Obama didn’t follow Bush’s pardon advice. Bad move.

Obama Didn’t Follow Bush’s Pardon Advice and It’s Coming Back to Haunt Him

Obama Didn’t Follow Bush’s Pardon Advice and It’s Coming Back to Haunt Him

The law, lawyers, and the court.
Jan. 5 2017 5:48 PM

The George W. Bush Advice Obama Should Have Taken

He needed to do better on presidential pardons.

U.S. President Barack Obama speaks during a news conference in the Brady Press Briefing Room at the White House December 16, 2016 in Washington, DC.
President Barack Obama listens during a news conference on Dec. 16 in Washington.

Chip Somodevilla/Getty Images

Shortly before Christmas, President Barack Obama issued 231 grants of clemency, commuting 153 sentences and pardoning 78 people. Most of his predecessors, however, exercised their constitutional pardon power far more generously. In total, Obama has pardoned only 148 people, a low number by historical standards. Although he has commuted many more sentences, his relatively stingy use of the pardon power has drawn criticism from criminal justice reformers.

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.

Margaret Colgate Love, who served as United States pardon attorney from 1990 to 1997, is one of the country’s experts on the president’s pardoning power and has been critical of the way the power has been used by the past three presidents. She says that even Obama’s generous commutation policy has failed to remedy problems in the federal criminal justice system—especially the draconian sentences imposed for many drug-related offenses.

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On Wednesday, I spoke with Love, who now represents clients seeking federal clemency, about Obama’s commutation initiative and the history of the pardon power. Our interview has been edited for length and clarity.

Mark Joseph Stern: What was the original purpose of the pardon power?

Margaret Colgate Love: In Federalist 74, Alexander Hamilton articulated the two reasons for including a pardon power in the Constitution. First, he said that the justice system was so necessarily severe that without “an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.” Second, he said pardons were necessary “in seasons of insurrection” on the theory that “a welltimed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth.”

How was the pardon power exercised in the early days of the republic?

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The pardon power functioned primarily in an ordinary, routine administrative manner. Presidents issued hundreds of grants a year. In the 19th century, federal prosecutors and judges played a key role. They would bring cases to the president—or after it was formed in 1870, to the Justice Department. Interestingly, in light of later developments, federal prosecutors seemed to recommend a pardon in about half of all cases.

How did the role of pardon begin to change in the 20th century?

When the parole system was inaugurated in 1910, there was less need for the pardon power to reduce prison sentences, and the pardon was increasingly used to restore civil rights. At the time, there was something called “civil death”—a total loss of all civil rights, of recognition in the legal system—for those convicted of a felony. Pardons were granted to avoid civil death.

Were they still granted regularly?

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They were. And about 50 percent of those who applied were granted a pardon. And grants took place evenly over an administration, with presidents typically issuing more in the middle of their terms than at the beginning or the end. The popular notion of pardons occurring mainly at the end of a term has no historical basis—it has happened only in the Clinton administration.

You’ve trenchantly criticized the modern use of the pardon power as pointlessly stingy. Why?

The problem goes back to 1980. Before then, the attorney general was charged with making pardon recommendations to the president. But at the end of the Carter administration, the attorney general delegated authority to subordinate officials within the Justice Department. And it did not take long for the pardon process to be captured by federal prosecutors, whose merciless “tough on crime” agenda increasingly infused the pardon agenda.

Clinton did come around to the pardon power—in the last days of his presidency.

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Clinton’s use of the pardon power was a debacle: He issued few pardons until the end of his second term, when he issued a slew of questionable ones. There are indications that George W. Bush wanted to use the pardon power more consistently and generously—but the Justice Department still dragged its heels, and Bush ended up with a modest pardon record. In his memoir of his presidency, Bush reports that when he sat in the limo with Barack Obama going to the inauguration, he told the president-elect that if he had one piece of advice, it was to settle on a pardon policy early and stick to it.

But you argue that Obama’s legacy with regard to the pardon power is not particularly admirable.

Well, Bush’s message clearly didn’t sink in. In the first five years of Obama’s presidency, the Justice Department was pleased to let him go along just as his two predecessors had—that is, basically doing very little.

The president didn’t seriously engage with the issue until he saw a New York Times article by John Tierney in December 2012 telling the story of four federal lifers. That article seems to have made such an impression on him that he had his staff ask the Justice Department: Who are these people, and are there more like them in prison? Why am I not seeing clemency cases like these? That was the beginning of his clemency initiative, which focused on what the president regards as the biggest clemency-related problem: people serving lengthy draconian sentences for drug offenses. Congress has actually reduced sentences for certain drug crimes, but it has refused to make these laws retroactive. Obama identified this as a huge problem he wanted to solve.

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Why did the initiative fall short?

I believe the real problem has been the Justice Department’s management of the process. The system originally set up in 2014 was bound to struggle. The man brought in less than a year ago to take over the process as the pardon attorney has done the best anyone could to bring it under control, but the numbers are just overwhelming. There remain thousands of commutation applications somewhere in the pipeline, and I doubt that more than a few hundred of them will eventually be granted before the end of Obama’s term.

The demand for full pardon has also exceeded supply. There were nearly 1,000 pardon applications in fiscal year 2016. That’s absolutely off the charts: Most years it’s between 200 and 300. Now the Justice Department has stopped reporting numbers. But people are applying, qualified people, and they aren’t getting the relief they seek.

Obama may have been stingy with pardons, but he often points out his generous commutations.

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Sure. Obama has done over 1,000 commutations, which is commendable even considering the vast numbers still awaiting action. He has also issued some very unusual grants, commuting sentences to lesser terms, sometimes leaving prisoners with many years to serve before their release. This seems to reflect the fact that the pardon office is now relying heavily on the U.S. attorneys to process the overwhelming caseload, which results in an unfortunate degree of disparity from district to district across the country. The whole idea of staffing pardons centrally was to create a national standard for the president’s grants. I believe there were alternative ways of managing the initiative that, had they been implemented early on, could have resulted in addressing many more cases more efficiently and fairly. I am thinking of the Ford Clemency Commission model, which was recommended and rejected when the initiative began three years ago.

Where full pardons are concerned, President Obama’s record falls far short of every other full-term president with the exception of the two Presidents Bush.

Do you hope Obama picks up the pace of pardons and commutations in his remaining weeks in office?

He’s already had perhaps the most prolific final year of any president. But that’s only when measured against his fairly barren first seven years. His administration has pledged to act on every one of the thousands of commutation applications filed pursuant to the 2014 initiative, which means that there will either be thousands of grants or thousands of denials in the final weeks. Either way, he will be subject to criticism—and the pardon power itself may be the main casualty.

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