Presidential Pardons Heavily Favor Whites
First of two parts. Part two here [1]. This story was co-published [2] with The Washington Post.
White criminals seeking presidential pardons over the past decade have been nearly four times as likely to succeed as minorities, a ProPublica examination has found.
Blacks have had the poorest chance of receiving the president's ultimate act of mercy, according to an analysis of previously unreleased records and related data [3].
Current and former officials at the White House and Justice Department said they were surprised and dismayed by the racial disparities, which persist even when factors such as the type of crime and sentence are considered.
"I'm just astounded by those numbers," said Roger Adams, who served as head of the Justice Department's pardons office from 1998 to 2008. He said he could think of nothing in the office's practices that would have skewed the recommendations. "I can recall several African Americans getting pardons."
The review of applications for pardons is conducted almost entirely in secret, with the government releasing scant information about those it rejects.
ProPublica's review examined what happened after President George W. Bush decided at the beginning of his first term to rely almost entirely on the recommendations made by career lawyers in the Office of the Pardon Attorney.
The office was given wide latitude to apply subjective standards, including judgments about the "attitude" and the marital and financial stability of applicants. No two pardon cases match up perfectly, but records reveal repeated instances in which white applicants won pardons with transgressions on their records similar to those of blacks and other minorities who weredenied.
Senior aides in the Bush White House say the president had hoped to take politics out of the process and avoid a repetition of the Marc Rich scandal [4], in which the fugitive financier won an eleventh-hour pardon tainted by his ex-wife's donations to Democratic causes and the Clinton Presidential Library.
Justice Department officials said in a statement Friday that the pardon process takes into account many factors that cannot be statistically measured, such as an applicant's candor and level of remorse.
"Nonetheless, we take the concerns seriously," the statement said. "We will continue to evaluate the statistical analysis and, of course, are always working to improve the clemency process and ensure that every applicant gets a fair, merit-based evaluation."
Bush followed the recommendations of the pardons office in nearly every case, the aides said. The results, spread among hundreds of cases over eight years, heavily favored whites. President Obama -- who has pardoned 22 people, two of them minorities -- has continued the practice of relying on the pardons office.
"President Obama takes his constitutional power to grant clemency very seriously," said Matt Lehrich, a White House spokesman. "Race has no place in the evaluation of clemency evaluations, and the White House does not consider or even receive information on the race of applicants."
The president's power to pardon is enshrined in the Constitution. It is an act of forgiveness for a federal crime. It does not wipe away the conviction, but it does restore a person's full rights to vote, possess firearms and serve on federal juries. It allows individuals to obtain licensing and business permits and removes barriers to certain career opportunities and adoptions.
To assess how the pardons office selects candidates for pardons, ProPublica interviewed key officials, obtained access to thousands of pages of internal documents and used statistical tests to measure the effects of race and other factors on the outcome.
From 2001 to 2008, Bush issued decisions in 1,918 pardon cases sent to him by the Justice Department, most involving nonviolent drug or financial crimes. He pardoned 189 people - all but 13 of whom were white. Seven pardons went to blacks, four to Hispanics, one to an Asian and one to a Native American.
Fred Fielding, who served as Bush's White House counsel, said the racial disparity "is very troubling to me and will be to [Bush], because we had no idea of the race of any applicant."
"The names were colorblind to us," Fielding said, "and we assumed they would be at all levels of clemency review."
Beginning in September 2010, the Justice Department was required to make available the names of people denied pardons. Bush's pardon decisions were selected to examine the impact of the pardons office's recommendations over a president's full term and to test how well the office met the president's goal of assuring fairness in the process.
The department does not reveal race or any additional information that would identify an applicant, citing privacy grounds. To analyze pardons, ProPublica selected a random sample of nearly 500 cases decided by Bush and spent a year tracking down the age, gender, race, crime, sentence and marital status of applicants from public records and interviews.
In multiple cases, white and black pardon applicants who committed similar offenses and had comparable post-conviction records experienced opposite outcomes.
An African American woman from Little Rock, fined $3,000 for underreporting her income in 1989, was denied a pardon; a white woman from the same city who faked multiple tax returns to collect more than $25,000 in refunds got one. A black, first-time drug offender -- a Vietnam veteran who got probation in South Carolina for possessing 1.1 grams of crack - was turned down. A white, fourth-time drug offender who did prison time for selling 1,050 grams of methamphetamine was pardoned.
All of the drug offenders forgiven during the Bush administration at the pardon attorney's recommendation - 34 of them - were white.
Turning over pardons to career officials has not removed money and politics from the process, the analysis found. Justice Department documents show that nearly 200 members of Congress from both parties contacted the pardons office regarding pending cases. In multiple instances, felons and their families made campaign contributions to the lawmakers supporting their pleas. Applicants with congressional support were three times as likely to be pardoned, the statistical analysis shows.
In reviewing applicants, pardon lawyers rely on their discretion in ways that favor people who are married and who have never divorced, declared bankruptcy or taken on large amounts of debt. The intent, officials say, is to reward people who demonstrated "stability" after their convictions. But the effect has been to exclude large segments of society.
The ProPublica data show that applicants whose offense was older than 20 years had the best odds of a pardon. Married people, those who received probation rather than prison time, and financially stable applicants also fared better. When the effects of those factors and others were controlled using statistical methods, however, race emerged as one of the strongest predictors of a pardon.
The most striking disparity involved African Americans, who make up 38 percent of the federal prison population and have historically suffered from greater financial and marital instability. Of the nearly 500 cases in ProPublica's sample, 12 percent of whites were pardoned, as were 10 percent of Hispanics.
None of the 62 African Americans in the random sample received a pardon. To assess the chances of black applicants, ProPublica used the sample to extrapolate the total number of black applicants and compare it with the seven blacks whom Bush pardoned. Allowing for a margin of error, this yielded a pardon rate of between 2 percent and 4 percent.
Adams, the head of the pardons office under Bush, said applicants were not penalized based on race. In fact, Adams went out of his way, he said, to help black applicants.
"People in general more and more feel that it is appropriate to give extra consideration to a member of a minority group," he said.
Applicants are not asked about their race. But race is listed in many of the law enforcement documents collected for the application, including pre-sentence reports, rap sheets and Federal Bureau of Prisons records.
Under Justice Department regulations, Adams said, lawyers in the pardons office conduct a rigorous review of an applicant's offense. They then examine character, reputation and post-conviction behavior - tests of what Adams termed "attitude."
"Is the person seeking a pardon for forgiveness or vindication?" Adams said. "Are they going to wave a flag around that says a pardon proves they didn't do as bad as the government said?" If so, he said, "it is counted against them."
Samuel Morison, a lawyer who worked in the pardons office for 13 years, said there is an institutional interest in preserving the convictions secured by the government's prosecutors.
"The pardon office is not a neutral arbiter, because the Justice Department was a party to every criminal case it examines," Morison said.
The yardsticks used by the office under Adams continue to be used under his successor, Ronald L. Rodgers, a former federal prosecutor and military judge.
Theodore B. Olson, a former solicitor general who has represented high-profile pardon applicants, said he has long been frustrated by the slow pace of the process and its lack of transparency. The Justice Department says the office has increased its efficiency, deciding cases in a little more than two years, an improvement since 2005, when the wait was twice that.
When a pardon is denied, the notice comes with no explanation.
"It just comes out of the blue," Olson said. "You can't explain to your client why, especially when you think you've made a strong case."
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First Posted: 12/06/11 12:07 PM ET Updated: 12/06/11 05:51 PM ET