The twilight of the pardon power

Journal of Criminal Law and Criminology

Volumn 100, Issue 3, 2010, Pages 1169-1212

  Love, Margaret Colgate ^a  

^a NONE

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EID: 79251645906     PISSN: 00914169     EISSN: None     Source Type: Journal    
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References (330)

1. At the time this article went to press shortly after Thanksgiving 2010, President Obama had not acted favorably on any applications for clemency, and had denied 676. Almost 5,000 petitions for pardon and commutation were pending in the Office of the Pardon Attorney.
2. See OFFICE OF THE PARDON ATTORNEY, U.S. DEP'T OF JUSTICE, PRESIDENTIAL CLEMENCY ACTIONS BY ADMINISTRATION: 1945 TO PRESENT (2010), http://www.usdoj.gov/pardon/actions_administration.htm [hereinafter OPA CLEMENCY STATISTICS, 1945-PRESENT]. President Obama, like Presidents Bill Clinton and George W. Bush before him, confined his first-year pardoning to the Thanksgiving turkey presented to him by the National Turkey Federation and the Poultry and Egg National Board.
3. See Katherine Skiba, Turkey Gets to Duck Dinner Date: Obama Pardons "Courage" in Holiday Ritual, CHI. TRIB., Nov. 26, 2009, at C3;
4. see also Margaret Colgate Love, Pardon People, Too, Mr. President, WASH. POST, Nov. 12, 2010, at A17.
5. OPA CLEMENCY STATISTICS, 1945-PRESENT, supra note 1.
6. The processing time for pardon petitions has lengthened from months to years, and case backlogs have become permanent. Many of the grants issued by President George W. Bush went to individuals who had filed their petitions more than a decade earlier.
7. See Margaret Colgate Love, Final Report Card on Pardoning by George W. Bush 1-2 (Mar. 13, 2009) (unpublished paper, available at http://www.pardonlaw.com/materials/FinalReportCard.3.13.09.pdf).
8. See P.S. Ruckman, Jr. & David Kincaid, Inside Lincoln's Clemency Decision Making, 29 PRESIDENTIAL STUD. Q. 84 (1999).
9. OFFICE OF THE PARDON ATTORNEY, U.S. DEP'T OF JUSTICE, PRESIDENTIAL CLEMENCY ACTIONS BY FISCAL YEAR, 1900-1945, http://www.justice.gov/pardon/actions_fiscal.htm (last visited Oct. 13, 2010) [hereinafter OPA CLEMENCY STATISTICS, 1900-1945]; OPA CLEMENCY STATISTICS, 1945-PRESENT, supra note 1.
10. The annual reports of the attorney general from 1885 through 1931 include detailed charts of each clemency grant and, frequently, the reason or reasons that clemency was recommended. Clemency statistics dating from the first Cleveland Administration (1885-1889) show a consistent pattern of early first-term pardoning until the presidencies of Bill Clinton and George W. Bush, neither of whom made use of their pardon power until their third year in office.
11. See also P.S. RUCKMAN, JR., ";LAST MINUTE" PARDON SCANDALS: FACT AND FICTION 15-27 (2004), http://pardonresearch.com/papers.htm.
12. A few governors have used their pardon power in recent years, some based on a longstanding tradition of granting clemency in their state, some to ease overcrowding in their state's prison system, and some out of personal conviction.
13. See e.g., Rachel E. Barkow, The Politics of Forgiveness: Reconceptualizing Clemency, 21 FED SENT'G REP. 153, 153-55 (2009) (discussing policies of Arkansas Governor Mike Huckabee, Maryland Governor Robert Ehrlich, and Virginia Governor Tim Kaine);
14. Gov. Jennifer Granholm OKs Clemency for 100 Inmates in 2 Years, ASSOC. PRESS (Jan. 17, 2010), http://www.mlive.com/news/index.ssf/2010/01/govjennifergranholmoksclem.html (describing over 100 commutations granted by Michigan Governor Granholm to ease prison budget crisis).
15. State clemency policies and practices are beyond the scope of this article, and are described in MARGARET COLGATE LOVE, RELIEF FROM THE COLLATERAL CONSEQUENCES OF A CRIMINAL CONVICTION: A STATE-BY-STATE RESOURCE GUIDE (2006), http://www.sentencingproject.org/doc/File/Collateral%20Consequences/execsumm.pdf [hereinafter RESOURCE GUIDE].
16. It has been said that President Obama has been "too busy" in his first two years in office to consider pardon applications. Presidents Lincoln and Franklin Roosevelt had plates at least as full at the beginning of their tenures, however, and still managed to take care of this bit of presidential housekeeping business. A review of presidential pardoning practices over the years suggests that something more than the press of other business has depressed the past three presidents' use of this most benign and personal of their constitutional powers.
17. See Michael Pinard, An Integrated Perspective on the Collateral Consequences of Criminal Convictions and Reentry Issues Faced by Formerly Incarcerated Individuals, 86 B.U. L. REV. 623 (2006);
18. Bruce Western & Christopher Wildeman, Punishment, Inequality, and the Future of Mass Incarceration, 57 U. KAN. L. REV. 851, 857 (2009).
19. Margaret Colgate Love, Starting Over with a Clean Slate: In Praise of a Forgotten Section of the Model Penal Code, 30 FORDHAM URB. L.J. 1705, 1722-23 (2003).
20. Anthony M. Kennedy, Associate Justice, U.S. Supreme Court, Speech at the American Bar Association (Aug. 9, 2003), reprinted in 16 FED. SENT'G REP. 126, 128 (2003). Pointing out that pardons have "become infrequent," Justice Kennedy opined that "[a] people confident in its laws and institutions should not be ashamed of mercy."
21. see also Dretke v. Haley, 541 U.S. 386, 399 (2004) (Kennedy, J., dissenting) ("Among its benign if too-often ignored objects, the clemency power can correct injustices that the ordinary criminal process seems unable or unwilling to consider.").
22. THE FEDERALIST NO. 74, at 446 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
23. see also Douglas Hay, Property, Authority and the Criminal Law, in DOUGLAS HAY ET AL., ALBION'S FATAL TREE: CRIME AND SOCIETY IN 18TH CENTURY ENGLAND 44(1975) ("[The pardon] moderated the barbarity of the criminal law in the interests of humanity. It was erratic and capricious, but a useful palliative until Parliament reformed the law in the nineteenth century.").
24. THE FEDERALIST, NO. 74, at 447 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
25. While the prospect of punishment at the polls or impeachment may have no persuasive value for a president at the end of his term, the Framers believed that the president would always be restrained by the risk of what James Iredell called "the damnation of his fame to all future ages."
