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Fewer Hands, More Mercy: A Plea For a Better Federal Clemency System

Fewer Hands, More Mercy: A Plea For a Better Federal Clemency System

Mark Osler

There is a broad consensus in the United States that we incarcerate too many people for non-violent narcotics crimes.[1] One way to address that issue, at least within the federal system, is through the use of federal clemency.[2] While President Obama used the Pardon Power in a significant way to grant commutations to 1,715 prisoners,[3] he accomplished this in spite of an archaic, bureaucratic review process that limited his results. To use the Pardon Power consistently and effectively, Obama’s successors must reform the process of consideration.

For centuries, the United States maintained a relatively simple system for the review of federal clemency petitions.[4] That changed in the 1980s, and we now have 7 to 12 levels of review[5] to arrive at the same decision: whether to grant or deny a petition for clemency. Since that shift towards complexity, grant rates have plunged,[6] and the Pardon Power has largely either been ignored or a source of political scandal.[7] While President Obama cranked this archaic machine faster, he did not replace it.[8] To fix the problem, we need to restore simplicity to this essential mechanism of mercy created by the Constitution.[9] This article sets out why reform is necessary in the face of an unproductive bureaucracy, and how that reform should be structured.

Our greatest president[10] had the simplest approach of all: Abraham Lincoln met personally with those seeking clemency on behalf of themselves or others.[11] Job Smith’s father, for example, waited in tears in Lincoln’s anteroom.[12] His son had been court-martialed and sentenced to die. When the old man told Lincoln about his son, Lincoln’s face reflected a “cloud of sorrow” according to a witness.[13] There was a complication to clemency, though. The condemned soldier served in General B.F. Butler’s Army of the James, and Butler had just sent Lincoln a note imploring him “not to interfere with the courts-martial of the army.”[14] In the end, contrary to the General’s request and in the presence of the soldier’s father, Lincoln spared Job Smith’s life.[15]

Contrast that with the process a prisoner faced when seeking clemency from President Obama in 2016. The process had changed in a century and a half. A prisoner’s father would not get to chat with the president, of course; that one degree of separation between the president and Job Smith’s father has blossomed into no less than 12 discrete, successive reviews by people with different interests, values, and filters from one another.[16]

A typical non-violent narcotics prisoner in 2016 likely would have filed his clemency petition through the Clemency Project 2014,[17] a special program established by the Obama Administration and five
outside organizations.[18] The Clemency Project 2014 was directed towards petitioners who met certain criteria.[19] Here is a lightning-round synopsis of the harrowing review process one of those cases was subjected to as it coursed through that Clemency Project and then the Administration’s review process, with each step in succession. It was:

  • (1) Screened by a Clemency Project staffer;
  • (2) Sent to a lawyer for examination and summary;
  • (3) Reviewed by a committee of three;
  • (4) Revised, then reviewed, by a committee of five;
  • (5) Returned to the lawyer, then returned to and reviewed by the Clemency Project as a petition;
  • (6) Submitted to the staff of the pardon attorney, and then reviewed by that staff;
  • (7) Reviewed by the Pardon Attorney;
  • (8) Reviewed by the staff of the Deputy Attorney General;
  • (9) Reviewed by the Deputy Attorney General;
  • (10) Reviewed by the staff of the White House Counsel;
  • (11) Reviewed by the White House Counsel;
  • (12) And then, only then, sent the President for consideration.[20]

Job Smith’s father was told on the spot that President Lincoln was sparing his son’s life. We cannot expect a president today to meet each clemency applicant personally.[21] Still, we can make the system more effective, fair, and efficient by removing at least some of these levels of bureaucracy. [22] This article will examine the problem, look to examples in the states and prior administrations, and describe two options for a new and thorough—yet efficient—clemency process.

Part II recounts how we got into this swamp, then describes the process under the Obama Administration, summarized above. It is a story that involves a dizzying array of players with very different backgrounds and tasks. Importantly, many of those charged with analyzing clemency cases are generalists; they have many and sometimes conflicting tasks other than the review of petitions for clemency.

Part III examines a few of the higher-functioning state processes for clemency and looks for commonalities. A prior federal effort also warrants discussion—President Ford’s Presidential Clemency Board, which granted pardons to thousands of draft evaders and wartime deserters.[23]

Finally, Part IV describes a model for a new federal clemency process based on the high-functioning systems already described. President Ford’s clemency board and the structure used by productive state systems share certain key elements—most importantly, the use of a board that has some degree of independence in making its determinations.

We live in an era where bureaucracy is in the decline. Microsoft, with 6 to 12 layers of bureaucracy, has lost much of its business to a flatter-structured upstart, Google.[24] Analysts like Gary Hamel have concluded that “[t]here’s no other way to put it: bureaucracy must die. We must find a way to reap the blessings of bureaucracy—precision, consistency, and predictability—while at the same time killing it. Bureaucracy, both architecturally and ideologically, is incompatible with the demands of the 21st century.”[25]

The complex bureaucracy we have in place to evaluate clemency is not just a bad system by modern standards. It is a corruption of the intent of those who wrote the United States Constitution. Alexander Hamilton argued that “[h]umanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed.”[26] Our machine of mercy and justice is unduly fettered, and it is we who should be embarrassed.

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[1] Erik Eckholm, Cutting the Federal Prison Population Will Be Hard. Here’s Why, N.Y. Times (Oct. 26, 2015), https://www.nytimes.com/2015/10/28/upshot/cutting-federal-prison-population-will-be-hard-heres-why.html. Eckholm points out that there is much less of a consensus around lowering sentences for those convicted of violent crimes. Id.

