I Beg Your Pardon:
Presidential pardons historically have provided a critical safety valve in the federal criminal justice system. Today, though, that is no longer true.
Throughout American history, Presidents issued pardons in a measurable chunk of federal criminal cases. (Statistics available here and here.) Back when only a few thousand federal criminal cases were charged each year, Presidents generally exercised their pardon power in hundreds of cases. In the early 19th century, for example, James Monroe pardoned 419 people. In the early 20th century, Woodrow Wilson pardoned 2,480 people. On a percentage basis, pardons have been becoming rarer over time. Even in the 1970s and 1980s, however, presidents have averaged about 400 or 500 pardons per Term. And of course, the federal prison population in absolute terms has gone way up since that time: according to Bureau of Prison statistics, the federal prison population has jumped from 20,000 in 1970 to about 150,000 today.
Under George W. Bush, however, the pardon process essentially has come to a standstill. The Associated Press reports that the total number of pardons that George W. Bush has granted in his first Term in office is currently 31, jumping all the way from 27 with the addition of 4 new pardons announced yesterday. The only two Presidents who completed a Term in office with fewer pardons than Bush are the first two Presidents — George Washington and John Adams — and that was only because at the time there was no one around to pardon. Further, the four pardons granted yesterday are entirely symbolic. They all involve misdemeanor charges that resulted in probation, and in each case the probation was served and the case closed many years ago — and in some cases many decades ago. (The convictions were obtained in 1969, 1980, 1981, and 1990.) [UPDATE: It turns out that while all 4 crimes were minor and resulted only in probation, the convictions technically were felony convictions, not misdemeanors.]
Presidential pardons can be politically risky; just ask Bill Clinton about pardoning Marc Rich. But it's the President's job to do the right thing regardless of what the pollsters say. There are currently 150,000 people in federal prisons, with another 50,000 or so on probation. Could it be that none of them deserve Presidential pardons?
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Throughout American history, Presidents issued pardons in a measurable chunk of federal criminal cases. (Statistics available here and here.) Back when only a few thousand federal criminal cases were charged each year, Presidents generally exercised their pardon power in hundreds of cases. In the early 19th century, for example, James Monroe pardoned 419 people. In the early 20th century, Woodrow Wilson pardoned 2,480 people. On a percentage basis, pardons have been becoming rarer over time. Even in the 1970s and 1980s, however, presidents have averaged about 400 or 500 pardons per Term. And of course, the federal prison population in absolute terms has gone way up since that time: according to Bureau of Prison statistics, the federal prison population has jumped from 20,000 in 1970 to about 150,000 today.
Under George W. Bush, however, the pardon process essentially has come to a standstill. The Associated Press reports that the total number of pardons that George W. Bush has granted in his first Term in office is currently 31, jumping all the way from 27 with the addition of 4 new pardons announced yesterday. The only two Presidents who completed a Term in office with fewer pardons than Bush are the first two Presidents — George Washington and John Adams — and that was only because at the time there was no one around to pardon. Further, the four pardons granted yesterday are entirely symbolic. They all involve misdemeanor charges that resulted in probation, and in each case the probation was served and the case closed many years ago — and in some cases many decades ago. (The convictions were obtained in 1969, 1980, 1981, and 1990.) [UPDATE: It turns out that while all 4 crimes were minor and resulted only in probation, the convictions technically were felony convictions, not misdemeanors.]
Presidential pardons can be politically risky; just ask Bill Clinton about pardoning Marc Rich. But it's the President's job to do the right thing regardless of what the pollsters say. There are currently 150,000 people in federal prisons, with another 50,000 or so on probation. Could it be that none of them deserve Presidential pardons?
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The article states:
So there are four Presidents who have pardoned less people than President George W. Bush.
No, for if none of these 200,000 persons deserved a pardon, it would mean the federal criminal justice system were infallible. And everyone knows that the only infallible criminal justice system is in Texas.
