George Lardner Jr., a former Post reporter, is scholar in residence at American University’s Investigative Reporting Workshop. P.S. Ruckman Jr. is a professor of political science and editor of the Pardon Power Blog.
When the Obama administration’s new acting pardon attorney, Bob Zauzmer, arrived on the job last month, he ran headlong into a backlog of more than 9,000 clemency petitions awaiting a decision on whether they deserve the president’s consideration. Many of those petitions were the byproduct of the announcement of Clemency Project 2014, which was established by the Justice Department — to great fanfare — to process additional applications from federal prisoners seeking reductions of unjustifiably long drug sentences.
Zauzmer has his work cut out for him — it has been widely reported that his predecessor, Deborah Leff, stepped down in January over frustrations with a lack of resources.
Was the administration ever serious about Clemency 2014? The rules for commutation requests even reaching the overburdened pardons office under the initiative are inexcusably discouraging. The worst is that inmates must have served at least 10 years of their sentence. Other rules state they must not have “a significant criminal history” (whatever that means); they must be nonviolent, low-level offenders; and they must be serving a sentence harsher than they would have gotten if convicted of the same offense today. Those who fall “outside of this initiative,” according to the Justice Department, can still seek clemency under the old rules if their applications are “especially meritorious.”
The results of this great, unprecedented effort? Obama has a clemency record comparable to the least merciful presidents in history. He has granted just 70 pardons, the lowest mark for any full-term president since John Adams, and 187 commutations of sentence. Meanwhile, 1,629 pardon petitions have been denied (more than five of the previous six presidents), as well as 8,123 requests for commutations (a new record). An additional 3,444 requests have been “closed without presidential action.”
Obama’s record is all the more deplorable because of assurances that he has made and that have been made on his behalf. On April 21, 2014, then-Attorney General Eric H. Holder Jr. encouraged federal prisoners to seek relief, noting that, despite sentencing reforms Obama signed into law in 2010, there were “still too many people . . . sentenced under the old regime” who needed attention. Holder said the White House had “indicated” that it wanted to “consider additional clemency applications to restore a degree of justice, fairness, and proportionality for deserving individuals who do not pose a threat to public safety.” In addition, the Justice Department was “committed to recommending as many qualified applicants as possible for reduced sentences.” Clemency Project 2014 has, however, become a bureaucratic disaster, assigned to volunteer lawyers and law students with little if any experience in the pitfalls of dealing with the federal criminal justice system.
In June 2014, the Hill reported that Obama was pushing forward with a review of the clemency system. In March 2015, the president told the Huffington Post that the pardon process had been “revamped” and that he would be exercising the pardon power “more aggressively.” Seven months later, he told the Marshall Project that clemency applications were being processed “more effectively” and a “steady ramp up” was in play. The Post recently reported that some additional grants are expected in the coming weeks, but “big” is hardly a word that appropriately describes what has gone on to date.
By now, Obama could have simply signed an amnesty proclamation covering everyone qualifying for lesser sentences. He could have taken the pardon process out of the Justice Department and given the job to a commission or an independent agency that would give him a degree of political cover if anything went wrong. Just such a move had been proposed by his first White House counsel, Gregory Craig.
Regardless, seven neglectful years allow for few pretty endings. If current patterns persist, Obama will go down as one of the most merciless presidents in history. On the other hand, even a moderate display of concern about clemency, with a few grants here and there, will almost certainly be viewed (and dubbed) as “a last-minute gesture,” granted to avoid any serious political accountability.
Any such grants will also be greeted with suspicion and exceptional scrutiny by the media and political opponents. Impressions left by any scandalous reports will be much deeper than if the president had simply been more merciful more evenly across the term, and not left everyone to wonder: “Why are these particular people being pardoned? And why are they being pardoned now? Why are they any more special than the thousands of applicants deemed unworthy before them?”
Having waited almost two years before granting his first presidential pardon, Obama would probably do as much harm to the general reputation of the pardon power as to his personal legacy with a controversial, Bill Clintonesque splurge in clemency just before leaving office. Sadly, many deserving recipients would be besmirched as well. This is the bed the president has made for himself.