26. JAMES IREDELL, ADDRESS IN THE NORTH CAROLINA RATIFYING CONVENTION (1788), reprinted in THE DEBATE ON THE CONSTITUTION, at 380-82 (Bernard Bailyn, ed., 1993). The political checks on the pardon power have collectively been called "limited and clumsy." LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 4-10, at 721 (3d ed. 2000).
27. Even sixty years ago when pardoning was frequent and routine, the only systematic study of the federal pardon power noted the "persistence of erroneous ideas, the lack of exact information, and the absence of publicity concerning the acts of the pardoning authority envelop the power in a veil of mystery." W.H. HUMBERT, THE PARDONING POWER OF THE PRESIDENT 6 (1941).
28. See JEFFREY CROUCH, THE PRESIDENTIAL PARDON POWER 55-56 (2009). After the so-called Whiskey Rebellion had ended peacefully with the ringleaders pardoned individually and the other insurgents granted amnesty, Washington explained to Congress that his pardons had been motivated both by mercy and the public interest: "[I]t appears to me no less consistent with the public good than it is with my personal feelings to mingle in the operations of Government every degree of moderation and tenderness which the national justice, dignity, and safety may permit."
29. President George Washington, Seventh Annual Address (Dec. 8, 1795), in 1 MESSAGES AND PAPERS OF THE PRESIDENTS 184 (James D. Richardson ed., 1896).
30. DAVID HERBERT DONALD, LINCOLN 392 (1995).
31. Lincoln sent troops to quell the Sioux uprising in Minnesota, and later personally reviewed a list of 303 men condemned to death by military tribunal, commuting all but thirty-eight of them, provoking public outrage.
32. See Ruckman & Kincaid, supra note 3, at 87-88.
33. Madison issued amnesties on three separate occasions during the War of 1812 to persuade deserters from the army to return to service.
34. See AMNESTY IN AMERICA 24 (Morris Sherman ed., 1974). Lincoln approved amnesties for Confederate rebels during the Civil War in an effort to co-opt them to the Union side, while Andrew Johnson issued amnestiesafter the conclusion of hostilities to promote national healing.
35. See CROUCH, supra note 14, at 40-43.
36. Theodore Roosevelt pardoned participants in the Philippine insurrection, see Proclamation 483 (July 4, 1902), and Warren Harding pardoned Eugene V. Debs and others convicted of subverting military recruitment during World War I.CROUCH, supra note 14, at 56-57.
37. Harry Truman issued proclamations pardoning ex-convicts who had served in the armed forces during World War II and the Korean War,
38. see Proclamation 2676, 10 Fed. Reg. 15,409 (Dec, 24, 1945) and Proclamation 3000, 17 Fed. Reg. 11,833 (Dec. 24, 1952), and 1,523 individuals convicted of Selective Service Act violations who had been recommended for pardon by a presidentially appointed three-person "Amnesty Board."
39. See Proclamation 2762, 12 Fed. Reg. 8,731 (Dec. 24, 1947); Executive Order 9814 (Dec. 23, 1946). Presidents Ford and Carter pardoned persons guilty of military and selective service violations following the Vietnam War.
40. See generally U.S. PRESIDENTIAL CLEMENCY BOARD, REPORT TO THE PRESIDENT (1975); Proclamation 4483, 3 C.F.R. § 4 (1978). As one pardon scholar has observed, "pardons are a better signal than an armistice agreement to show that a war is truly over and that peace is restored."
41. KATHLEEN DEAN MOORE, PARDONS: JUSTICE, MERCY AND THE PUBLIC INTEREST 51 (1989).
42. For example, Jefferson pardoned some of those convicted under the Alien and Sedition Acts because he considered these acts unconstitutional.
43. See P.S. Ruckman, Jr., THE PARDONING POWER: THE OTHER "CIVICS LESSON" 9 (2001), http://pardonresearch.com/papers/7.pdf. Woodrow Wilson, whose veto had failed to prevent passage of the Volstead Act, pardoned dozens of liquor law violators.
44. Id. at 7-8.
45. A similar dislike of a law was behind Clinton's last-day pardon of people prosecuted under the Independent Counsel Act.
46. See Amy Goldstein & Susan Schmidt, Clinton's Last-Day Clemency Benefits 176;
47. List Includes Pardons for Cisneros, McDougal, Deutch and Roger Clinton, WASH. POST, Jan. 21, 2001, at A1 ("Clinton appeared to be tying up loose ends from many of the independent counsel investigations that had daunted him and several senior members of his administration virtually from the beginning of his tenure.").
48. In the 1960s, John Kennedy and Lyndon Johnson together commuted the prison sentences of more than 300 drug offenders, laying the groundwork for repeal of mandatory minimum sentencing laws in the 1970s.
49. See 1963 ATT'Y GEN. ANN. REP. 62-63 (1963);
50. 1964 ATT'Y GEN. ANN. REP. 64 (1964);
51. see also Margaret Colgate Love, Reinventing the President's Pardon Power, 20 FED. SENT'G REP. 5, 6 (2007) ("In a more recent 'systematic' use of the power evidently intended to send a message to Congress, Presidents Kennedy and Johnson commuted the sentences of more than 200 drug offenders serving mandatory minimum sentences under the Narcotics Control Act of 1956.");
52. Charles Shanor & Marc Miller, Pardon Us: Systematic Pardons, 13 FED. SENT'G RPT. 139, 141-43 (2001) (describing how clemency can be used systematically to create and spur policy changes).
53. See CROUCH, supra note 14, at 56-60 (discussing clemency grants to Eugene Debs, Jimmy Hoffa, Oscar Collazo, Marcus Garvey, and FALN Puerto Rican nationalists). James Buchanan pardoned Mormon participants in the Utah War of 1857-1858,
54. see Donna G. Ramos, Utah War: U.S. Government Versus Mormon Settlers, http://www.historynet.com/utah-war-us-government-versus-mormon-settlers.htm (last visited August 27, 2010), and Benjamin Harrison and Grover Cleveland later pardoned Mormon polygamists to smooth the path to Utah's statehood.
55. Bonnie K. Goodman, January 4 1986: Utah is Admitted as the 45th State of the Union, HISTORY NEWS NETWORK, Jan. 1, 2008, http://hnn.us/blogs/entries/46038.html.
56. See Kennedy, supra note 9 and accompanying text.
57. See generally George Lardner, Jr. & Margaret Colgate Love, Mandatory Sentences and Presidential Mercy: The Role of Judges in Pardon Cases, 1790-1850, 16 FED.
