Ehrlich’s proposal takes aim at the inequities identified by ProPublica’s investigation into the dispensation of presidential pardons over the past decade. White applicants were nearly four times as likely to receive forgiveness as minorities, the ProPublica analysis showed. African Americans had the worst chances of being pardoned. Applicants with congressional support were three times as likely to receive pardons as those without it.
Ehrlich, who granted clemency to more than 200 convicts while in office from 2003 to 2007, said a pardons program would help disadvantaged applicants and give law school students experience dealing with people seeking a second chance, fostering “a sense of fairness and justice.”
“It would be a multi-pronged approach, including advocacy, public education and training,” said Ehrlich, who works in the D.C. office of King & Spalding, the Atlanta-based law firm. He also envisions the program as a place “where newly elected governors, their general counsels or chiefs of staff would also come and think about the pardon power.”
Ehrlich said he intends to contribute to the program and raise funds for it. He is working to find it a home, looking at Georgetown law school and George Washington University, as well as other institutions in the Washington area.
Gregory B. Craig, who served as President Obama’s first White House counsel, said Ehrlich’s plan could help level the odds for pardon applicants lacking financial means and might spur presidents and governors to dispense more pardons overall.
“Pardons have fallen into disuse,” he said. “They have deteriorated and need to be restored.”
Craig advocated for pardon reform while in the White House, assigning a group of lawyers to design a process that would make pardons more attainable. Among the options discussed was support for a law school clinic.
But none of the pardon reforms formulated early in the administration have advanced. Kathryn Ruemmler, who became Obama’s third White House counsel in June, was among the lawyers who worked with Craig on them. Obama has turned down more pardon applicants, 1,019, and pardoned fewer, 22 — two of whom were minorities — than any modern president at this point in an administration.
The Justice Department’s Office of the Pardon Attorney assesses each pardon candidate and makes recommendations to the president. Obama has followed them in nearly every case, as did President George W. Bush. ProPublica found that the pardon office recommends white candidates almost four times as often as minorities. Bush pardoned 189 applicants. Only seven were African American.
Craig said lawyers in the Obama administration developed plans to remove the pardons process from the Justice Department but have not acted on them. At the state level, pardons are often handled by an independent board similar to a parole board.
Pardons, Ehrlich said, must be “race neutral. Every element should be neutral, but for the guilt or innocence and justice.”
Ehrlich’s proposal is modeled in part after the country’s only law school clinic for commutations, started a year ago at the University of St. Thomas law school in Minneapolis. The commutations program is run by Mark Osler, a former federal prosecutor who has argued numerous cases before the Supreme Court.
Osler’s students travel around the country interviewing federal prisoners, examining their criminal cases and filing applications on their behalf. Because pardon seekers must wait five years after completing their sentences before applying for presidential pardons, a law clinic to help them might face fewer hurdles, Osler said.
“With pardons, you would have the advantage of not sending students into prisons,” he said.
Ehrlich’s program would put law students to work much in the way Osler has, but it also would host training seminars for governors and their staff members, along with an annual symposium on pardons.
Although he supports former Massachusetts governor Mitt Romney’s presidential bid, Ehrlich urges governors not to emulate Romney’s record in Massachusetts — zero pardons — and to use their pardon authority boldly, even though it can have a political cost.
“You are able to do justice, to order justice unilaterally, which is an extraordinary power that needs to be treated with greater respect and carefully implemented,” he said.
ProPublica is an independent, nonprofit newsroom that produces investigative journalism in the public interest.