Mark Osler is the Robert and Marion Short professor of law at the University of St. Thomas in St. Paul, Minn.
It’s painful to watch. Worse, it mocks the raw truth that the federal clemency system is completely broken. While those two turkeys receive their pardons, nearly 14,000 clemency petitions sit in a sludgy backlog. Many of the federal inmates who have followed the rules, assembled documents, poured out their hearts in petitions and worked hours at a prison job just to pay for the stamps on the envelope have waited for years in that queue.
I know some of them. With the students in my law school clinic, I have helped people with clemency petitions for almost a decade. For most of that time, I was deluged with mail from incarcerated people who wanted us to help them prepare commutation petitions. (Commutations shorten a sentence but don’t affect the conviction the way a pardon does.) Many of them are well-deserving; it was rewarding to tell their stories of rehabilitation and hope.
Those have tapered off, and now most of my mail is from people who have already filed a petition. They want to know what is happening, and what else they can do. Too many of them have unrealistic plans — often, and very specifically, the plan is that Kim Kardashian West will help them. Or, as one man put it “I’ll take any Kardashian.” It is true that Kardashian West advocated for Alice Marie Johnson, and that Johnson did get clemency from President Trump. But that is a sample size of precisely one, while thousands wait.
There is a deep sadness in all this: the graceless show of “pardoning” turkeys; the endless pile of files somewhere; the bizarre, tragic and wrong belief that a central constitutional power of the presidency has been delegated to a single well-meaning celebrity.
The problem of federal clemency can be fixed, but neither President Barack Obama nor Trump has answered calls to do so. It is a bipartisan failing rooted in our usual inattention to process as a driver of outcomes.
The problem is simple to understand. The Trump administration inherited a clemency review process that is seemingly designed to result in good cases not getting to the president. Bureaucrats in the Office of the Pardon Attorney — which is buried deep in the Justice Department — review the cases when petitions are received. Part of their job is to solicit the view of local prosecutors, the very people who sought the sentence in the first place, and Justice Department standards direct that the views of those prosecutors be given “considerable weight” in determining a recommendation. From the start, there is a thumb on the scale. That reviewer passes the case to the pardon attorney, who passes it to an official in the office of the deputy attorney general, who passes it to the deputy attorney general himself. Then it goes to a staffer in the White House counsel’s office, then to her boss and finally to the president.
There is no evidence this system is working at all. It is a pipe with seven valves that all must be opened at once by seven busy people with very different interests; we shouldn’t be surprised that nothing is flowing through.
Meanwhile, a more informal clemency process has emerged. This one is simple: A television channel, Fox News, makes recommendations directly to Trump, an avid watcher. Most recently, two military officers received full pardons and another had his rank restored via this route. Previous recipients of Fox News-Trump clemency have included Joe Arpaio, I. Lewis “Scooter” Libby and Dinesh D’Souza. I don’t begrudge any of them the break they received (though others do). Alexander Hamilton was right to call clemency “the benign prerogative”; at worst, it produces mercy. My argument is for more clemency, not less. The problem is that we have two systems, one formal and one informal, that both fail to deliver the level of mercy our history of retribution and over-incarceration requires.
And then there is that third process that provides mercy only to poultry. Thanksgiving has a certain purity of purpose that makes it special. Gratitude for the bounty we enjoy in the United States is a common impulse that cuts across the many lines that divide our society. It is not yet Black Friday; instead, there is the gentle beauty of a meal shared with those we love. The turkey pardon does not fit with the elegant simplicity of the holiday, even as it mocks the many who wait for clemency.
This year, let’s eat the turkeys and free the prisoners.