58. SENT'G REP. 212 (2004).
59. The pardon archives disclose that, in the early federal justice system, the President played an important and active role in making what Alexander Hamilton called "exceptions in favor of unfortunate guilt," often at the behest of a federal judge frustrated by the severity of the penalty he had been required by law to impose.
60. Judges urged the President to intervene not only in capital cases, but also in cases involving mandatory fines (which had to be paid before a person could be released) and prison terms. Often defendants would petition the sentencing court directly for clemency, giving the judge an opportunity to send the petition on to the President with a recommendation. Occasionally judges took the initiative in approaching the President rather than rely on the cumbersome machinery of law. Such early judicial activism was particularly evident in District of Columbia cases prior to 1831, and in cases involving employee mail theft.
61. Recently some judges, compelled by mandatory sentencing laws to impose sentences they regard as too harsh, have resumed the practice of recommending clemency at the time of sentencing.
62. See, e.g., United States v. Harvey, 946 F.2d 1375, 1378-79 (8th Cir. 1991) (expressing support for trial judge's recommendation that life sentence for drug trafficking be commuted after fifteen years).
63. See generally Joanna M. Huang, Correcting Mandatory Injustice: Judicial Recommendation of Executive Clemency, 60 DUKE. L. J. 131 (2010).
64. See, e.g., Lardner & Love, supra note 20, at 219.
65. See id. at 220, n.21 (citing Jefferson's statement in National Archives and Records Administration, Petitions for Pardon - 1789-1860, Record Group 59//893, box 2, file 104).
66. See HUMBERT, supra note 13, at 86-88.
67. The requirement to seek the advice of the relevant United States Attorney in every case was spelled out in Justice Department clemency regulations between 1898 and 1946 (clemency regulations dating from 1898 available from the Office of the Pardon Attorney, U.S. Department of Justice).
68. After 1962, the requirement was no longer in the clemency regulations, though the pardon attorney invariably seeks the recommendation of the U.S. Attorney and judge when favorable consideration is being considered.
69. See Samuel T. Morison, The Politics of Grace: On the Moral Justification of Executive Clemency, 9 BUFF. CRIM. L. REV. 1, 39 (2005) ("[I]f the background investigation suggests that a pardon may warranted [sic], or in cases which are of particular importance or in which significant factual questions persist, the Pardon Attorney requests input from the prosecuting authority and the sentencing judge concerning the merits of the petition.").
70. Journalist George Lardner, Jr., is preparing a comprehensive history of presidential clemency based on extensive research in State Department and Presidential archives, and he has generously shared with me several draft chapters of his untitled manuscript. Most of the information about pardoning prior to 1858 comes from the chapter tentatively titled "A Golden Age for the Pardon Power." Lardner reports that Polk "was his own pardon attorney," who wrote careful notes, demanding copies of indictments and court records, insisting on reports from judges and district attorneys. His pardons often provided harsh glimpses of the justice system, setting out a judges admissions about the unreliability of a key prosecution witness in one case, a jury's belated discovery of false testimony in another, and in yet another the incompetence of a steamboat inspection that left a crippled captain facing civil prosecution because his boiler exploded.
71. Id. at 341 (citations omitted).
72. See HOMER CUMMINGS & CARL MCFARLAND, FEDERAL JUSTICE 149 (1937). The State Department had previously processed clemency applications, but in 1858, Secretary of State Daniel Webster and Attorney General John Crittenden agreed that "petitions should pass entirely into the Attorney General's charge, although warrants should still issue from the State Department."
73. President Cleveland transferred authority to issue pardon warrants to the Justice Department by executive order in 1893.
74. See Lardner & Love, supra note 20, at 220 n.21 (citing Exec. Order of June 16, 1893 (on file at the Office of the Pardon Attorney)).
75. See Lardner, supra note 24, at 351 (citing NARS RG 204/10/A/344);
76. see also Act of March 8, 1865, ch. 98, 38th Cong., 2d Sess. 516 (authorizing employment of a pardon clerk at a salary of $1,800 per year).
77. A popular poem of 1863 recited a fanciful tale of Lincoln's pardon of William Scott, a soldier sentenced to death for sleeping on sentry duty. FRANCIS DE HAES JAVIER, THE SLEEPING SENTINEL: AN INCIDENT IN VERSE 16 (1863) ("He came to save that stricken soul, now waking from despair; and from a thousand voices rose a shout which rent the air! The pardoned soldier understood the tones of jubilee, and, bounding from his fetters, blessed the hand that made him free!").
78. In 1870, Harper's Weekly published a full-page illustration of Lincoln arriving at the place of Scott's scheduled execution barely in time to save his life, and in 1914, Scott's pardon became the plot of a silent motion picture. THE SLEEPING SENTINEL (Lubin Manufacturing Company 1914);
79. see also William Scott (The Sleeping Sentinel), WIKIPEDIA, http://en.wikipedia.org/wiki/William_Scott_(The_Sleeping_Sentinel) (last visited March 7, 2010).
80. See Ruckman & Kincaid, supra note 3, at 85 (citing BELL IRVIN WILEY, THE LIFE OF BILLY YANK: THE COMMON SOLDIER OF THE UNION 216 (1972)).
81. A total of 267 men were executed by the military authorities during the Civil War, and 141 of them were deserters. J. T. Dorris, President Lincoln's Clemency, 20 J. ILL. ST. HIST. SOC'Y 547, 553 (1953).
82. CARL SANDBURG, 3 ABRAHAM LINCOLN: THE WAR YEARS 476 (1939).
83. Dorris, supra note 28, at 550 (citing 7 WAR OF THE REBELLION: OFFICIAL RECORDS OF THE UNION AND CONFEDERATE ARMIES 18-19 (1897)). When asked on another occasion how he was able to execute court-marshaled offenders without presidential interference, Sherman replied, "I shot them first." Ruckman & Kincaid, supra note 3, at 85 (citing RICHARD N. CURRENT, THE LINCOLN NOBODY KNOWS 169 (1958)).
84. See, e.g., INSIDE LINCOLN'S WHITE HOUSE: THE COMPLETE CIVIL WAR DIARY OF JOHN HAY 64 (Michael Burlingame & John R. Turner eds., 1997) (describing a six-hour session inwhich Lincoln eagerly "caught at any fact which would justify him in saving the life of a condemned soldier").
85. Dorris, supra note 28, at 550 (citing LAURA STEDMAN & GEORGE M. GOULD, 1 LIFE AND LETTERS OF EDMUND CLARENCE STEDMAN 265 (1910)).
86. RICHARD N. CURRENT, THE LINCOLN NOBODY KNOWS 169 (1958). People joked that enterprising merchants in the District of Columbia rented weeping children and widow's weeds to the mothers of condemned soldiers before their audiences with the President.
