice Department that is responsible for administering the pardon program. The unprecedented increase in case filings during President Clinton's two terms, coupled with uncertainty about standards for making decisions, has evidently made it impossible for the Department of Justice to maintain even the semblance of fairness and regularity in handling pardon cases. (Whether responsible Justice officials could have played a more helpful role in coordinating and facilitating the pardon process is one of the yet-unsolved mysteries of Clinton's final days.)

The basic structure and staffing of the Department's pardon program has not changed very much in almost a century. If the role of the pardon power is to be reassessed, so too should the system by which it is administered. If I had just one recommendation to make to President Bush, it would be that he direct his Attorney General to resume a personal responsibility for providing advice in pardon matters. As a corollary, I would suggest that the President appoint someone to assist the Attorney General in clemency matters whose courage and compassion are unquestioned, whose independence within the Department is assured, and who can be held politically accountable.

If I could make a second recommendation, I would urge the President not to make it so hard for people to obtain his mercy. Post-sentence pardons should be available to all who are truly remorseful, and who have made a genuine effort to pay their debt to society. As to commutation cases, some fair and systematic way should be found to identify and give relief to individuals serving prison sentences whose length is simply disproportionate to the crime.

Looking Ahead

The message to our new President from the final Clinton pardon grants should be clear: it is time for a thorough-going rethinking of the role of pardon in the federal justice system. This will provide an occasion to review current laws and policies on the consequences of conviction, to determine what reforms may be necessary to lessen the operational need for pardon, and to spell out how compassionate conservatism will work in this most logical venue. This review should involve members of Congress and the judiciary, for their role in the making and interpretation of the law has important implications for the exercise of the pardon power. It should also involve representatives of the media, who have a central role in controlling pardon's exercise.

The message to Congress should also be clear: Rather than seek to restrict and control the President's pardon power, through a constitutional amendment or otherwise, Congress should encourage its generous exercise as a discretionary complement to the legal system, and work to ensure that the laws do not have to depend for their fair operation upon a device that by rights should serve only as a "fail safe."

I predict that we will look back on Bill Clinton's final pardons as his single most important contribution to the federal criminal justice system. For thirty years politicians and bureaucrats alike have been for more interested in feeding the front end of the justice system through enacting more laws, hiring more prosecutors, and building more prisons, than in helping people avoid becoming enmeshed in the system in the first place, creating opportunities for them to earn their way to freedom, or finding ways to encourage their reintegration in to the community. My hope is that, with Bill Clinton's pardons in mind, President Bush and Congress together will be willing to reorder these priorities.

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