Presidential Clemency System Broken, Experts Say

The system of presidential clemency practiced for nearly two centuries no longer functions in practice in the federal system and in most states.

That is the dire conclusion of a bipartisan, expert panel convened Dec. 10 by the Heritage Foundation in Washington, DC.

"President Obama has found only one prisoner worthy of release" in the first four years of his administration said longtime law professor Albert Alschuler, left. He presented statistics showing that previous presidents used their Constitution-based commutation powers far more often until recent years.

Alschuler, a colleague of Obama when the future president was a senior lecturer at the University of Chicago Law School in the 1990s, said the president has denied 3,793 requests for reduction of sentence (a total recalculated shortly after his remarks). The sole grant, the professor said, was to a mother serving a long term on drug charges and suffering from a terminal disease. "Congressional action in 1984," he continued, "left the U.S. for the first time in its history with no functioning mechanism for the release of prisoners prior to the expiration of their sentences."

Concurring with him on the scope of the problem were former Obama White House Counsel Gregory Craig, Republican former Maryland Gov. Robert Erhlich, right, and former Justice Department Pardon Attorney Margaret Love, who held the post from 1990 to 1997 with overall responsibility for managing the department's clemency program.

Update: Huffington Post Live published a video interview Dec. 11 with Dana Siegelman, leader of a petition drive to obtain clemency for her father, former Alabama Gov. Don Siegelman, once his state's leading Democrat. Massive irregularities in the federal corruption conviction of Siegelman have been documented many times by the Justice Integrity Project, CBS 60 Minutes, and others.

The interview, with links below, is the most thorough and up-to-date video so far on the internationally notorious prosecution. It features two prominent former Republican office-holders calling for presidential action to secure the defendant's freedom.

The Heritage program was moderated by Paul Rosenzweig, a Heritage visiting fellow who has served in important congressional and Department of Homeland Security legal posts, and who authored a recent study of the historical roots of clemency powers. The  panel provided a thorough overview of government disfunction that now fosters wasted taxpayer dollars and ruined lives. The Heritage website provides a 75-minute video of the session.

Craig, below left, said, "Everyone who looks at this must agree that the system is badly broken." Craig was White House counsel for a year beginning in 2009. He said, "There is no political constituency for reform. So people must do it for all the right reasons." He is a prominent litigator at Skadden Arps, who recently has been advising the family of Siegelman, whom he has known for more than three decades.

Erhlich, Maryland's governor from 2003 to 2007 and the first Republican to hold the post in 36 years, described clemency as a civic responsibility that brings heavy criticism because of the popular view that convicts must be punished harshly and relentlessly.

Nonetheless, Erhlich said he assigned his office's five counsel to spend half of their time on reviewing applications. He said a governor must exercise the oversight traditional in state and federal systems. Erhlich, currently practicing at the prominent firm King and Spaulding, said his commitment arose out of his experience in the law and marriage to a lawyer who has been both a public defender and prosecutor.

Love practices law in Washington, D.C., specializing in executive clemency and restoration of rights, and sentencing and corrections policy. She is active in bar groups in the field. She said Erhlich was virtually the only recent chief elected official in the official in the nation "to take his responsibilities seriously" for clemency, aside from the president portrayed in the televised series, "West Wing."

Alschuler, now retired and living in Maine, provided a primer on the different categories of clemency and implementation in the federal system. He had been my professor in criminal procedure at Chicago, and so it felt familiar to me to take notes struggling to keep up on his content-rich analysis:

He corrected a common misunderstanding: that a "pardon" can be sought by a prisoner to reduce a sentence being served. Under Justice Department rules, a pardon is available to a prisoner only after completion of a sentence and five years of blameless living afterward. In a few high-profile political cases, pardons have been used to prevent prosecution, he explained. One example was President Ford's pardon for former President Nixon for Watergate crimes in advance of any indictment.

The main avenue for post-sentence adjustments has traditionally been a federal parole system. But Congress abolished this system two decades ago as a part of a get-tough policy. Also, Congress imposed a system of mandatory minimum terms that remove much of the discretion federal judges previously held to rectify any prosecutorial judgments.