87. See WILLIAM E. BARTON, 2 THE LIFE OF ABRAHAM LINCOLN 255 (1925).
88. Ruckman & Kincaid, supra note 3, at 93-94.
89. Ruckman and Kincaid conclude that Lincoln used "the clemency decision-making process as a way to win the respect and support of the citizenry."
90. Id. at 95.
91. Petitioners were evidently well-advised to stop on Capitol Hill and other governmental centers on their way to the White House, for Lincoln's clemency warrants noted the support of U.S. Senators (15 warrants); members of Congress (14 warrants); governors (12 warrants); judges, including one Supreme Court Justice (73 warrants); prosecutors (78 warrants); and prison officials (44 warrants).
92. Id. at 93-94.
93. They also noted the support of former public officials, state legislators, mayors, aldermen, generals, the Vice President, and many ordinary citizens.
94. The clemency warrant of one offender, for example, recited the endorsement of a "large majority" of the Pennsylvania legislature and "several thousand citizens."
95. Id. at 94.
96. Dorris, supra note 28, at 554.
97. 1880-1881 ATT'Y GEN. ANN. REP. 20 (1881).
98. Lardner, supra note 24, at 509 (quoting from an April 1887 report to "a Select Senate Committee interested in how the public business was being conducted," Report 507, Part 3, 50th Cong., 1st Sess., 20-23).
99. In March 1891, the position "clerk of pardons" was redesignated "the attorney in charge of pardons," at which time Congress established the Office of the Pardon Attorney as a separate component within the Justice Department.
100. See Act of Mar. 3, 1891, ch. 541, 26 Stat. 946.
101. 1897 ATT'Y GEN. ANN. REP. 180 (1897) (Report of the Pardon Attorney) ("[C]ases in which neither the United States attorney nor the trial judge recommended clemency are not considered by the President unless it is apparent that the health of the convict will be very seriously impaired by further confinement.").
102. See generally 1885-1931 ATT'Y GEN. ANN. REP. (1885-1931). In 1897, for example, 669 petitions for clemency were received by the Attorney General, of which 334 were sent on to the President with a recommendation.
103. 1897 ATT'Y GEN. ANN. REP. 179 (1897).
104. Of those 334 petitions, 224 were granted by the President: 98 unconditional pardons, 5 conditional pardons, 80 sentence commutations, 31 pardons "for the purpose of restoring citizenship," 5 remissions of fine and 5 respites.
105. One hundred and ten petitions were denied.
106. Ex Parte Garland, 71 U.S. 333, 337-38 (1866).
107. For example, Attorney General Garland expanded the annual reports that the attorneys general had been sending to Congress since 1873 to include a full account of each pardon grant, and spelling out the justification for his recommendation in each case.
108. See 1885 ATT'Y GEN. ANN. REP. (1885). The practice of publishing reasons for each clemency grant in the annual report of the attorney general continued until 1932, when it was discontinued at the direction of President Roosevelt.
109. See 1893-1897 ATT'Y GEN. ANN. REP. (1893-1897). Cleveland personally denied another 516 cases, allowing more than 750 applications to die without action at the JusticeDepartment. In several early cases, he made clear his dislike of the primitive federal law of murder, which knew no degrees.
110. See 1885 ATT'Y GEN. ANN. REP. 344 (1885) (granting commutations to Mason Holcomb, William Dickson, Frederick Ray, and Williams Meadows, all sentenced to hang in the District of Arkansas by the notorious hanging judge Isaac Parker).
111. In one case during his second term, President Cleveland explained his commutation of Thomas Taylor's death sentence as follows: In disposing of this case I am not able to rest my action upon the far too common allegation of insanity, nor upon the theory of accidental or unintentional homicide, both of which pleas have been strongly urged on behalf of the convict as well as upon his trial as upon his application for Executive clemency. This commutation is granted upon the ground that, in my opinion, there has not been presented in the case such distinct and satisfactory evidence of premeditation as should characterize the crime of murder in the first degree, and because I think it can fairly be assumed from the facts developed that the discovery by the convict just prior to the homicide of the recent and flagrant infidelity of his wife so affected him that he took her life in an instant of blind passion and terrible rage. This case presents another illustration of the desirability of a classification of murder into degrees in the District of Columbia, as has been done with good results in some of the States.
112. 1896 ATT'Y GEN. ANN. REP. 182-83 (1896).
113. In another 1896 case, involving one Eugene LeBoeuf, who had been convicted in the Eastern District of New York of sending obscene pictures through the mail and sentenced to two years in Kings County penitentiary, the President noted that, Though I find it exceedingly difficult to extend any measure of clemency in a case involving the despicable crime of which this convict was confessedly guilty, yet I think that this is an exceptional case of its class. The convict has already been imprisoned fourteen months, his character prior to his arrest was good, and he was of industrious habits; but I confess I am more influenced by the sufferings and privations which his longer incarceration would bring upon his innocent and dependent wife and child.
114. Id. at 190.
115. See "Rules Relating to Applications for Pardon," February 3, 1898, at Rules 1, 3, 4 (signed by President William McKinley and Attorney General John Griggs) (on file with Office of the Pardon Attorney, U.S. Dep't of Justice,) [hereinafter McKinley Rules]; see also Kennedy, supra note 9.
116. See HUMBERT, supra note 13, at 108, tbl.2 (Applications for Clemency Disposed of Without the Participation of the President in Relation to the Total Applications Disposed of During the Year 1900-1936).
117. HUMBERT, supra note 13, at 121 (quoting Address, Reform in Criminal Procedure, October 13, 1932).
118. Before the 1920s, it is hard to find a court-imposed prison sentence longer than five years in the attorney general's clemency charts; even in the 1920s, prison sentences as long as ten years were relatively infrequent.
119. See 1885-1931 ATT'Y GEN. ANN. REP. (1885-1931).
120. See HUMBERT, supra note 13, at 91-92 (describing the allocation of responsibility among the seven people in the Office of the Pardon Attorney in 1940, a relatively typical year in which 1293 applications were received and 270 grants were issued).
121. In 1879, circuit courts were empowered to issue writs of error on a discretionary basis, Act of March 3, 1879, ch. 176, 20 Stat. 354, and a variety of procedural devices, includingwrits of habeas corpus, motions for a new trial, and certificates of division, allowed some appellate review even before 1879.
