PRESIDENTIAL PARDONS

Wednesday, February 28, 2001

My name is Margaret Love, and I am a lawyer in private practice in Washington, D.C. 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 from persons convicted of federal offenses. 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 over a ten year period during the administrations of Presidents Bush and Clinton. I am also familiar with pardoning practices in previous administrations. Finally, I have studied and written about the evolving function of pardon in the federal criminal justice system. 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 here to the merits of any particular clemency decisions made by President Clinton in his final weeks in office. Nor will I comment on the way in which pardon matters were evidently handled in the waning days of the Clinton Administration, either in the Department of Justice or the White House. Rather, I want to talk generally about the role pardon has played in the federal justice system over the years, and how the administration of the pardon power by the Justice Department has facilitated that role. I will also describe how President Clinton's pardoning practices compared to the practices of his predecessors, based on my personal experience. Finally, I will make some suggestions about how the administration of the 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.

Others testifying here today will review the origins and rationale of the pardon power, and particular instances of its exercise over the years. I expect they will have suggestions for avoiding the irregularities and abuse that marked so many of the final Clinton pardons, including the enactment of legislative controls over the administration of the power. My own experience leads me to recommend a more affirmative approach, because I would not want to discourage whatever inclinations our new President may have to return to the generous pardoning practices of his predecessors.

As I see it, the real issue raised by this episode relates not so much to President Clinton's peculiar notion of his pardoning responsibilities, but rather to the role that pardon should play in the modern day criminal justice system. I was accountable for the day-to-day administration of the pardon power at a time when its routine use had been neglected by several successive Presidents, and its function trivialized within the Justice Department. This process of atrophy began well before President Clinton took office, though it was accelerated during his tenure. As pardon became less and less available to ordinary people through established channels, the scene was set for the extraordinary events of January 20. In many respects, therefore, the final Clinton pardons were an accident waiting to happen.

Without coming to grips with the central question of pardon's place in the justice system, it is fruitless to consider limiting the President's power by constitutional amendment, or imposing bureaucratic burdens on its exercise by statute. In any event, it is highly unlikely that future Presidents will need to be restrained in their use of the power. More likely, they will need to be encouraged.

Rather than wring our hands over stopgap remedies for a problem that is unlikely to recur, we should instead reenact the debate over the pardon power that took place at the Constitutional Convention in 1787. Only then will we be in a position to choose whether pardon should be restored to its historic place as an integral part of the federal justice system, or whether it should be relegated to the status of a vestigial perk of office that, if impossible to get rid of, must somehow be contained. If the outcome of this debate in 2001 is the same as it was in 1787, it will be clear that the President must be trusted to exercise the power without legislative constraint. If it is not, then perhaps we should think about doing away with the pardon power altogether.

The Administration of the Pardon Power in Historical Context

From the beginning of the Republic, the President's constitutional power to pardon has been exercised and administered as an integral part of the federal criminal justice system. While we are most familiar with the notorious and colorful grants of clemency that served overtly political purposes, dozens of ordinary individuals were granted relief less visibly each year from excessive prison sentences or oppressive civil disabilities. At a time when the justice system was relatively simple and inflexible, pardon afforded almost the only way for federal offenders to obtain review of their convictions and early release from prison, and restoration of their legal rights of citizenship.

Since the middle of the 19th century, the Attorney General has been responsible for advising the President on all requests for executive clemency. The Attorney General's central role in administering the constitutional pardon power reflected and reinforced the link between clemency and the ordinary 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 the past fifty years 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. (These are President Ford's 1975 pardon of Richard Nixon, President Reagan's 1981 pardon of two FBI officials who had authorized illegal surveillance of radicals, 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 signed by the President 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 unpopular grant, the only federal pardon-related scandals during the 20th century involved the rare situations that were handled outside of the normal Justice Department process.

For example, President Truman was criticized for seven end-of-term pardons that were issued without any recommendation from the Justice Department, all but one of which went to current or former government officials who had served their sentences. The resulting outcry prompted President Eisenhower's Attorney General Herbert Brownell to announce a "goldfish bowl" policy of making pardon grants public, as well as the names of persons recommending them, returning to the policy of disclosure in effect prior to the New Deal. See Walter Trohan, "Bridges Seeks to End Secrecy in U.S. Pardons," New York Herald Tribune, August 30, 1953, at p.10.

Within the White House, the business of reviewing clemency recommendations 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 vary his predecessors' consistent practice of relying on the Attorney General's advice in clemency matters. For example, the White House undertook to respond itself to correspondence and 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 handful of pardons were granted in later years, usually at Christmas. The total number of cases disposed of 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 each year. (When President Clinton departed Washington on January 20, he left behind him nearly 4000 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 without withdrawing the original negative recommendation. In the end, in making those controversial grants the President avowedly relied entirely upon the advice of his White House Counsel, advice that in turn was based upon a White House investigation of the cases. 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. The FALN grants foreshadowed the endgame.

Six 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. See, e.g., Don Van Natta Jr. and Marc Lacey, "Access Proved Vital in the Race to Secure a Pardon from Clinton," New York Times, February 25, 2001, at A1; Kurt Eichenwald and Michael Moss, "Rising Number Sought Pardons in Last 2 Years," New York Times, January 29, 2001, at A1. It was said that President Clinton did not want to leave office having pardoned less generously than any President in history. Only three weeks before leaving office, the President remarked publicly on his frustration with the existing system of Justice Department review, which he felt was not producing a sufficient number of pardon candidates for his consideration. He expressed a particular interest in granting pardons to people without "money or power or influence."

