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How to Awaken the Pardon Power

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In recent months, a striking array of people -- from the Kardashians to those within the Heritage Foundation -- have called attention to the often-forgotten ability of the president to shorten sentences and pardon convictions. It's no wonder: There is a crisis of over-incarceration in this country, and the pardon power is an obvious way to address it.

Inaction has exacerbated the problem, as the federal pardon power has nearly faded away. President Obama's recent grant of 17 pardons in minor, old cases does little to refute this. Even after these pardons, this president remains the stingiest user of executive clemency in recent history. In addition to a handful of pardons through the course of his presidency, President Obama has granted only a single commutation petition (which merely reduces a sentence), while denying over 3,000. Meanwhile, over 5,000 federal prisoners continue to serve sentences under an old mandatory minimum sentencing statute for crack cocaine sentences that has been reformed but not made retroactive.

No one seems happy with this abandonment of an important Constitutional power. Reports critical of Obama's performance have recently been issued by experts at both the conservative Heritage Foundation and the liberal American Constitution Society, and Supreme Court Justice Anthony Kennedy has condemned the dissolution of the pardon power both while on and off the bench. Such rare consensus among the right, the left, and the middle must mean that something is very wrong.

The process for considering clemency petitions is a part of the problem, according to the critics. The United States Pardon Attorney and his small staff are a part of the Department of Justice, and several levels of review stand between that office and the president. Those tasked with evaluating the apportionment of mercy are embedded deep within the agency charged with prosecution. The stingy results are predictable.

Three simple steps would cure this systemic problem. First, the consideration of clemency needs to be taken out of the Department of Justice. Second, clemency petitions should be evaluated by a diverse, bi-partisan board rather than a single official. Finally, clemency considerations should be routinized, with that board presenting its recommendations to the president at regular intervals.

It is no accident that the precipitous decline in the use of the pardon power coincided with President Reagan's delegation of responsibility to an office nested within the lower tiers of the Department of Justice. The first step in restoring a constitutionally appropriate use of clemency will be to reverse that choice. As Paul Rosenzweig put it in a Heritage Foundation Legal Memorandum:

... using career prosecutors to screen pardon applications has the natural tendency of subjecting pardon applications to greater scrutiny with less lenity to be expected, because career prosecutors (like any human beings) are products of their culture and less likely to see flaws in the actions of their colleagues.

If we take it out of the DOJ, though, where do we put it? The best answer is a modern clemency board, of the sort used in one form or another by nearly all of the states. Such a board can bring together diverse specialties, including defense attorneys, former judges, and, yes, representation from the DOJ. We trust juries because of their multiple viewpoints and ability to discern truth through deliberation, and those same strengths could underlay this later review. The cost of such a board would be offset by the savings that would come from an increased number of shortened sentences.

Finally, having taken the process out of the Department of Justice and created a clemency board, the final step in this reform should be to assure routinized and transparent consideration of clemency petitions. Regular and periodic meetings between the clemency board and the president would ensure that clemency not fade into the background amid the constant river of crisis that often flows through the White House. Transparency would take two forms: prospectively announcing the primary factors the board would look for, and then revealing the reasons that individual petitions are granted in an annual report. With this, the process may become less political.

The president of the United States is a Constitutional scholar, and it is the Constitution itself which creates the odd but important pardon power of the executive. It is nothing less than a charge to do justice while embracing mercy, a job made possible by the humble acknowledgment that our laws at times are not perfectly fit to the changing shapes of human frailties. We can only hope that the president possesses the strength to embrace that humility.