122. See Marc M. Arkin, Rethinking the Constitutional Right to a Criminal Appeal, 39 UCLA L. REV. 503, 531-43 (1992). In 1889 federal defendants sentenced to death gained the right to appeal. Act of Feb. 6, 1889, ch. 113, § 6, 25 Stat. 655, 656. In 1891, other defendants convicted of serious crimes gained the same right. Act of March 3, 1891, ch. 517, § 5, 26 Stat. 826.
123. The sympathy of prosecutors toward pardon was replicated in the states.
124. See, e.g., James D. Barnett, The Grounds of Pardon, 17 J. AM. INST. CRIM. L. & CRIMINOLOGY 490, 505 (1927) (quoting H. B. Tedrow, State Board of Pardons of Colorado, 1911 Proceedings of the Annual Congress of the American Prison Association 300-01) ("I have read dozens of communications from judges saying their sentences in specific cases were too severe. District attorneys time and again tell us that particular sentences are excessive and thus confess that a well-intended prosecution was transformed into an unintended persecution.").
125. See Lardner, supra note 24, at 514 ("Many federal prosecutors and judges across the country were still accustomed to literal application of the laws that could then be ameliorated by recommending a pardon."). A similar willingness among eighteenth century English judges to impose harsh laws with an expectation of a later pardon has been described by Douglas Hay. Hay, supra note 11, at 23 ("Parliament intended their legislation to be strictly enforced, and. the judges increasingly vitiated that intention by extending pardons freely.").
126. See generally 1885-1910 ATT'Y GEN. ANN. REP. (reasons given for pardons); HUMBERT, supra note 13, at tbls.5 & 6.
127. HUMBERT, supra note 13, at tbls.5 & 6.
128. Id. at 124-33.
129. See Ruckman, supra note 17.
130. Act of Apr. 30, 1790, 3, reprinted in 2 ANNALS OF CONG. 2215 (1970) (declaring "wilful murder" "within. any. place or district of country, under the sole and exclusive jurisdiction of the United States" to be punishable by death).
131. See Act of Mar. 4, 1909, ch. 321, §§ 273, 275, 35 Stat. 1143. For one complaint about Congress's failure to divide the crime of murder into degrees,
132. see 1896 ATT'Y GEN. ANN. REP. xvii-xviii (1896).
133. See HUMBERT, supra note 13, at 125 tbl.5. President Cleveland explained his 1896 commutation of Thomas Taylor's death sentence as follows: In disposing of this case I am not able to rest my action upon the far too common allegation of insanity, nor upon the theory of accidental or unintentional homicide, both of which pleas have been strongly urged on behalf of the convict as well as upon his trial as upon his application for Executive clemency. This commutation is granted upon the ground that, in my opinion, there has not been presented in the case such distinct and satisfactory evidence of premeditation as should characterize the crime of murder in the first degree, and because I think it can fairly be assumed from the facts developed that the discovery by the convict just prior to the homicide of the recent and flagrant infidelity of his wife so affected him that he took her life in an instant of blind passion and terrible rage. This case presents another illustration of the desirability of the classification of murder into degrees in the District of Columbia, as has been done with good results in some of the states.
134. 1896 ATT'Y GEN. ANN. REP. 182-83 (1896).
135. See U.S. DEP'T OF JUSTICE, 3 THE ATTORNEY GENERAL'S SURVEY OF RELEASE PROCEDURES: PARDON 295-96 (1939) [hereinafter 3 SURVEY OF RELEASE PROCEDURES].
136. 1908 ATT'Y GEN. ANN. REP. 8 (1908).
137. Unfortunately, after 1931 these fascinating records were no longer compiled and published, ostensibly for reasons of efficiency but more likely because of President Roosevelt's preference for confidentiality in the pardon process, and they exist now only in the uncatalogued letters of advice signed by the Attorney General available from the National Archives and Records Administration
138. 1896 ATT'Y GEN. ANN. REP. 187-88 (1896).
139. 1897 ATT'Y GEN. ANN. REP. 187-88 (1897);
140. see also id. at 191,
141. granting commutation to an individual convicted of counterfeiting and sentenced to six months in prison: The sentence of his convict was so unaccountably lenient and his guilt was so clear that no consideration arising out of the facts of the case as they are related to the convict himself would incline me to interfere with his punishment. I can not, however, close my heart to the distressing representation that very lately and since the imprisonment of the convict his wife has died, leaving motherless a large family of small children, one of them an infant a few weeks old. The pardon is granted solely on their account, and in the hope that the release of their father will relieve their destitute and forlorn condition.
142. While most grants to prisoners prior to 1895 were simply styled "pardon," after that time official reports categorized grants in a variety of ways. For example, between 1895 and 1904, presidents granted 871 unconditional pardons, 101 conditional pardons, 552 commutations, 6 conditional commutations, 362 pardons "to restore civil rights," and 89 miscellaneous grants of reprieve, respite, and remission of fine. See 1895-1904 ATT'Y GEN. ANN. REP. (1895-1904). By the 1920s, the number of full pardons had declined to about 10% of the total, and most grants were described either as "commutation of sentence" or "pardon to restore civil rights." For the decade between 1920 and 1929, the presidents issued 1764 commutations, 1239 pardons to restore civil rights, and only 203 full pardons.
143. See 1920-1929 ATT'Y GEN. ANN. REP. (1920-1929).
144. See HUMBERT, supra note 13, at 100-01. Between Reconstruction and 1895, there were few pardons granted to people who were neither imprisoned nor threatened with prison, simply "to restore civil rights." After 1895, however, "the President disclosed consistently and impressively an inclination toward this form of clemency."
145. Id. at 101.
146. The final simplification of the grant typology into two types of grants (commutation for prisoners and pardon for those who had fully served their sentence) was not accomplished until the 1962 clemency rules. However, after 1930 there were few pardons granted to anyone who was still under sentence. The term "commutation" itself did not appear in the clemency rules until 1962.
147. Graphs and tables showing pardon grant patterns from 1900 through 2001, based on data from the Justice Department's Office of the Pardon Attorney, can be found in P.S. RUCKMAN, JR., supra note 4, at 15-27. The practice of regular monthly pardoning continued under Presidents Franklin Roosevelt and Truman, but became less regular beginning with President Eisenhower.
148. Id. at 23-24.
149. See Ruckman, supra note 17, at 16-18 figs.1-9.
150. HUMBERT, supra note 13, at 5.
151. President Eisenhower began the practice of signing a "master" warrant listing the names of all pardon beneficiaries, and authorizing the Attorney General (later the Deputy Attorney General, and still later the Pardon Attorney) to prepare and sign individual warrants for delivery to the individual beneficiary. See Warrants of Pardon (on file in Office of the Pardon Attorney, U.S. Department of Justice).
