Reforming the Federal Clemency Process

COMMENTARY Crime and Justice

Reforming the Federal Clemency Process

Jun 13th, 2017 2 min read
COMMENTARY BY
Paul Larkin

Senior Legal Research Fellow

Paul J. Larkin Jr. directs The Heritage Foundation’s project to counter abuse of the criminal law, particularly at the federal level.
President Trump should set aside time three or four weekends each year to consider clemency petitions and announce his decisions straight away. iStock

Key Takeaways

To borrow from John Milton, Western civilization has always urged people in authority to “temper Justice with Mercie.”

Unfortunately, the clemency process no longer works as well as the Framers hoped.

Part of the problem is that presidents have granted clemency too infrequently.

To borrow from John Milton, Western civilization has always urged people in authority to “temper Justice with Mercie.” The Framers of our Constitution took that message to heart and gave the president that prerogative in Article II.

Presidents have used that power for more than 200 years. Unfortunately, the clemency process no longer works as well as the Framers hoped.

Part of the problem is that presidents have granted clemency too infrequently. President Obama shortened the terms of imprisonment for numerous drug offenders, but neither he nor his recent predecessors pardoned offenders at the rate seen for most of our history.

President Trump can remedy that shortcoming by making clemency decisions on a regular basis. He should set aside time three or four weekends each year to consider clemency petitions and announce his decisions straight away. That would allow him to avoid the impression that presidents pardon more turkeys than people.

Part of the problem is that presidents have used their authority dishonorably, to repay old political debts or make new political allies. President Clinton is Exhibit A (and B).

He offered conditional commutations to members of a Puerto Rican terrorist group, very possibly to enlist the support of the Puerto Rican community for Hillary Clinton’s U.S. Senate race in New York and Vice President Al Gore’s presidential campaign. In his last 24 hours in office, Mr. Clinton also granted clemency to cronies: people with White House connections or contributors to his party or presidential library. That tawdry practice dishonors a noble institution.

Mr. Trump can solve that problem by returning clemency to its intended use: to express forgiveness on the nation’s behalf and wipe the slate clean for the average person, rather than a crony or celebrity, who has admitted his wrongdoing and turned his life around.

But there are two final steps that Mr. Trump should take: He should transfer the clemency process from the Justice Department to a new clemency office in the White House, and he should designate Vice President Mike Pence as his principal clemency adviser.

The president relies on the Justice Department to filter out ineligible applicants and recommend which eligible ones should receive clemency. The pardon attorney reviews applications and submits his recommendations, not to the White House but to the deputy attorney general. Therein, as the Bard said, lies the rub.

The deputy attorney general supervises the criminal prosecutions brought by every U.S. attorney’s office and the criminal sections of the Justice Department. He therefore labors under an actual or apparent conflict of interest when it comes to clemency. He might be unlikely to look neutrally and dispassionately on an offender’s claim that he should never have been charged with a crime; that he is innocent; that there was a prejudicial error in his case; that his sentence was unduly severe; or that he should be forgiven because he is a changed man.

In any other decision-making process, a neutral party would play the role now performed by the department. The department should be free to offer a recommendation, of course, but it should not be able to strangle a reasonable application in the cradle. The president needs unbiased recommendations, and the nation is entitled to think that he gets them. Transferring the clemency process to the White House would offer assurance that those goals will be achieved.

Making the vice president the principal clemency adviser helps achieve those goals and makes sense for other reasons too. He is a constitutional officer with the stature necessary to referee disputes between the clemency office and Justice Department. His West Wing office offers tremendous access to the president. Moreover, in this case of this administration at least, he has experience: Mr. Pence made clemency decisions as a governor.

Simple reforms, but important ones. Mr. Trump would benefit applicants, the public, the presidency and himself if he adopts them.

This piece originally appeared in The Washington Times