Perhaps President Bush will grant some more pardons in the last hours of his second term as President Clinton did. But we should hope that he would have better judgment in doing it. Marc Rich was ineligible for pardon because he never served any sentence and he never admitted guilt for his crimes. Now we have found out that he was mixed up with the food-for-oil scandal.
That has to be a joke, right? This is from the President who has asserted that he has the right to detain US citizens on US soil indefinitely and with NO PROCESS WHATSOEVER. A proposition that was rejected by every Justice on the Supreme Court with the exception of Thomas's absurd --- dare I say embarssing --- opinion in Hamdi which implied that even Congress may not have the right to restrict the President's power to detain US citizens on US soil during wartime (read the first and second paragraphs of his dissent where he says "arguably" Congress could provide citizens with process).
I mean, Orin, what do you expect from a President who has asserted such power?
Sort of -- the other two, Harrison and Garfield, both died in office after weeks, making it hard for them to exercise any powers, much less the pardon power.
In addition, surely President Bush is entitled to a vast amount of political discretion in these matters. Pardons are politically risky (ask Gerald Ford or Bill Clinton). Knocking a few years off a harsh drug sentence shouldn't endanger social security reform. One wonders also if previous administrations' pardon totals weren't somewhat inflated by cronyism; it's very hard to believe they weren't. With the 24 hour news cycle, Bush simply can't pardon his buddies like previous presidents could (and some of us would like to believe he wouldn't do such things anyway).
I just don't believe that this issue lends itself to the kind of empirical statistical analysis Prof. Kerr is attempting.
That and research into worthy cases is non-trivial. Bush honestly has had better things to do.
It's heartening, though, to see that he's not following in his father's footsteps. Perhaps he's waiting until Christmas Eve, when the entire national press corps is on vacation, to pardon his political cronies. Query: can he pardon himself for his war crimes?
Personally what I find troubling is that we had so many previous presidents who were so willing to set aside what 12 people thought was right, and what would have likely been help up by judges in different levels of appelite courts.
I'm not sure how the federal pardon power works. While the power to grant clemency is constitutionally invested in the president, I am sure he doesn't see every application. Someone in the justice department must examine the applications and then forward them to the president.
The bottom line is that unless there are deserving candidates whom one can identify, these criticisms are rather hollow. Once that happens, then it becomes a matter of explaining the story to the public. If it *is* politically untenable to use the pardon power very much right now, the way you change that is by altering the political climate. Not many people spoke about pardons during the campaign (i.e. 0 that I recall) so it's obviously not an issue right now.
"Early in President Clinton’s first term there were signs that he might depart from the consistent practice of his predecessors of relying on the Attorney General’s advice in clemency matters. For example, the White House undertook to respond itself to inquiries about pardon matters, and many of its written responses included a phrase suggesting that the President considered the Justice Department only one of many potential sources of advice. Also, in contrast to past administrations, the Clinton White House did not act on clemency cases in a regular and timely fashion: no grants at all were issued in four of President Clinton’s first five years in office, and only a relative handful of pardons were granted in later years, usually at Christmas. The total number of cases decided did not keep pace with the unprecedented number of new applications each year, so that the case backlog reported by the Pardon Attorney grew steadily larger. When President Clinton departed Washington on January 20, he left behind him well over 3000 pending clemency cases, all of which are now of course the responsibility of the Bush Administration....
Several months before the end of President Clinton’s second term, reports began to circulate that there would be a large number of grants at the end of his term. This by itself would be unusual, for pardoning had in the past taken place regularly and consistently throughout the President’s term and was not reserved until its end. Even more unusual, some pardon applicants and their lawyers were reportedly given to understand, by Justice Department officials and others, that the White House might be receptive to applications filed there directly, given the short time period remaining before the end of the administration. It was said that President Clinton did not want to leave office having pardoned less generously than any President in history, and only three weeks before leaving office he himself remarked publicly on his frustration with the existing system of Justice Department review.
While one might expect some slippage in the ordinary pardon process at the end of an administration, it was clear to anyone familiar with that process that something unprecedented was about to take place."