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. As more and more details have emerged in the ensuing weeks, it is clear that President Clinton conceived of his pardoning responsibilities in a very unusual way. Former Attorney General Dick Thornburgh recently analogized the Clinton pardon decision-making process to "a Middle Eastern bazaar."

Congressional Oversight of the Pardon Power

It is understandable that Congress would want to take some action to avoid a repetition of the final Clinton pardon grants. But I would caution against drawing any hasty conclusions about necessary repairs without first becoming thoroughly familiar with the machinery itself. The pardon power does not exist in isolation, but functions as an integral part of the criminal justice system. Thus the process by which pardon is administered cannot be tweaked without consequence for the justice system as a whole. Hastily developed cures may make the patient sicker. See, e.g., S. 2042, The Pardon Attorney Reform and Integrity Act, 106th Cong., 2d Sess. (2000).

I do not believe that legislative regulation of the pardon power is necessary to ensure its responsible use, or appropriate congressional oversight of its administration. As James Iredell of North Carolina remarked at the Constitutional Convention of 1787, a President is best restrained in his exercise of the pardon power by the risk of "damnation of his fame to all future ages." Future misuse of the pardon power is particularly unlikely in view of the in terrorem example of the President Clinton's final grants.

Nor is such regulation desirable, if pardon is to play the role the Framers envisioned for it. To begin with, the Framers rejected a direct congressional role in granting pardons precisely because they understood that this would not be conducive to accountability, consistency or efficiency in the exercise of the pardon power. 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.

By the same token, legislation requiring the President to follow particular procedures, to consult certain interest groups, to observe a particular policy of disclosure, or to explain his reasons for granting or denying relief, would similarly frustrate the Framers' intent. Even if the President were willing to accede to the imposition of such bureaucratic burdens on the power, they would transform it beyond recognition. As James Iredell observed, "When a power is acknowledged to be necessary, it is a very dangerous thing to prescribe limits to it."

Rather than seeking to inhibit and control the use of the pardon power, Congress might take an entirely different tack and encourage the President to make a renewed commitment to its generous and creative exercise. Rather than seeking to condition and limit the help in pardon matters the President can expect from his own appointees, Congress might trust him to act wisely and courageously, and be advised by the results.

In this regard, I believe it is entirely appropriate for Congress to inform itself about particular pardon grants, and about the President's pardoning practices. This is particularly important at a time when so many questions are being raised about the fairness of the justice system, relating in particular to guidelines sentencing and the escalating prison population. It is important for Congress (and the courts) 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 reform. If few pardons are being issued, this may also suggest the desirability of congressional inquiry, for it may portend postponement of the inevitable. In this fashion, the pardon power helps the legislature do its job better -- as evidenced by recent developments in New York State.

Moreover, congressional oversight can help the President assess how efficiently his power is being administered, and whether it is serving appropriate policy goals. I expect that the instant congressional inquiry will reveal that the Justice Department's role in administering the pardon power has been instrumental over the years in keeping the power from being misused or otherwise brought into disrepute. 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 the resultant appearance of cronyism and influence peddling.

At the same time, however, it appears that the Justice Department advisory process was by-passed at least in part because it was not delivering the kind of advice the President wanted. Absent a predicate decision about what role pardon should play in the administration's criminal justice agenda, the Justice Department has no standards to guide its consideration of particular cases. Hopefully, the otherwise unfortunate circumstances of the final Clinton pardons will offer President Bush and his Attorney General an early opportunity and the incentive to address these issues.

Reexamination of the Role of Pardon in the Justice System

The critical first question for President Bush is what official role (if any) pardon 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 to recognize and encourage personal rehabilitation. Many of President Clinton's final grants appear to be fully consistent with one or more of these objectives. Given President Bush's stated interest in forgiveness and redemption, pardon should find a welcome place in his panoply of powers.

Pardon has also been used as a policy tool, to signal 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.

Another example of the way pardons can deliver a powerful public message is in recognizing criminal justice success stories. Many of the beneficiaries of the January 20 grants were seeking relief from the stigma of conviction, as well as restoration of basic legal rights of citizenship. Most had long since served their sentences and returned to productive lives in their communities, 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 licenses and public benefits, and a few were seeking to regain firearms privileges. There is a legitimate question whether personal action by the President should be necessary to give relief from the many laws that impede an offender's reentry into the community.

To the extent the President uses the pardon power generously and purposefully, and allows himself to be held politically accountable in this regard, it is very unlikely that he will abuse it.

Shoring Up the Administration of the Pardon Power

If President Bush chooses to renew the presidency's historic commitment to a regular and responsible exercise of the pardon power, he will then have to decide how best to implement it. It is important to ensure consistency with the President's criminal justice agenda, but it is also important to allow pardon to play its intended role as a check on other parts of the justice system. Finally, it is important to safeguard it from private manipulation and public suspicion. As previously described, the President has historically relied on his Attorney General's administration of the power to accomplish these objectives.

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 is perceived primarily as a conduit for their views. This too seems to have contributed to the January 20 debacle, for it appears that President Clinton may have been dissatisfied with the general approach to clemency cases being taken by his own Justice Department, and in the end decided simply to work 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 the Clinton Administration'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 in this regard, it would be that he ask his Attorney General to resume 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. He will want to make sure that every person responsible for reviewing pardon cases does so with an open mind and an open heart.

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 must 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 in turn 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 seeking 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. It should keep track of the President's pardons not for partisan advantage, but for the helpful signals they send about the state of the law, and work to ensure that the justice system does not have to depend for its fair operation upon a device that should operate 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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