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The untapped power of presidential pardons

President Obama is ignoring one of his most effective tools, some experts say.

JOEL KIMMEL FOR THE BOSTON GLOBE

Earlier this month, President Obama issued pardons to 17 people convicted of felonies, among them a Tennessee man sentenced to 18 months of probation after forging a money order in 1961, a Nebraska man convicted of illegally acquiring food stamps in 1994, and a Hawaii woman who faced deportation to China in 1996 after helping people cheat on their citizenship applications.

The move brings the total number of pardons Obama has granted since entering office to just 39. This gives him the lowest clemency rate of any US president in recent history, according to data compiled by ProPublica, which has published several extensive reports on the modern pardon process.

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Over the past 30 years, the American public has come to see presidential pardons as a haphazard exercise in mercy at best, and a corrupt flexing of power at worst. We think of Gerald Ford letting Richard Nixon get away with Watergate; Bill Clinton using his last day in office to pardon both his half-brother, Roger, and a wealthy donor’s tax-evading husband; and George W. Bush commuting Lewis “Scooter” Libby’s prison sentence for leaking the name of a CIA agent and lying about it.

This is not how the pardon power was meant to be used when the founding fathers wrote it into the Constitution. And according to a chorus of critics in the legal world, the fact that Americans now think about it with such skepticism—when they think about it at all—reflects a failure of leadership on the part of our presidents. Used properly, they say, the pardon is a singular tool of governance, one with the power to restore balance to the justice system and put important issues on the national agenda.

“The pardon power has ancient roots, and was a regular part of both federal and state practice for most of our history,” said Marc Miller, a professor at the James E. Rogers College of Law at the University of Arizona. “That practice has decayed almost to the point of oblivion in the federal system, and in most states. And among the reasons it has decayed is...that it’s been exercised in an arbitrary or even a political fashion.”

Miller and others who have looked closely at pardons argue that instead of using the power as a “get out of jail free” card for cronies, as Clinton is accused of doing, or using it hardly at all, as Obama has, the White House ought to treat it as a high-profile rebuke to policies it believes have produced unjust results. And the fact that presidents have stopped wielding the pardon power in a way that matters, they say, has made the United States a less fair place.

A presidential grant of clemency—which can mean releasing someone from prison early or restoring a convicted person’s right to vote and hold certain jobs that would otherwise be off limits—can send a powerful message. Following his election in 1800, Thomas Jefferson pardoned people who had been imprisoned under the Alien and Sedition Act, which he considered blatantly unconstitutional. After Prohibition passed in 1919, Woodrow Wilson signaled his opposition by pardoning some 500 people convicted under liquor laws. More recently, John F. Kennedy and Lyndon Johnson reduced the sentences of drug offenders—more than 200 in all—who had been imprisoned under mandatory minimum sentences established by Dwight Eisenhower.

In each of these cases, experts say, a president took advantage of the pardon power—a nearly unique tool that allows him to unambiguously and unilaterally override the other branches of government—in order to serve actual ideas and values. And over the next three years, they argue, President Obama could use it in a similarly principled way, highlighting whole categories of individuals whose lives have been ruined by policies he sees as unjust or unduly harsh—injecting urgency into, say, the national debate over mass incarceration or the disproportionate impact of drug laws on minorities.

The political cost could be huge, of course—in part because freeing a person from prison implicates the president in any crime he or she commits in the future, but also because the pardon itself has become so radioactive in the eyes of the public. Rehabilitating it would not be easy. But at a moment when the incarceration rate in the United States is near an all-time high, and the experience of living and working with a felony conviction is growing ever more difficult, it’s worth asking whether the president ought to see the pardon power not just as an option but as a duty.

***

The Constitution devotes just a few words in Article II to the president’s right to grant pardons, and no rationale is provided. But the writings of Alexander Hamilton provide a hint as to what the framers had in mind when they decided the president should be able to personally overturn individual sentences and override the law of the land on a case-by-case basis. “Without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel,” Hamilton wrote, adding that in certain situations—following a rebellion, for instance—the issuing of pardons could “restore the tranquility of the commonwealth.”

According to Margaret Colgate Love, who served as US pardon attorney under George H. W. Bush and Clinton and is now an attorney specializing in clemency, presidents used the pardon power routinely for much of American history, often to commute prison sentences, and sometimes to restore citizenship rights to former convicts who were already free. In a paper published in 2010 in the Journal of Criminal Law and Criminology, Love explains that pardons sometimes served to differentiate between crimes that the law treated as identical: For instance, before there was such a thing as first- and second-degree murder, presidents would review individual murder cases, and commute the sentences of those individuals who had not premeditated their crimes.

