More on clemency from someone who saw it up close

From a former staff attorney at of the Office of the Pardon Attorney, I received the following e-mail regarding clemency. Because it speaks for itself, I merely reprint it:

I couldn’t help but notice your recent posts about commutation and the Hasan case. I am intimately familiar with the case because at the time her application was pending I was a staff attorney at the Office of the Pardon Attorney (my tenure was 1997-2010), although the case was not assigned to me. With respect to the recent clemency initiative, I will only say that your bullshit detector is as sharp as ever. Obama and Holder didn’t even have to read Margy’s excellent article to know that something was terribly wrong with the pardon advisory process. In September 2009, I delivered the attached letter to a lawyer in the West Wing in which I described in some detail what was going on. The letter does contain one error. I pointed out that during the entire Bush Administration, the Justice Department recommended favorably in a grand total of five commutation cases out of about 8,500 applications. Upon further review, I realized that I miscounted. Actually, there were six favorable recommendations. My bad.

The main reason they are getting around to this now, in my view, is that Dafna Linzer published a devastating series of articles in the Washington Post (collected here) documenting for a wide audience the deplorable stewardship of the pardon program by the Justice Department. Among other things, Dafna proved in a statistically rigorous fashion that whites were four times more likely get a pardon than blacks. Of course, if a private corporation had a similar record of racial discrimination the Civil Rights Division would file suit against it. In 2011, after I left the office, I highlighted Dafna’s findings in the attached post on the ACS Blog. Even then, the White House unwilling to pull the plug on the pardon office. In 2012, they directed the office to give them some favorable commutation recommendations. It took the Department more than a year to respond and they managed to find only eight cases that they thought were worthy of favorable consideration. Only then did the White House finally admit that they had to make a change.

Even so, the most ardent supporters of the new clemency initiative are letting the Department and the President off the hook too easily. Many who’ve been working on the problem of over-incarceration are so excited by the prospect that something significant might actually happen are either not noticing (or refusing to acknowledge) that the Department has articulated a very narrow conception of executive clemency. The criteria announced by the DAG are limited to cases in which, for one reason or another, the applicant would have received a shorter sentence if he or she was convicted and sentenced today. The margins are fuzzy, to be sure, but that’s the basic idea. This could be because of a change in the substantive law (like a Sup. Ct. case) or an amendment to the Sentencing Guidelines or the Department’s charging policies. It is simply not true that this represents an “expansion” of the traditional criteria for commutations, as the Department claims. In fact, it is a contraction of the criteria. The traditional criteria are listed in the US Attorneys Manual (posted on OPA’s website) and also include unrewarded cooperation, illness of the applicant or a family member and disparity of sentence with a similarly situated defendant. In practice, it has also included extraordinary rehabilitation while incarcerated, the defendant’s youth at the time of the offense, and his or her role in the offense, among other things. In short, any relevant equitable consideration may have weight in the clemency process.

Generally speaking, this broader conception of clemency is consistent with Hamilton’s statement in the Federalist Papers (No. 74) that the purpose of the pardon power is, in part, to provide “easy access” to mercy in cases of “unfortunate guilt.” This is necessary because we have a persistent tendency to be overly harsh when sentencing criminal defendants. Hence justice should be tempered by mercy. It means that forgiveness is a risk worth taking, even in a Republic otherwise dedicated to the rule of law. Forgiveness is rationally justified, because each of us runs a nonnegligible risk of finding ourselves in a situation in which we too will want to appeal for the lenient treatment that mercy affords, namely to be given less than the full measure of our just deserts. Everyone is thus better off living in a society in which there exists a mechanism for making exceptions to the strictures of retributive justice in cases of “unfortunate guilt.”

By contrast, notice that Obama and DOJ are still articulating a view that commutation should be limited to doing justice in some sense, confined to cases in which the applicant arguably deserves a lower sentence. For example, Obama recently granted commutation to a poor fellow who was serving a longer sentence because a typo in his PSR adversely affected his Guidelines range. But Obama wasn’t doing this guy a favor. After all, the defendant was serving an illegal sentence; he was entitled to a sentence reduction if anyone is. I’m not criticizing Obama for doing it. I’m simply saying that he wasn’t being merciful. Call this the “rule-of-law lite,” if you will. The inherent message is the President’s exercise of discretion is justified only if it serves or enhances retributive concerns.

The notion that we can govern ourselves entirely by the rule of law is an illusion. As the great sociologist Otto Kirchheimer once observed, the idea that “an omniscient legislator could instruct and enlighten the judge enough to avoid any need for further consideration of the case did not survive the emergence of Napoleon. … [W]hatever the changing allocation principles, the need for an instrument with which to correct the actions of courts has never been doubted since the rationalist intermezzo of the Enlightenment.” The Framer’s decision to include the pardon power in the Constitution is a testament to the inherent limits of human reason. No matter how hard we try we will never reach a state of “administrative perfection.” Blakely v. Washington, 542 U.S. 296, 313 (2004) (noting that the Framers’ “paradigm for criminal justice” rejected “the civil-law ideal of administrative perfection”). Thus, in its first gloss on the substantive reach of the Pardon Clause, it seemed apparent to the Supreme Court that “[w]ithout such a power of clemency, to be exercised by some department or functionary of a government, it would be most imperfect and deficient in its political morality.” Ex parte Wells, 59 U.S. (18 How.) 307, 310 (1855) (emphasis added). In my view, Obama is systematically excluding mercy as a basis for clemency and he is presumably doing it to insulate himself from the charge that he is “soft on crime.”

I’ve been criticized for looking a gift horse in the mouth. That is not true; as a defense attorney, I’ll take what I can get. If the Department takes this project seriously and adheres to their own announced criteria, there are approximately five thousand prisoners who will be eligible to have their sentences reduced, even on a narrow view of the pardon power. And that is certainly an improvement over what we’ve seen for many years, as is the appointment of new Pardon Attorney. The problem is that Obama is setting a precedent. My concern is that we are implicitly accepting the assertion that these criteria define the scope of the proper use of the power. The new Pardon Attorney couldn’t be blamed if that’s the conclusion she draws from this experience. Nor could the next President. But I think it remains a morally impoverished and historically uninformed conception of the pardon power. Principles matter in the long run.

Best regards, Sam Samuel T. Morison

Letter to the White House: Cuellar letter (1)

UPDATE:  As I read this post over, I am afraid I condemned Sam’s analysis with faint praise. This is a powerful piece that deserves a lot of attention. 

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