152. Act of June 25, 1910, ch. 387, 36 Stat. 819;
153. see U.S. PAROLE COMM'N, HISTORY OF THE FEDERAL PAROLE SYSTEM 6-7 (2003), available at http://www.fedcure.org/ information/TheHistoryOfTheFederalParoleSystem-2003.pdf.
154. Pardon's performance of a paroling function in the nineteenth century federal justice system, and its gradual displacement by a statutory prison release procedure and sentencing alternatives in the early twentieth century, was mirrored in most of the states.
155. See U.S. DEP'T OF JUSTICE, 4 THE ATTORNEY GENERAL'S SURVEY OF RELEASE PROCEDURES: PAROLE 52-53 (1939) [hereinafter 4 SURVEY OF RELEASE PROCEDURES].
156. The growing number of appeals in non-capital cases reduced the number of prisoner petitions seeking to correct error in the district court, while the authorization of probation in 1923 gave a sentencing alternative to judges not inclined to impose a prison term. In 1926, the attorney general reported that the availability of probation had eliminated "a large number of [clemency] applications involving offenses of a trivial nature."
157. 1926 ATT'Y GEN. ANN. REP. 117 (1926).
158. Between the start of 1900 and the end of 1909, presidents approved 1,518 grants of clemency; between the start of 1910 and the end of 1919 (the first decade of the statute's operation), they approved 2,534 grants; and between the start of 1920 and the end of 1929, they approved 3,588 grants. HUMBERT, supra note 13, at 97-99 (Table I: Applications for Clemency and the Disposition Made of Them). Federal liquor prohibition accounted for much of the increase. In 1930, the pardon attorney estimated that 70% of his budget was devoted to processing prohibition cases.
159. Id. at 92 n.18.
160. 1919 ATT'Y GEN. ANN. REP. 4 (1919).
161. The report further states: It appears desirable that a board be created for the purpose of passing upon and recommending action to the President in pardon cases and for the purpose of finally approving paroles granted by the parole boards established at institutions where Federal prisoners are confined. It is recommended that a board of three men be constituted and fully empowered to handle this work. The jurisdiction over Federal penal institutions should also be vested in this board.
162. See also 1920 ATT'Y GEN. ANN. REP. 6-7 (1920). The language used in the 1920 report is identical to that of the 1919 report.
163. See 1928 ATT'Y GEN. ANN. REP. 78 (1928);
164. 1929 ATT'Y GEN. ANN. REP. 79 (1929).
165. See U.S. PAROLE COMM'N, supra note 71, at 7. The same year, Congress also created the Federal Bureau of Prisons, whose first director was Sanford Bates.
166. See Paul W. Keve, Atthe Mercy of the States, in ESCAPING PRISON MYTHS 25, 33 (John W. Roberts ed., 1994). Bates and the Bureau's second director, James V. Bennett, managed the difficult transition to a centralized federal prison system.
167. Id. at 33-35.
168. See generally JAMES V. BENNETT, I CHOSE PRISON (1970).
169. 1932 ATT'Y GEN. ANN. REP. 127 (1932).
170. Since 1910 when the Federal parole act became effective, the number of prisoners released annually on parole from the Federal institutions has grown from 133 in 1910-11 to 5,207 in 1931-32. The increase has been especially rapid during the past few years. Parole release numbered 1,069 in 1928-29, 2,536 in 1929-30, and 4,566 in 1930-31. Thus the number paroled in 1931-32 was more than five times as large as the number paroled three years previously, and more than twice as large as the number paroled two years previously. The number of parole releases has also increased more rapidly than the prison population. Parole releases in 1910-11 numbered only 6.4 per 100 of the prison population. while parole releases in 1931-32 numbered 38 per 100 of the prison population.
171. The numbers reported in this passage do not include federal prisoners paroled from state institutions. The 1910 statute empowered state boards to release federal prisoners housed in state institutions on the same terms as other inmates of these facilities (although it also empowered the Attorney General to veto the paroles approved by state boards).
172. See OPA CLEMENCY STATISTICS, 1900-1945, supra note 4.
173. Parole apparently was originally introduced in some states not for any new interest in encouraging rehabilitation, but for a similar desire to relieve administrative burdens.
174. See, e.g., Sheldon L. Messinger et al., The Foundations of Parole in California, 19 L. & SOC'Y REV. 69, 69 (1985) ("Parole was introduced in California, and used for over a decade, primarily to relieve governors of part of the burden of exercising clemency to reduce the excessive sentences of selected state prisoners.").
175. See 4 SURVEY OF RELEASE PROCEDURES, supra note 72, at 2-3.
176. Even as late as 1939, in eighteen states, pardons and paroles were granted by the governor or by a clemency board that sometimes included the governor. (In six of these states the courts had held parole to be in derogation of the governor's constitutional pardon power.) 4 SURVEY OF RELEASE PROCEDURES, supra note 72, at 44-54.
177. In another nine states the governor was advised in pardon matters by the parole board. See id. The sharedadministrative framework has continued to the present in two-thirds of the states (although Oklahoma is the only state where the governor still must approve all paroles).
178. See LOVE, RESOURCE GUIDE, supra note 5, at 23-36.
179. 4 SURVEY OF RELEASE PROCEDURES, supra note 72, at 53.
180. Standards for clemency and parole frequently the same, and parole has been held to have similar discretionary attributes. Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458, 464 (1981) ("A commutation decision. shares some of the characteristics of a decision whether to grant parole."); Rummel v. Estelle, 445 U.S. 263, 293 (1980) (Powell, J., dissenting) (noting that "parole is simply an act of executive grace"). However, despite the necessarily subjective and predictive nature of the parole-release decision, state statutes may create liberty interests in parole release that are entitled to protection under the Due Process Clause.
181. See Greeholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1 (1979).
182. See 3 SURVEY OF RELEASE PROCEDURES, supra note 59, at 296.
183. See MOORE, supra note 16, at 86 (speculating that the abolition of federal parole could lead to "an expanded and crucial role for pardons").
184. See McKinley Rules, supra note 45.
185. See typescript Reports of the Pardon Attorney's Office, 1946-1952 (available from the Office of the Pardon Attorney and on file with author). Between 1962 and 1993, the clemency rules specifically provided for a waiver of the eligibility waiting period "in cases of aliens seeking a pardon to avert deportation."
186. See 28 C.F.R. § 1.3 (1963);
187. 28 C.F.R. § 1.2 (1985).
188. One notable exception was a rare systematic use of the pardon power in the 1960s, when Presidents Kennedy and Johnson commuted the sentences of more than 300 drug offenders serving mandatory minimum sentences under the Narcotics Control Act of 1956.