Grants of clemency were issued at a rate that now seems staggering. Franklin Delano Roosevelt issued more than 3,000. Harry Truman issued almost 2,000. Abraham Lincoln issued so many that his attorney general said he was “unfit to be trusted with the pardoning power,” partly, writes Love, “because he was too susceptible to women’s tears.” But starting with the Reagan years, when being “tough on crime” became de rigueur for politicians, the number of people whom presidents pardon or whose sentences they commute has dropped precipitously. Meanwhile, the number of people submitting petitions for clemency has steadily increased—in large part, according to Love, because the “collateral consequences” of living with a conviction have grown increasingly punishing.

The fact that prisons are so crowded is in itself seen by some as a compelling reason to bring back and expand the use of the pardon. But for many critics, the problem isn’t just that there aren’t enough pardons being given out—it’s that there doesn’t seem to be any rhyme or reason to who gets them.

According to Mark Osler, a law professor at the University of St. Thomas Law School in Minnesota who has called for a revival of a more muscular approach to the pardon, the key to restoring meaning to the process is for the president to lay out principles for how it should be used, and stick to them. This is what Kennedy and Johnson did, Osler argues, when they decided to help people they believed had been punished too harshly under the Narcotics Control Act of 1956. In commuting their sentences, Kennedy and Johnson sent a message not only to the public and Congress, which repealed mandatory minimums in the 1970s, but also to federal prosecutors, who looked to the president in setting their own enforcement priorities. “There you had a policy choice,” said Osler. “It was an explicit rejection of what Congress had established that was made real through the pardon power.”

It would be nearly impossible to see the pardons of more recent years as a spur to action, Osler said. “What we’ve seen from presidents...has pretty much been a grab bag of circumstances where there’s been no real attempt to explain the principles behind the president’s actions.”

***

In today’s political climate, presidents see far more risk than upside to using pardons more aggressively. It’s a move that exposes the president to accusations of imperial overreach, and leaves a leader vulnerable to being called soft on crime. It is not surprising that one of the most dramatic uses of a pardon power in recent years, when Illinois Governor George Ryan commuted the sentences of all 167 inmates facing the death penalty in his state, came two days before the end of the governor’s final term, upon his exit from political life.

In part, then, letting the pardon power gather dust is just a rational calculus: It may feel smarter to save political capital for something else. “There are some political consequences and political risks that the president just doesn’t want to confront,” said Jeffrey Crouch, an assistant professor at American University and the author of the book “The Presidential Pardon Power.” For modern presidents, he explained, there might be safer—if less immediate—ways to advance a policy agenda.

And yet the pardon carries a certain force that can’t easily be replicated with anything else in the president’s tool kit. There is high political drama in the act of reaching into the criminal justice system, personally choosing which cases require intervention, and explaining your reasoning to the public. A 2004 episode of “The West Wing” milked that drama for a plot line in which President Jed Bartlett announced his decision to pardon more than 30 inmates affected by mandatory sentencing laws during his state of the union address.

Some would like to see President Obama do something similar, before he leaves office, to help individuals subjected to the infamously discriminatory drug policies of the 1980s, which treated drug cases involving crack much more harshly than ones involving powder cocaine. “I used to be a federal prosecutor,” said Osler. “I put people in prison for crack who are still there. I was one of the people that did that. And I know it was wrong—that those people shouldn’t be in prison anymore.”

What’s most frustrating to people like Osler is that both George W. Bush and Bill Clinton publicly called those laws unfair, and yet neither used their constitutional power to do something about it. Obama did attack the policy, reducing the sentencing disparity between crack and powder cocaine with the Fair Sentencing Act of 2010, and the next year freeing a young woman serving a 20-year sentence for crack possession. But many people still languish in prison because of those laws. And critics point out that by using his pardon power mostly on minor, more or less meaningless cases—like that of Ronald Lee Foster, who was sentenced to a year of probation and a $20 dollar fine in 1963 for turning pennies into fake dimes, and James Banks, who was charged with stealing plywood and nails from a construction site—Obama is wasting an opportunity.

To address more serious injustices this way would require Obama to take some risks. And that is exactly why it would send such a powerful message—“putting the credit of his office, and personal credit, on the line,” said Love.

“Sure, you’re taking a risk,” she said. “But the answer is not to stop doing your job—the answer is to make sure you do it effectively and well.”

Leon Neyfakh is the staff writer for Ideas. E-mail lneyfakh@globe.com.
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