Thus, the Justice Department's recommendations to the president for commutation of sentence is virtually the only avenue of relief for those in vast federal prison population. The Justice Integrity Project has extensively covered a petition drive to obtain such relief for former Alabama Gov. Don Siegelman, who resumed a seven-year sentence on corruption charges in September. 

Alschuler's statistics indicated that presidents acted favorably on 49 percent of clemency petitions approved by the Justice Department between 1860 and 1900. But the number dwindled after the Carter administration to just 12 percent during the Reagan-era. Clinton approved just 9 percent, President George W. Bush 1.7 percent, and President Obama less than half of one percent.

Craig said that it's now "a fraud on the public to say there is a system of clemency" because the petitions are such a low priority. He said common sense suggests that there must be more than one federal prisoner who deserve a sentence reduction. There are out of some 219,000 behind bars.

Rosenzweig provided statistics in his introduction about the larger universe of defendants, including those who received post-sentence pardons: "While President Obama has, at least so far, granted clemency only 22 times, other presidents, both Democrat and Republican, have been far more generous. President George W. Bush, for example, pardoned, commuted or rescinded the convictions of 200 people, and President Bill Clinton did the same for 459 people. President Jimmy Carter granted clemency 566 times during his one term in office, although that is far from the record, a distinction which belongs to President Franklin Roosevelt who granted clemency 3,687 times. The Christmas season, a traditional time for presidential forgiveness, is a good time to re-examine how well the clemency process is working."

For reform, panelists suggested that a bipartisan, "blue-ribbon" panel be appointed to take the process out of the current partisan environment whereby chief executives are frightened to use the power for fear of criticism. Craig suggested that recommendations come  from an independent government body whose leader has cabinet status. "It's a conflict," he said, "to put it [clemency] in the Justice Department, where the whole function is to put people in jail, not to get them out."

Love, with two decades at the department, disagreed. She said the function could remain within the department if other reforms are undertaken.

Rosenzweig underscored the bipartisan philosophy that all the experts agreed necessary for reform. He said conservative philosophy, like liberal philosophy, promotes the concepts of justice and mercy.
 

Related News Coverage

Update

MSNBC, Up w/ Chris Hayes, The President's chance to offer mercy: Don Siegelman and Clarence Aaron Cases, Chris Hayes, Dec. 22, 2012 (Video).

Clemency Case Overview

Heritage Foundation, Clemency: Old Problems and New Solutions, Albert Alschuler, Gregory Craig, Robert "Bob" Ehrlich, Jr., Margaret Love, Dec. 10, 2012 (video, 1 hour). Albert Alschuler, Julius Kreeger Professor Emeritus of Law and Criminology, University of Chicago; Gregory Craig, Former White House Counsel for President Barack Obama and Special Counsel for President Bill Clinton; The Honorable Robert "Bob" Ehrlich, Jr. 60th Governor of Maryland and Senior Counsel, King & Spalding LLP; Margaret Love, Former U.S. Pardon Attorney; Member, NACDL Task Force on Restoration of Rights and Status; and Paul Rosenzweig, Heritage Foundation (moderator). A distinguished panel of bipartisan experts explores whether and how the clemency process has deviated from its proper, traditional function. Panelists consider how to make pardons, as Chief Justice John Marshall said, “an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed.”

Pro Publica, Pardon Attorney Misrepresented Facts to White House in Clarence Aaron Case, Dafna Linzer, Dec. 18, 2012. The U.S. Pardon Attorney failed to accurately share key information with the White House regarding a federal inmate seeking a commutation, the Justice Department's Inspector-General concluded today in a detailed 20-page report. The findings determined that in overseeing the case of Clarence Aaron, the pardons attorney, Ronald L. Rodgers, engaged in "conduct that fell substantially short of the high standards expected of Department of Justice employees and the duty he owed the President of the United States."

Commentary by Scott Horton: Exactly one year after the ProPublica/Washington Post series on “Shades of Mercy” began, the Inspector-General found that the US Pardon Attorney has engaged in "conduct that fell substantially short of the high standards expected of Department of Justice employees and the duty he owed the President of the United States."  The report finds the Pardon Attorney effectively worked to vindicate and support the breast-thumping posture of DOJ prosecutors, failed to honestly review the facts, and continuously blocked legitimate pardon requests.  While it doesn't get down to specific names, it is important to note that this report is all about the conduct of one man:  David Margolis, the key figure at the senior DOJ level responsible for the persecution of Don Siegelman, who directly supervises the office of US Pardon Attorney.