[2] The vast majority of prisoners, of course, are held in state prisons. Id. Each state system has its own clemency process, though these vary wildly in efficacy. For a good examination of state clemency processes, see Margaret Colgate Love, Reinvigorating the Federal Pardon Process: What the President Can Learn from the States, 9 U. St. Thomas L.J. 730, 731 (2012) [hereinafter Love, Reinvigorating the Federal Pardon Process]. See also id. at 732, 744 (suggesting ways to restore presidential pardoning in the federal justice system).

[3] Sari Horwitz, Obama Grants Final 330 Commutations to Nonviolent Drug Offenders, Wash. Post (Jan. 19, 2017), https://www.washingtonpost.com/world/national-security/obama-grants-final-330-commutations-to-nonviolent-drug-offenders/2017/01/19/41506468-de5d-11e6-918c-99ede3c8cafa_story.html?utm_term=.bb3dd765bf57.

[4] See infra Part II.A (detailing the evolution of the America’s federal clemency program).

[5] See infra Part II.B (explaining the current United States federal clemency program).

[6] Clemency Statistics, Office of the U.S. Pardon Attorney, https://www.justice.gov/pardon/clemency-statistics (last updated Feb. 7, 2017).

[7] Jeffrey Crouch, The Presidential Pardon Power 146 (Univ. Press of Kan., 2009).

[8] President Obama’s grants of commutation (shortening of a sentence) were historically significant, but only came after more than seven years of frustration, and through largely ignoring pardons (which restore rights after a sentence has been served). Clemency Statistics, supra note 6.

[9] U.S. Const. art. II, § 2.

[10] Id. Any judgment of a president’s value is necessarily subjective. Lincoln was ranked best in a recent poll of the American Political Science Association’s “Presidents and Executive Politics” section. Brandon Rottinghaus & Justin Vaughn, New Ranking of U.S. Presidents Puts Lincoln at No. 1, Obama at 18; Kennedy Judged Most Overrated, Wash. Post (Feb. 16, 2015), https://www.washingtonpost.com/blogs/monkey-cage/wp/2015/02/16/new-ranking-of-u-s-presidents-puts-lincoln-1-obama-18-kennedy-judged-most-over-rated.

[11] Margaret Colgate Love, The Twilight of the Pardon Power, 100 J. Crim. L. & Criminology 1169, 1177–78 (2010) [hereinafter Love, The Twilight of the Pardon Power].

[12] Schuyler Colfax, Leg Cases, in Meeting Mr. Lincoln: Firsthand Recollection of Abraham Lincoln by People, Great and Small, Who Met the President 81, 83 (Victoria Radford ed., 1998).

[13] Id.

[14] Id.

[15] Id.

[16] See infra Part II.B (discussing America’s federal clemency program, including the 12-step petition review process).

[17] Disclosure: The author, through the Federal Clemency Clinic at the University of St. Thomas, filed clemency petitions for several prisoners.

[18] Sari Horwitz, Justice Department Outlines Criteria for Clemency to Nonviolent Prison Inmates, Wash. Post (Apr. 23, 2014), https://www.washingtonpost.com/world/national-security/justice-department-outlines-criteria-forclemency-to-nonviolent-prison-inmates/2014/04/23/1c5e9932-cad7-11e3-95f7-7ecdde72d2ea_story.html.

[19] Those criteria were:

  • (1) Defendant would have received a substantially lower sentence today;
  • (2) The offense was non-violent;
  • (3) Defendant was a low-level offender;
  • (4) Defendant has no significant ties to large-scale criminal organizations, gangs, or cartels;
  • (5) Defendant has served at least ten years in prison;
  • (6) Defendant has no significant criminal history;
  • (7) Defendant has demonstrated good conduct in prison; and
  • (8) Defendant has no history of violence prior to or during his or her term of incarceration.

In some iterations, the second, third, and fourth criteria were conflated, and “six” criteria were listed. See Pocket Guide to the Clemency Project 2014 Process (with Checklist) 8–11, https://www.stthomas.edu/media/interprofessionalcenter/PocketGuidev3.pdf (last updated July 13, 2015) (listing criteria required by the Department of Justice).

[20] Mark Osler, Clementia, Obama, and Deborah Leff, 28 Fed. Sent’g Rep. 309, 309–10 (2016).

[21] Id. In fact, that did not even work very well for Lincoln. His staff eventually learned that they had to control access to the President so that important work could be done. Love, The Twilight of the Pardon Power, supra note 11, at 1177 (commenting on the importance of ensuring that President Lincoln met only the “most deserving” clemency cases).

[22] The current system has produced some shockingly unfair outcomes, including remarkable racial disparities. A ProPublica analysis of George W. Bush’s clemency record found that, “[a]ll of the drug offenders forgiven during the Bush administration at the pardon attorney’s recommendation — 34 of them — were white.” Dafna Linzer & Jennifer LaFleur, ProPublica Review of Pardons in Past Decade Shows Process Heavily Favored Whites, Wash. Post (Dec. 3, 2011), https://www.washingtonpost.com/investigations/propublica-review-of-pardons-in-past-decade-shows-process-heavily-favored-whites/2011/11/23/gIQAElnVQO_story.html.

[23] See infra Part III.B–C (explaining the work of President Ford’s Clemency Board).

[24] Karl Moore & Kyle Hill, The Decline but Not Fall of Hierarchy — What Young People Really Want, Forbes (June 14, 2011, 2:24 PM), http://www.forbes.com/sites/karlmoore/2011/06/14/the-decline-but-not-fall-of-hierarchy-what-young-people-really-want/#3500668c3463.

[25] Gary Hamel, Bureaucracy Must Die, Harv. Bus. Rev. (Nov. 4, 2014), https://hbr.org/2014/11/bureaucracy-must-die.

[26] The Federalist No. 74 (Alexander Hamilton).

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