189. See 1963 ATT'Y GEN. ANN. REP. 62-63 (1963);
190. 1964 ATT'Y GEN. ANN. REP. 64 (1964);
191. see also Shanor & Miller, supra note 17, at 142.
192. See supra note 43.
193. Typescript reports of the pardon attorney from 1941 through 1955 are available from the Office of the Pardon Attorney, and are on file with the author.
194. See 1958 ATT'Y GEN. ANN. REP. (1958) 43-44.
195. Only about fifteen commutation applications were filed each year from 1953 through 1958, usually seeking release because of critical illness, or "some extraordinary reasons why the President should be called upon to act rather than wait for statutory provisions to take care of the situation."
196. Id. at 43.
197. As to pardon, [t]he majority of applicants for pardon give various reasons for seeking clemency. Some examples are: The substantial businessman who seeks a pardon of the offense committed more than 25 years ago in order to remove the stigma from the names of his grandchildren; the young man who robbed a bank during his teenage years, learned a dental technician trade while in prison, studied dentistry upon release, and needed a pardon to secure a professional dentist's license; the real estate broker who moved from one state on account of his wife's health and found that he needed a pardon in order to receive a broker's license in the new state; the young man who felt he needed a pardon to help him secure employment; and elderly men and women who seek to clear their names before they die.
198. Id. at 45.
199. ("An increasing number of Government employees, with records of past convictions, apply for pardons necessitated by Public Law 769, 83rd Congress. This Act denies retirement annuity benefits to employees convicted of certain crimes unless pardons are granted.").
200. Id. at 44.
201. See 28 C.F.R. Part 1 (1963); 27 Fed. Reg. 11002 (Oct. 30, 1962). These regulations also formalized the simplified grant typology announced in the 1958 report of the pardon attorney.
202. See OPA CLEMENCY STATISTICS, 1945-PRESENT, supra note 1.
203. It is hard to be precise about the grant rate for post-sentence pardons before President Nixon's first term, because the pardon attorney statistical reports do not break out petitions received and denied by type of relief until 1967. That said, Franklin Roosevelt granted 27.8% of all clemency petitions acted upon during his tenure, Truman granted 41.5%, Eisenhower granted 26.7%, and Kennedy granted 40.9%. (In light of the fact that Eisenhower commuted only forty-seven sentences in eight years, it is likely that his 1110 pardons represent more than 30% of the total number of pardon petitions acted on during his two terms.) Nixon granted 51% of the pardon petitions acted on during his tenure, and 26.3% of pardon and commutation petitions combined; Ford granted 39% of pardon petitions and 31.2% overall; and Carter granted 34% of pardon petitions and 21.6% overall.
204. It is no accident that the president tended to get in trouble with pardons only when he failed to utilize the Justice Department's pardon process.
205. See Walter Trohan, Bridges Seeks to End Secrecy in U.S. Pardons, N.Y. HERALD TRIB., Aug. 30, 1953, at 10 (President Truman accused of cronyism in pardoning seven current or former government officials on his way out of office, without Justice Department advice).
206. AUSTIN SARAT, MERCY ON TRIAL:WHAT IT MEANS TO STOP AN EXECUTION 69 (2005). The retributivist philosophers whose ideas eventually triumphed in the 1984 Sentencing Reform Act took a dim view of unruly pardon, considering it an unprincipled and unwelcome intrusion in the law's enlightened process.
207. See MOORE, supra note 16, at 28-34, 84. Utilitarian theory also had no use for pardon, believing that "clemency is a virtue which ought to shine in the code, and not in private judgment."
208. Id. at 39
209. (citing C.B. BECCARIA, AN ESSAY ON CRIMES AND PUNISHMENT 158-59 (1953)). Moore herself espouses a retributivist view of pardon as "an act of justice rather than an act of mercy."
210. Id. at 129;
211. see also id. at 213 (arguing that "a justified pardon is one that corrects injustice rather than tempers justice with mercy"). Moore's retributivist theory of pardon is compared with Jeffrie Murphy's theory of "public mercy" in Margaret Colgate Love, Of Pardons, Politics and Collar Buttons: Reflections on the President's Duty to be Merciful, 27 FORDHAM URB. L.J. 1483, 1500-09 (2000).
212. Perhaps inadvertently, in ridding the legal system of discretionary relief provisions like parole, Congress left a key residual role for clemency as "fail safe." Herrera v. Collins, 506 U.S. 390, 415 (1993) (quoting MOORE, supra note 16, at 131).
213. James Vorenberg, Executive Director of President Johnson's Commission on Law Enforcement and the Administration of Justice, commented on the growing threat of crime in a 1972 piece in The Atlantic, opining that "during the past five years the frustration of poor people and minorities with continued denial of opportunities to improve their lives by lawful means has made reliance on crime an increasingly acceptable alternative."
214. James Vorenberg, The War on Crime: The First Five Years, THE ATLANTIC, May 1972, available at http://www.theatlantic.com/past/politics/crime/crimewar.htm.
215. See generally DAVID C. ANDERSON, CRIME AND THE POLITICS OF HYSTERIA (1995). Another danger was that a particular grant might be distorted and give a mistaken impression of the Administration's commitment to crime control. For example, after President Bush pardoned a particularly deserving and well-known individual who had been convicted of a minor marijuana possession offense thirty years before, the grant was characterized as "especially ironic, given the administration's current push to enact tougher penalties on drug offenders." Tom Watson, In Rare Move, Bush Pardons Drug Offender; Civic Service, Campaign Win Forgiveness for Harlem Globetrotter, LEGAL TIMES, Mar. 18, 1991, at 1;
216. see also Pardon Me, LEGAL TIMES, Oct. 7, 1996, at 3 (quoting Rep. Curt Weldon, R-Pa.: "I don't know how you can champion yourself in the debate on drug use when you pardon drug dealers.").
217. See Love, supra note 17, at 7-8.
218. See supra note 36.
219. In the Reagan Administration, the pardon attorney described his office's more "exacting" scrutiny of pardon applications "to better reflect the administration's philosophy toward crime." Pete Earley, Presidents Set Own Rules on Granting Clemency, WASH. POST, Mar. 19, 1984, at A17; see also Larry Margasak, Any Pardons Would Come After Election Day, Observers Say, ASSOC. PRESS, Jan. 18, 1988 ("[T]he administration's use of career prosecutors to screen pardon requests has resulted in a natural inclination for tighter scrutiny."). All but a handful of the individuals officially responsible for approving Justice Department clemency recommendations since 1983 have been former federal prosecutors.