SOURCE: Statement of Margaret Colgate Love [Pardon Attorney, 1990-97], Hearing on Presidential Pardons, Senate Judiciary Committee, February 14, 2001
After hearing of Mr. Fischer's comments immediately following 9/11, I personally wouldn't be in too much of a rush to do him any favors. Ever.
The first of these may be (as a percentage, anyway) rarer than formerly because of increased protections for those on trial, and there are already judicial ways of overturning such convictions. The second one also be rarer, due in part to sentencing guidelines. (I leave aside the question of whether mandatory drug sentences are unreasonable: they're imposed by law and a president shouldn't use the pardon power just to undo a law signed by a previous president.) I don't have any feel for the number of people in the third category who have actually sought pardons, so it's impossible to tell if Bush is too strict or others were too liberal.
It would also be interesting to know the reasons offered by former presidents for pardons. My strong hunch is that most of those pardoned have powerful and politically-connected supporters. That's likely to carry more weight than the inherent justice of the pleas. In any event, I'd be very cautious about broadly recommending more pardons, at least without a lot more information: the temptation to do so for political rather than moral reasons can be hard to resist.
By the way, for an earlier smarmy remark, a pardon is for people who ARE guilty of a crime or offense. There is a guy here in Connecticut who does not want a pardon as he maintains his innocence.
So let me turn the question around on you all, what guilty person, or fugitive likely to be found guilty in the fed system do you think is worthy of a pardon and why?
Interestingly, in the eary history of presidential pardons, they were viewed legally as completely erasing both punishment and guilt, placing the pardonee in a position of complete restoration as if the infraction had never occurred. More recently, however, pardons have been viewed as merely exempting the beneficiary from punishment arising out of the matters that are the subject of the pardon.
For those of you who'd like more, take a look at http://jurist.law.pitt.edu/pardons.htm
SC PD
What was his felony conviction all about?
-dk
http://www.usdoj.gov/pardon/pardon_instructions.htm
Erring on the side of clemency, for a small percentage of federal convicts, after petition and review, seems at worst a trivial harm, and as others have mentioned a great possible benefit.
Guys a career criminal who was pretty much past it i.e. in his late 30's early 40's. Again....he didn't spend all his free time in church. The point is that the local cops who KNOW the guy don't charge him (he could have been charged under state law), and then the feds come in a year later and pop him to help their numbers. He's allready done his time for the prior stuff and it shouldn't have any bearing imho on the current charges. What's he supposed to do? Tell person X, "hey, you might as well shoot me 'cuz I sure don't want to catch a federal rap for felon in possession"? (I should point out that the incident report has the police officer confirming the self defense theory for carrying. They knew person X shot defendant before)
Necessity was either charged or requested to be charged and then denied can't remember. (The problem w/it was that it was more applicable to the drive-by than the pistol)
Hope that's a little clearer.
What they should do is create a clemency board to function independently from the president and therefore insulate it from political pressures. But even this might not work. The ATF used to have a program that gave people back to the right to bear arms, which is one of the few rights that a federal offender cannot get back from their state clemency office. But the Congress cut off funding to the program because too many people were getting their gun rights back and then committing crimes. It did produce an interesting Supreme Court case, US v. Bean.
Make that #4. Clinton and Marc Rich.
Pardons are part of the justice system and have been for two centuries, a last chance to rectify injustice. Bush isn't interested in that however. Clinton messed things up with his misuse; Bush went on to misrule.
But during a time of war, we should not forget what we are fighting for. Hate to use that cliche but it's true. There is a lot of injustice in the federal criminal system, and people from all sides of the political spectrum who deal with that system on a day to day basis see that injustice. For one good example, see Judge Cassell's recent opinion on mandatory minimums. Now, you may not agree that there is a problem in President's Bush's nonuse of the pardon power, and that is fine. But it is no answer to just say, "hey we's fightin' a war, we shouldn' worry abou it. . . ."
Bean, could he get his gun rights back?
There is a reason most pardons take place the last day of a Presidency. Besides, like someone else said, Bush has better things to do with his time.