ProPublica, Obama has granted clemency more rarely than any modern president, Dafna Linzer, Nov. 2, 2012. A former brothel manager who helped the FBI bust a national prostitution ring. A retired sheriff who inadvertently helped a money launderer buy land. A young woman who mailed ecstasy tablets for a drug-dealing boyfriend, then worked with investigators to bring him down. All of them and hundreds more were denied pardons by President Obama, who has granted clemency at a lower rate than any modern president, a ProPublica review of pardons data shows. The Constitution gives the president unique power to forgive individuals for federal offenses. While pardons do not wipe away convictions, they can restore a person's full rights to vote, possess firearms and obtain business licenses, as well as remove barriers to certain career opportunities and adoptions. For many applicants, a pardon is simply an opportunity for a fresh start. But Obama has parceled out forgiveness far more rarely than his recent predecessors, pardoning just 22 individuals while denying 1,019.

'Clemency' by Justice Department Selective Failure To Prosecute

Huffington Post, An All-American Nightmare, Peter Van Buren, left, Dec. 18, 2012. A widely praised new movie about the assassination of Osama bin Laden, Zero Dark Thirty, opens with a series of torture scenes. The movie scenes are brutal, yet sanitized. The president, a Nobel Peace Prize winner, has made it clear that no further investigations or inquiries will be made into America’s decade of torture. His Justice Department failed to prosecute a single torturer or any of those who helped cover up evidence of the torture practices.  But it did deliver a jail sentence to one ex-CIA officer who refused to be trained to torture and was among the first at the CIA to publicly admit that the torture program was real.  At what passes for trials at our prison camp in Guantanamo, Cuba, disclosure of the details of torture is forbidden, effectively preventing anyone from learning anything about what the CIA did with its victims. We are encouraged to do what’s best for America and, as Barack Obama put it, “look forward, not backward,” with the same zeal as, after 9/11, we were encouraged to save America by going shopping.  Torture does not leave its victims, nor does it leave a nation that condones it. As an act, it is all about pain, but even more about degradation and humiliation. It destroys its victims, but also demeans those who perpetrate it. I know, because in the course of my 24 years as a State Department officer, I spoke with two men who had been tortured, both by allies of the United States and with at least the tacit approval of Washington. While these men were tortured, Americans in a position to know chose to look the other way for reasons of politics. These men were not movie characters, but complex flesh-and-blood human beings. Meet just one of them once and, I assure you, you’ll never follow the president’s guidance and move forward trying to forget.

Huffington Post,Justice: Washington, D.C.-style, Joe Sestek, Dec. 18, 2012. On Veteran's Day this year, I visited those who had served this nation but are now serving time in Pennsylvania's Graterford Penitentiary. Former "shipmates" of mine, almost half are there for a drug-related crime. I watched with respect as each of the too-numerous incarcerated veterans was called up by name while several inmates softly hummed the Battle Hymn of the Republic.....There is another group I thought might be joining my fellow veterans in prison today because they were involved in the same kinds of drug crimes that imprisoned so many veterans, including either moving drug money or laundering it -- those at HSBC bank. However, Assistant Attorney General Lanny A. Breuer told us why our government would not prosecute this special group: If you prosecute one of the largest banks in the world, do you risk that people will lose jobs, other financial institutions and other parties will leave the bank, and there will be some kind of event in the world economy?  In deciding not to prosecute HSBC bank -- with $2.5 trillion in assets and $38 billion in profits the last two years -- for laundering hundreds of millions in drug profits and moving hundreds of millions more to illegally help Iran and other terrorist financiers, Breuer said the Justice Department considered "the collateral consequences."  How then does our government weigh justice for the warrior fighting terrorism compared to justice for the bank officials abetting terrorism? Or determine fairness for the veteran carrying thousands in drug money with the bank executives' laundering of $1.5 billion as accomplices of drug and terror cartels?

