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PARDON US FOR BEING CYNICS ABOUT PARDONS

On Tuesday, in between nominating a new Supreme Court justice and beating feet for Europe to browbeat our NATO allies, President Trump delivered another drive-by pardon, this time absolving notorious right-wing terrorists/innocent rancher-patriots (we’ll let you pick the descriptor that most closely matches your political persuasions) Dwight and Steven Hammond. The Hammonds were doing a mandatory five years for arson on federal land, because vegetation-control fires the set on their own land spread to a wildlife preserve.

We only care about such pardons for what they may tell us about Trump’s clemency policy. Last Wednesday, while everyone was enjoying their July 4th picnics and fireworks, Ohio State University law professor Doug Berman (who writes the authoritative Sentencing Law and Policy blog), reflected on that policy, and expressed the thought that many in criminal justice reform have been quietly fretting over: was President Trump’s love affair with his pardon power a one-night stand?

Berman wrote, “It is now been nearly a month since Prez Donald Trump commuted the life sentence of Alice Johnson at the behest of Kim Kardashian West. Immediately thereafter, there were reports of “a growing list of potential pardons or commutations under consideration by President Donald Trump” and Prez Trump himself said: “We have 3,000 names.  We’re looking at them.  Of the 3,000 names, many of those names have been treated unfairly.”  A week later it was reported Prez Trump will be “pardoning a lot of people — pardons that even Obama wouldn’t do” and reported that Mrs. West had “assembled a large legal team and was pursuing clemency for several other nonviolent offenders.” 

Berman admitted that he has been “more than a bit worried that all the buzz about all sorts of clemency action may be a lot of talk that may not be followed by a lot of action.”

It is not for lack of candidates. The Intercept last week reported that “an estimated 3,278 people are serving life without parole for a nonviolent offense… Although the Obama administration freed record numbers of nonviolent drug offenders, experts have pointed out that the pardon process was arbitrary and opaque.”

It is little wonder. The Dept. of Justice, which after all exists to lock people up, has an Office of Pardon Attorney that was too understaffed and inefficient to manage all of the clemency applications submitted during the waning days of the Obama era. “As we saw in previous administrations, the clemency process is entrenched in unnecessary bureaucracy,” Jessica Sloan, national director of the bipartisan criminal justice reform group #cut50, told The Intercept.

Critics, including Margaret Colgate Love, who was DOJ Pardon Attorney under Bush I and Clinton, argue the pardon process should be taken away from DOJ. “Rather than seeing presidential pardons as a way to recognize the redemptive power of the justice system, federal prosecutors have often regarded pardons with suspicion — as antithetical and even threatening to what they do,” Love wrote in The Washington Post. “This shortsighted and parochial attitude has ill-served three successive presidents and resulted in an administrative system that is inefficient, arbitrary and unfair.”

Berman, however, is a cautious optimist. He concluded his July 4th post with the observation, “I am not yet going to get cynical about Prez Trump’s clemency chatter because I am eager to hold out hope that he might have a desire to best Prez Obama’s record-setting clemency numbers. But, as regular readers know, I am ever eager to criticize leaders who “talk the talk” but then fail to ‘walk the walk’.”

Sentencing Law and Policy, Hey Prez Trump, how about honoring Independence Day by using your clemency power to give some more Americans more liberty? (July 4, 2018)

The Intercept, Can Trump Succeed Where Obama Failed — Offering Clemency for Nonviolent Offenders? (July 2, 2018)

– Thomas L. Root