Home inFocus Limiting our Government; Expanding our Freedom (Fall 2018) Reforming Federal Clemency

Reforming Federal Clemency

Paul J. Larkin Jr. Fall 2018
A watch tower at a California State Prison. (Photo: Joseph Sohm)

Clemency—the ability to forgive wrongdoing or mitigate punishment—is a revered aspect of presidential authority. It ordinarily takes one of five forms:

• A pardon forgives an offender and erases his legal penalties;

• A commutation lessens the punishment but leaves a conviction intact;

• A remission returns all or some of the fine or forfeiture attached to a conviction; 

• A reprieve delays the imposition of punishment; and

• Amnesty grants clemency to a large number of offenders.

The English Crown exercised the power to grant clemency at common law, the Colonists brought that authority with them to their new home, and the Framers wrote it into our Constitution as the Article II Pardon Clause. In its classic form, the clemency power allows a chief executive to say to an offender, “I forgive you. Go and sin no more.”

Yet, presidents do not make clemency decisions in isolation. Over time, a bureaucracy has developed to advise the president about who should receive clemency, and what type they should receive.  That bureaucracy, however, is now hampering the effectiveness of clemency as an instrument of justice and mercy.  It should be reformed.

Beginning with George Washington, presidents have largely relied on the U.S. attorney general for advice (although Abraham Lincoln was famous for considering pleas directly from soldiers and their families), and Thomas Jefferson began the practice of consulting the U.S. attorney who prosecuted the applicant.  Following Congress’s creation of the U.S. Department of Justice in 1870, the attorney general assigned a “Clerk of Pardons,” later renamed the “Pardon Attorney,” to investigate petitions and assist him.  No longer just one lawyer, the Office of the Pardon Attorney is now staffed by several lawyers and FBI agents, who conduct any necessary investigations.  In the late 1970s, Attorney General Griffin Bell delegated advice-giving responsibility to the deputy attorney general.

For the last 40 years, that official has determined the Justice Department’s recommendations to the president.  With the White House staff reviewing a clemency petition yet again, clemency applications must traverse a fairly sizeable bureaucracy before reaching the president’s desk.

Who Decides?

The biggest criticism of the federal clemency process, however, is not its bureaucratic nature. No, the complaint cuts deeper. Article II gives the president clemency authority over federal offenses, which means that the Justice Department prosecuted or investigated every clemency applicant, whether he was already convicted of, is now charged with, or is under investigation for a federal crime. 

Moreover, the deputy attorney general is responsible for supervising all criminal prosecutions brought by the 93 U.S. Attorneys and the Justice Department’s Criminal Division (along with a small number of criminal cases brought by other divisions). The result is that management of the clemency process is in the hands of the petitioner’s former (and perhaps present) adversary. In an unknown number of cases, the current scheme forces one cadre of government officials to criticize their colleagues for creating an injustice or for allowing one to stand. That creates a problem. Few Justice Department officials, the argument goes, would be willing to recommend that the president exonerate or grant leniency to someone whom a colleague has convicted and sent to prison.  Like police officers, prosecutors have their own version of the “thin blue line.”

Worsening the situation is that the deputy attorney general has the authority not only to decide what recommendation to offer the president, but also when and whether to offer one at all. There is no requirement that the Justice Department submit its recommendation to the White House within any period of time. Indeed, in some cases prisoners who asked only to cross the River Styx outside the prison walls died before the department acted on their petitions. The upshot is that the Justice Department could strangle in the cradle any application that might cast the department in an unfavorable light, and the public would never be the wiser.  That is not how we want the railroad to be run.

It is one thing, as President Jefferson realized, for the president to ask for the opinion of the government lawyers responsible for seeing to an applicant’s conviction.  Those lawyers might know more about the applicant than anyone else, including the judge who imposed sentence.  But it is another thing to trust the management of the clemency process to an organization with a built-in bias against any argument that the applicant, in fact, is innocent; that he or she should not have been prosecuted for some other reason, such as the prosecutor’s personal animus; that a prejudicial error occurred at trial that the courts failed to rectify; that his sentence is excessive; or that, perhaps due to his post-conviction conduct, he should be forgiven and his punishment lifted. That creates an actual or apparent conflict of interest on the part of the Justice Department.

Appearances matter. Elsewhere, within or outside of the government, we would hope that a neutral, disinterested party, one who has not already taken a firm position about a person’s entitlement to some benefit, would be responsible for handling the review and recommendation process.  Yet, that is not true in the most important category of cases, those where a person’s liberty is at stake.

Office of Executive Clemency?

Various scholars have criticized that aspect of the federal clemency process.  Clemency cannot fulfill its noble purposes, critics maintain, as long as Justice Department officials manage the clemency bureaucracy.  To reclaim the important role that clemency should play, critics submit, the president should restructure the clemency system by taking it out of the department and giving it a new home.

Two alternative residences have been proposed.  One would have the president create a multi-member clemency advisory board to supply him with general policies or standards, a list of factors to consider when making decisions, or recommendations about specific parties. It would effectively enable the president to create a parallel version of the Office of the Pardon Attorney, perhaps called the Office of Executive Clemency, to be managed out of the White House.

A committee has several advantages. It would avoid the actual or apparent conflict of interest now plaguing the Justice Department; it would enable the president to obtain recommendations from a range of people—former law enforcement officials, defense attorneys, members of the clergy, criminologists, and so forth—representative of the variegated opinions of the American public.  A favorable committee recommendation would offer the president the political cover he or she would want were a clemency recipient to reoffend, particularly by committing a heinous crime—the nightmare that every chief executive fears whenever signing a clemency warrant. 