Siegelman Case

HuffPost Live! (37-minute video), Free Don Siegelman, Interview by Jacob Soboroff, Dec. 11, 2012. Don Siegelman, former Gov of Alabama, went to prison for what? Dana Siegelman, left, daughter of the governor, spoke on HuffPost Live! Other guests were former GOP Congressman Parker Griffth of Alabama, GOP former Arizona Attorney General Grant Woods, a former co-chair of the 2008 McCain for President campaign, actress Mimi Kennedy, and law professor Scott Horton. Each speaker described why the prosecution and prison sentence of Alabama's leading Democrat was unjust. 

Huffington Post, Don Siegelman's Imprisonment Has 'Karl Rove's Hands All Over' It: Ex-Congressman, Staff report, Dec. 12, 2012. Ex-Alabama Governor Don Siegelman's daughter, Dana Siegelman and former Alabama Congressman, Parker Griffith joined HuffPost Live host Jacob Soboroff to discuss the political conflicts of interest and judicial misconduct that played a major role in the former governor's indictment, conviction, and sentencing on bribery and mail fraud charges. "Karl Rove's hands are all over this," former Congressman Griffith told Soboroff. "This is absolutely, one of the most unjust things I've ever encountered. The Karl Rove southern strategy is a racist strategy, it pits people against one another, it splits us apart and he was very successful in vetting judges." Siegelman's daughter Dana blamed her father's conviction on politics. "It probably had to do with; Dad was a democrat in a mostly Republican state and so all the people in those positions around him happened to be Republican and happened to get on board with this prosecution and do the bidding of people like Karl Rove," she said.

Justice Integrity Project, GOP Former Congressman Decries Injustice for Siegelman, Andrew Kreig, Nov. 27, 2012.  A Republican former congressman provided new momentum Nov. 26 for petition drive to free former Alabama Gov. Don Siegelman from the unjust prison sentence he is serving. Former Alabama Congressman Parker Griffith, right, described Siegelman's seven-year sentence as a "political assassination" in a remarkable interview by Lila Garrett on KPFK.

Justice Integrity Project, Siegelman Daughter: Lawyers Can't Protect Against Unjust Judge, Andrew Kreig, Nov. 30, 2012.  Former Alabama Gov. Don Siegelman's daughter, Dana, provided a powerful insight this week about a rarely spoken shortcoming in the nation's legal system. Even the best defense lawyers are no match for a trial judge determined to convict, as she told a radio interviewer. Alabama legal commentator Roger Shuler reported her remarks Nov. 30 in, "Dana Siegelman Makes A Profound Statement About The Perils We All Face From Corrupt Judges." Shuler has written hundreds of columns about the Siegelman conviction in 2006 on hoked-up corruption charges in a federal judge before Chief U.S. District Judge Mark Fuller of Alabama's middle district.

Huffington Post, As He Returns To Prison, Don Siegelman Still Seeks Justice (Video), John Wellington Ennis, Sept. 11, 2012. Today I received an email from Dana Siegelman, sharing her sad situation--she was about to drive 485 miles to take her father, the former Governor of Alabama, to prison. In a labyrinthine epic that would make Kafka blush, Don Siegelman has spent the past 13 years ensnared in a legal battle that has seen trumped-up corruption charges, unapologetic partisan prosecutions and his governorship stolen out from under him in the middle of the night.

Huffington Post, Siegelman Deserves New Trial Because of Judge’s ‘Grudge’, Evidence Shows….$300 Million in Bush Military Contracts Awarded to Judge’s Private Company, Andrew Kreig, May 15, 2009. The Alabama federal judge who presided over the 2006 corruption trial of the state's former governor holds a grudge against the defendant for helping to expose the judge's own alleged corruption six years ago. Former Gov. Don Siegelman therefore deserves a new trial with an unbiased judge ─ not one whose privately owned company, Doss Aviation, has been enriched by the Bush administration's award of $300 million in contracts since 2006, making the judge millions in non-judicial income. These are the opinions of Missouri attorney Paul B. Weeks, who is speaking out publicly for the first time since his effort in 2003 to obtain the impeachment of U.S. District Judge Mark E. Fuller of Montgomery on Doss Aviation-related allegations.

CBS 60 Minutes, Did Ex-Alabama Governor Get A Raw Deal? Scott Pelley, Feb. 24, 2008.

Harper’s/No Comment, Justice in the Cradle of the Confederacy, Scott Horton, Oct. 20, 2007.