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 it comes to the pardon power, President Obama is still more talk than action. According to the most recent Justice Department data, he has granted only one pardon for every 29 petitions that have come before him, fewer than any of the past seven presidents. Last week, he signed 22 commutations, but his record on those is even more dismal because he has such a staggering backlog, the biggest of any president in U.S. history. It is a backlog that he and his administration invited.
But you wouldn’t know that from his rhetoric. In a recent interview with Buzzfeed, the president said, “We’ve revamped the pardoning office in the Justice Department because, traditionally, we weren’t reaching a lot of nonviolent offenders who, if they received a pardon, perhaps would be in a better position to get employed.” Then at a March 6 town hall meeting in South Carolina, he said that he was taking a “new approach” to pardons after noticing that he “wasn’t really getting a lot of recommendations” from the Justice Department. In his most recent remarks, during a March 20 interview with the Huffington Post, he said that with the revamp, “we’re now getting much more representative applicants.” What he didn’t say is that he has let those applications pile higher and higher.
The Justice Department named a new pardon attorney in November, and her overburdened office now has more lawyers than before — but if that was the “revamping,” it has yet to produce significant results. Despite receiving unprecedented numbers of petitions, Obama has granted only 64 pardons and 43 commutations. Only six other presidents have been less merciful, and most of those served a single term or less.
Without counting a program called Clemency Project 2014, which makes his record worse, Obama has granted just one of every 779 commutation petitions addressed to him. Every president since Richard Nixon (who approved one of every 15 commutation petitions) did better. (Data for earlier presidents were either not compiled or are incomplete.)
Obama’s “new approach” to pardons remains just a promise. More than a year ago, the Justice Department announced that Clemency Project 2014 would aim to find federal prisoners who deserved a commutation, which reduces the severity of a sentence. But pardons, which forgive applicants for their crimes and restore their civil rights, were excluded.
This drive for more commutations has become a disaster, notwithstanding last week’s action. When the project was announced in early 2014, then-Deputy Attorney General James M. Cole asked the legal profession for help in composing “effective and appropriate” petitions for inmates serving harsher sentences than they would have received “if convicted of precisely the same offenses today.”
Since then, The Post reports, more than 35,000 inmates — some 16 percent of the federal prison population — have asked for commutations under the initiative. And since then, Obama has commuted just 34 sentences.
More than 1,000 lawyers at more than 300 law firms have offered to participate in Clemency Project 2014. Yet little more than 5,000 of the 35,000 applications have been assigned to a lawyer. Even when that’s done, getting a petition ready for the next stop — the pardon attorney’s office — can be quite difficult. A petitioner’s lawyer needs pre-sentencing reports and other records such as those that might deal with previous crimes. Compiling all of the paperwork the government seems to want can be discouraging.
The unduly restrictive rules spelled out by Cole last spring are an even larger problem. It should not be too difficult for prisoners to show they got a stiffer sentence than they would have received today, but that’s not enough. Under the criteria, a prisoner must have served at least 10 years, have no significant criminal history and have had no involvement with gangs, cartels or organized crime. The program also penalizes prisoners who previously asked for commutations by placing Clemency Project 2014 petitioners in line ahead of them.
Just as troublesome is the fact that the critical decisions about whether the rules have been met have been farmed out to private organizations — the ACLU, Families Against Mandatory Minimums, the American Bar Association and the National Association of Criminal Defense Lawyers. These are fine groups, but the pardon power is supposed to be reserved for the president, and saying no, which these private agencies can do, is as much an exercise of that power as saying yes.
To Obama’s credit, he wrote a letter to the 22 inmates whose sentences he commuted. All of them had been convicted of nonviolent drug offenses, in many cases under punitive rules no longer in effect. But there must be hundreds if not thousands more who are just as qualified. It was a nice try by the White House to say last week that Obama’s commutation record was now better, numerically, than George W. Bush’s. What it didn’t say was that Bush’s record on commutations (11) was one of the worst in history and that he granted almost three times as many pardons as Obama has (188 to 64).
President Obama keeps referring to the Justice Department as though it were in charge of the process while he remains a frustrated bystander. He conceded in South Carolina that “we have a pretty strict set of criteria” for grants of clemency, but he spoke as though he was handcuffed by those criteria (when, in fact, he isn’t). Criticisms of the pardon process usually focus on the prosecutorial mindset of officials at Justice and blame them for rejecting too many deserving applications. It’s time for the president to take the heat and stop letting Justice be the scapegoat.