Margaret Colgate Love served as U.S. pardon attorney between 1990 and 1997, and currently represents applicants for presidential pardon.
Happily, the widespread outrage over Trump’s pardoning practices presents an opportunity to consider what role this extraordinary constitutional power should play in the modern federal justice system, as well as how it should be managed going forward.
Most proposals for reforming pardon focus on the process by which the president receives recommendations. They include stripping the Justice Department of the advisory role it has historically played and establishing the sort of independent clemency commission that exists in many states.
But focusing on the pardon process misses the mark. Before we start rearranging deck chairs, we should be asking more basic questions about what (if any) role pardon should play in the ordinary operation of the federal justice system.
The core problem that has led to pardon’s abuse is that the justice system has relied too heavily on an authority that is inherently arbitrary and unfair.
Thus, the law makes the president exclusively responsible — through his pardon power — for shortening most federal prison sentences and relieving the collateral consequences of conviction — functions that in most states are now routinely performed by judges and agencies under statutory schemes. For example, a presidential pardon is the only way a person convicted of a federal felony can qualify for many business and professional licenses, or regain the right to possess firearms. Indeed, I have been told — and my own practice would confirm — that a desire to regain firearms rights accounts for nearly half of the pardon applications filed. It is beyond absurd to make the president a one-person gun-licensing bureau for people convicted of nonviolent federal crimes who want to go hunting again.
Relying on pardon to temper the severity of the law might have been appropriate in an age when members of Congress obtained private bills to benefit specific constituents and courts relied on ancient common law writs to enforce their orders. But a modern justice system cannot run efficiently or fairly on such antique and unreliable remedies, of which pardon is indisputably one.
I do not advocate curtailing the president’s pardon power, and the Biden administration can decide how it wishes to administer that power. I hope it will restore at least the appearance of fairness and regularity to the way applications from ordinary people are considered (even if the process will continue to function, as it always has, more or less like a lottery). But I also hope reform will not include creation of a new bureaucracy with all the trappings of the administrative state, which will do nothing to alleviate skyrocketing caseloads, long delays and partisan maneuvering. Giving the pardon power more work to do and more people to do it is precisely the opposite of what is called for.
The alternative to systematic reliance on pardoning is what Daniel J. Freed described 20 years ago as “the more demanding road toward democratic reform.” The incoming administration should urge Congress to offload many of pardon’s exclusive functions onto the legal system by enacting robust statutory relief mechanisms, for those in prison and for those who have fully served their sentences, as a majority of states have done in recent years.
In other words, Congress should enact laws to provide alternative ways of handling much of the routine business that is currently overwhelming the pardon process, ideally using the federal courts. It has already begun this work in the 2018 First Step Act, which gives federal prisoners the ability to go back to court to seek reduction of their sentences.
If the pardon process were not bogged down by thousands of petitions from people who simply want to restore lost rights or improve their employment prospects, the president would be free to use the constitutional power in a far more expansive and policy-oriented manner to encourage reform of the justice system, to counter its overreaches and to tell good news about its operation through stories of successful rehabilitation.
In the end, Trump’s abuse of his pardon power could be seen as a blessing in disguise if it provides the opportunity to wean the federal criminal justice system from its dependence upon presidential action for routine relief. Only if freed from its more workaday responsibilities can pardon play the constructive role the Framers intended.