Of course, there are downsides to creating a collegial advice-giving body. Interest groups will vie for seats on the committee, with the losers complaining in the news media about being shut out of the process. Members could use the board’s status as a platform to criticize the president’s clemency philosophy, practices, or individual decisions. Members could also act like legislators and trade votes for favored candidates, with the process degenerating into a spoils system as members campaign for certain types of offenses (e.g., street crimes vs. white collar crimes vs. drug crimes), offenders (e.g., ones identified by race, ethnicity, income-level, and so forth), or constituents (e.g., rural vs. suburban vs. urban offenders). Leaks, a concern for any administration, regarding the boards’ deliberations and recommendations would be far more difficult to prevent as the number of advice-givers increases. Nonetheless, a president could decide, on balance, to pursue that option.

Congress could try to force that option on the president by creating a U.S. Clemency Commission parallel to the U.S. Sentencing Commission.  Congress chartered the Sentencing Commission to eliminate arbitrary differences in the sentences imposed in federal courts nationwide, and directed the commission to achieve that goal by devising “Sentencing Guidelines” to channel a district court’s otherwise vast sentencing discretion. A Clemency Commission could draft similar guidelines for clemency.  In fact, a statutory scheme would be necessary if Congress wanted commissioners to be “independent”—that is, to have some degree of tenure—by limiting the president’s removal authority to for-cause grounds.

That approach is problematic, however, and not just because of the drawbacks noted above regarding an informal advisory council. Congress might demand the right to appoint some members of a Clemency Commission, which would inevitably lead to partisan infighting between the legislative and executive branches over philosophy and applicants. To be sure, a president who found a commission’s existence undesirable or its recommendations useless could and likely would ignore whatever the board did or said because sentencing and clemency are horses of very different colors.  Congress can restrict or eliminate a federal judge’s sentencing discretion, as the Supreme Court of the United States ruled a century ago in Ex parte United States, 242 U.S. 27 (1916), when it upheld mandatory terms of imprisonment. 

By contrast, Congress cannot limit the president’s clemency power, as the Court held more than 140 years ago in United States v. Klein, 80 U.S. (13 Wall.) 128 (1871), when it ruled unconstitutional a congressional attempt to limit the effect of a pardon. The president, therefore, is under no obligation to accept any recommendations that a commission offers. But that wouldn’t keep Congress from baying about the president’s insensitivity, arbitrariness, or whatever, to say nothing of holding repeated congressional hearings on the subject. The republic hardly needs additional intergovernmental partisan assaults and sniping. We should keep politics from infecting judgments about justice and mercy.

A Role for the Vice President?

Another option would be to use the vice president as the president’s principal clemency advisor.  The vice president lacks the institutional conflict-of-interest plaguing the process today because he has no law enforcement responsibility; that belongs to the president, the attorney general, and the officials heading the federal law enforcement agencies. The vice president can informally consult with the same people who would comprise a multimember board. He gives the president some political cover by sharing in any potential blame for an unpopular decision.  Presumably, the president values the vice president’s judgment, since the president selected him or her as a running mate. Vice President Mike Pence even has experience making clemency decisions because he previously was Indiana’s governor.

Any vice president also enjoys several unique institutional and practical advantages. He is a constitutional officer, elected for the same term as the president.  As the immediate successor to the president and the president’s designee to manage the clemency process, the vice president would have the stature necessary to fend off challenges from the attorney general and private organizations or individuals with an interest in clemency such as the American Bar Association, the defense bar, or civil rights organizations. Finally, he has ideal access to the president since he can walk to the Oval Office from his quarters in the West Wing.

Yet, here, too, there are potential costs involved. There certainly would be media criticism that White House control increases the politicization of clemency.  After all, former President Bill Clinton granted clemency petitions that were never seen, let alone evaluated, by the Justice Department, some of which certainly gave every appearance of favoring cronies. White House domination of the clemency process, it will be said, only exacerbates that risk.

Also, friction could arise between the president and vice president over clemency philosophy or in specific cases, particularly at the end of a president’s second term if the vice president is campaigning to replace him. Finally, while the president can remove the vice president from any advice-giving role, the president cannot fire him. The Twelfth Amendment defines a vice president’s term of office, and the occupant can be removed only by impeachment, which rests in Congress’s hands.  Nonetheless, the vice president might be the perfect choice for principal clemency advisor.

One path the president should not take is to delegate all decision-making authority to the clemency bureaucracy. The clemency power resides in that component of Article II that is not subject to the “advice and consent” of the Senate or anyone else. That placement suggests the Framers intended for the president alone—not some “superior” or “inferior” officer he appointed, let alone a nongovernmental official—to decide whether to forgive an offender on behalf of the nation and to take responsibility for doing so. Unfortunately, the result is that the president will not be able to forgive everyone; some deserving offenders won’t receive relief.

If the president tried to right every wrong, he would wind up delegating that task to someone or have no time for anything else. Neither course is a good one. Receiving advice is salutary; turning over the conn to a subordinate is not. Perfect justice will have to await that journey to Elysium.

President Donald Trump has granted a small number of clemency petitions, but has not yet decided how he wants the process to operate. If he takes this opportunity to systematically reform the clemency bureaucracy, the criminal justice system will be the better for it.

Paul J. Larkin, Jr., is the John, Barbara, and Victoria Rumpel Senior Legal Research Fellow of the Institute for Constitutional Government at The Heritage Foundation.