Rachel E. Barkow is a professor at New York University Law School and faculty director of the university’s Center on the Administration of Criminal Law. Mark Osler is law professor at the University of St. Thomas in Minnesota.
In the run-up to Thanksgiving, it was a sure thing that a turkey would get an efficient reprieve from President Obama. But that’s only because the turkey did not have to go through the normal pardon process. If it had, it would likely have waited more than four years and have had several layers of government bureaucrats nit-picking its case. The federal clemency process — for humans, at least — is broken, and Obama should act now to fix it for the benefit of his and future administrations.
Since the 1980s, presidents have utterly failed to use their constitutional pardon power as a systemic check on federal laws and prosecutors that go too far. As a series of ProPublica reports published in The Post revealed in 2011, recent presidents grant pardons and commutations rarely and arbitrarily, largely giving relief only when it is requested by members of Congress or other influential people. Obama has been among the worst of the lot.
Given a bipartisan shift in public sentiment against mass incarceration, Obama seems aware that there are times when a pardon is appropriate. In January, his administration began rolling out a temporary program, called Clemency Project 2014, to consider cases where nonviolent offenders are serving sentences of at least 10 years but would not be similarly sentenced today because of changes in the law. Deputy Attorney General James Cole asked private lawyers and nongovernmental organizations to identify cases that meet the announced criteria. But such a short-term program does nothing to fix the problematic regular clemency process that will survive this administration unless action is taken.
One may well ask why the president needed private help at all, since it is his job to identify meritorious cases for clemency. The framers of the Constitution viewed the pardon process as a critical presidential power — it sits alongside the power to act as commander in chief — for checking overbroad laws and correcting excessive sentences. Obama should have just fixed the underlying problems.
What is broken is no mystery. The key gatekeepers for this process are in the Justice Department — the same agency that prosecutes federal crimes. Unsurprisingly, the department has been reluctant to second-guess its own decisions and rarely recommends that the White House approve a clemency petition. Moreover, each petition must pass through as many as seven levels of review prior to approval, and many of those doing the reviewing (such as the deputy attorney general and the White House counsel) have plates already full with other duties. That’s why the average review time for approved clemency petitions in this administration has been about four years, according to P.S. Ruckman Jr., a political science professor who edits the Pardon Power blog.
It’s easy to envision a better method. As in countless other areas of law, from communications and securities regulation to establishing sentencing guidelines, a dedicated agency comprising experts could address the problem efficiently and effectively. The president should appoint a bipartisan commission of Democrats and Republicans with expertise in criminal law to consider all applications and track data on recidivism and other outcomes. The agency can work with the president’s reentry council to coordinate prisoners’ transitions back to civil society. And because the commission would be politically balanced, the president would not need to worry about being exposed to Willie Horton-style attacks, should a convict commit some new crime after being freed; these will be cases that people of all political stripes agreed deserved relief. President Gerald Ford used this device in 1974 when he created a temporary board to quickly process about 21,000 Vietnam-era draft evasion and deserter cases. One reason we know the Ford plan was a political success is because so few people remember it.
With a small but dedicated staff, such an agency would shrink the relevant levels of review to just three. There is a simple reason that states almost uniformly use such boards rather than the federal approach of sending the review through layers of prosecutors: It works.
Such a common-sense reform would provide the president with a lasting legacy that his successors would surely appreciate: a pardon process that works not just for turkeys on Thanksgiving but for everyone, all year long.