Reinvigorating the Federal Pardon Process: What the President Can Learn from the States

Abstract

In the past thirty years the president has been increasingly reluctant to use his constitutional power to pardon, although the demand for pardon has also increased, to restore rights and shorten sentences. The primary reason is that the process for the administration of the power has lost its vigor, its integrity, and its sense of purpose. The attorney general, steward of the power since the Civil War, has allowed a parochial institutional agenda to inform pardon recommendations instead of broadly defined presidential policy goals. The three most recent presidents have been willing to live with a dysfunctional pardon process, evidently because they did not regard pardoning as a duty of office and perceived its risks to outweigh its rewards. Without a plan for using the power, and without a reliable system for executing it, pardoning has become a dangerous activity for any president, and a useless vestigial appendage of the presidency. The failure of the pardon process during the 1990s explains why President Clinton’s final days in office were marred by pardon-related scandal, a fate only narrowly averted by his successor, George W. Bush. It appears that President Obama believes he can avoid scandal by not pardoning at all, or by making only token use of the power.

State pardon procedures suggest ways that presidential pardoning could be restored to a useful place in the federal justice system. While states follow a variety of different administrative models, most have procedures that are more transparent, accountable, and authoritative than the federal process. Some states mandate consultation with elected or appointed boards, some require pre-pardon publication of applications or intended executive action, and some require public hearings and consultation with responsible justice officials. In thirty-two of the forty-four states where the governor is responsible for pardoning, the state constitution requires an annual report to the legislature on pardon grants for that year. Experience in the states that have a sound administrative structure suggests that even if a reliable process does not guarantee vigorous pardoning, it at least discourages the sort of irresponsible use (or disuse) of the power that has become the norm in the federal system.

Three reforms could reinvigorate the federal pardon process and restore its moral force. First, the process should be guided by clear standards that are applied consistently, and grants should be reasoned and defensible. Second, the process must be administered by individuals who are independent and authoritative, who have the confidence of the president, and who are given the necessary resources to carry out the president’s pardoning agenda. Third, the process must be accessible and responsive to people of all walks of life, and take into account the likelihood that many deserving pardon applicants will not have skilled counsel or well-connected supporters to advocate on their behalf.