220. See Margaret Colgate Love, Fear of Forgiving: Rule and Discretion in the Practice of Pardoning, 13 FED. SENT'G REP. 125, 126 n.23 (2001). As a practical matter, JusticeDepartment pardon policy and practice has been controlled since 1997 by David Margolis, a career prosecutor on the staff of the Deputy Attorney General.
221. To manage the caseload, the Pardon Attorney was directed by the Office of the Deputy Attorney General to prepare summary reports recommending denial of clemency in all cases except those in which a Member of Congress or the White House had expressed an interest. See Memorandum from Roger Adams to Margaret Love (Oct. 23, 1993) (on file with author). While this directive was later retracted, its spirit continued to inform the Justice Department's administration of the pardon power. Of the sixty-one commutations granted by President Clinton during his eight years in office, no more than a handful were favorably recommended by the Justice Department. Several of these were requested by prosecutors to fix their mistake.
222. See, e.g., Exec. Grant of Clemency to Johnny Palacios, Aug. 21, 1995 (on file with Office of the Pardon Attorney) (cooperator for whom prosecutor had neglected to timely file a sentence reduction motion); Exec. Grant of Clemency to Alain Orozco, July 5, 2001, discussed in David M. Zlotnick, Federal Prosecutors and the Clemency Power, 13 FED. SENT'G REP. 168, 169 (2001).
223. See, e.g., Marc Mauer, The Fragility of Criminal Justice Reform, 21 SOC. JUST. 14, 21 (1994) (describing Clinton's effort to "'take the crime issue away' from Republicans"); Tony G. Poveda, Clinton, Crime and the Justice Department, 21 SOC. JUST. 73, 75 (1994) ("[I]n the Clinton era. ideas that are outside the scope of the current ideological hegemony of 'get tough' crime policies will be selectively ignored or silenced.").
224. See OPA CLEMENCY STATISTICS, 1945-PRESENT, supra note 1; see also Margaret Colgate Love, The Pardon Paradox: Lessons from Clinton's Last Pardons, 31 CAP. U. L. REV. 185, 196 n.38 (2003) [hereinafter Love, Paradox] (describing irregular consideration of pardons at the White House throughout the Clinton presidency).
225. See THE PARDON ATTORNEY REFORM AND INTEGRITY ACT, S. REP. NO. 106-231, at 8 (2000) (commutation of sixteen Puerto Rican terrorists without Justice Department advice);
226. see also Darryl W. Jackson et al., Bending Toward Justice: The Posthumous Pardon of Lieutenant Henry Ossian Flipper, 74 IND. L.J. 1251 (1999) (describing Pardon Attorney'srefusal to docket posthumous pardon application on behalf of first black West Point graduate).
227. See Love, Paradox, supra note 108, at 196 (citing P.S. Ruckman, Jr., Federal Executive Clemency in the United States, 1789-1995: A Preliminary Report (Nov. 1995) (paper presented at the annual meeting of the Southern Political Science Association, Tampa, Florida, on file with author)).
228. See, e.g., President William J. Clinton, Remarks at the Ceremony Appointing Roger Gregory to an Interim Seat on the Fourth Circuit Court of Appeals (Dec. 27, 2000), reprinted in 13 FED. SENT. REP. 228 (2000) [hereinafter Gregory Remarks] ("I wish I could do some more [pardons]-I'm going to try. I'm trying to get it out of the system that exists, that existed before I got here, and I'm doing the best I can."). Newsweek reported an incident in early January in which the President wandered into the press section of Air Force One on a trip to Arkansas and asked "You got anybody you want to pardon?" Weston Kosova, Backstage at the Finale, NEWSWEEK, Feb. 26, 2001, at 30.
229. Jan Wenner, Bill Clinton: The Rolling Stone Interview, ROLLING STONE, Dec. 28, 2000, at 98 ("We really need a reexamination of our entire policy on imprisonment. [A] lot of people are in prison today because they have drug problems or alcohol problems. I think the sentences in many cases are too long for nonviolent offenders. I think [mandatory minimum sentences] should be reexamined.").
230. Gregory Remarks, supra note 111, at 228: I have always thought that Presidents and governors. should be quite conservative on commutations-that is, there needs to be a very specific reason if you reduce someone's sentence or let them out-but more broad-minded about pardons because, in so many states in America, pardons are necessary to restore people's rights of citizenship. Particularly if they committed relatively minor offenses, or if some years have elapsed and they've been good citizens and there's no reason to believe they won't be good citizens in the future, I think we ought to give them a chance, having paid the price, to be restored to full citizenship.
231. The Controversial Pardon of International Fugitive Marc Rich: Hearings Before the H. Comm. on Government Reform, 107th Cong. 1st Sess. 342-43 (2001) [hereinafter House Hearings] (testimony of Beth Nolan, Counsel to former President Clinton, describing unresponsive Justice Department pardon process at the conclusion of the Clinton Administration, and the ensuing frantic effort at the White House in the final weeks to process the hundreds of clemency requests coming directly to the White House); see also Love, Paradox, supra note 108, at 191-97 (describing run-up to final Clinton pardons, the failure of the Justice Department pardon process, staffing of pardons in the White House, and the grants themselves).
232. House Hearings, supra note 114, at 342-43.
233. Ms. Nolan reported that in the final weeks the White House was "inundated" with pardon requests, and importuned by influential people, including members of Congress, about particular cases: They were coming from everywhere. We had requests from members of Congress on both sides of the aisle and both Houses. We had requests from movie stars, newscasters, former Presidents, former first ladies. There wasn't anybody-I refused to go to holiday parties because I couldn't stand being-nobody wanted to know how I was, thank you very much. They wanted to know about a pardon. So I just didn't go. Id. A chart distributed by the Department of Justice to members of the press on February 13, 2001, reveals that upwards of thirty of the recipients of pardon or commutation on January 20 filed applications with the Justice Department in the final weeks (or even days) days of President Clinton's term, leaving no time for them to be considered in the ordinary course. A like number did not file applications with the Department at all. The chart, which was never published and is untitled, is on file with author.
234. See, e.g., Kurt Eichenwald & Michael Moss, Rising Number Sought Pardons in Last 2 Years, N.Y TIMES, Jan. 29, 2001, at A1;
235. Peter Slevin & George Lardner, Jr., Rush of Pardons Unusual in Scope, Lack of Scrutiny; Back-Door Lobbying Had Large Role in Clinton's Decisions, Observers Say, WASH. POST, Mar. 10, 2001, at A3;
236. Don Van Natta Jr. & Marc Lacey, Access Proved Vital in the Race to Secure a Pardon from Clinton, N.Y TIMES, Feb. 25, 2001, at A1.
237. The atmosphere at the White House in the final weeks was likened by former Attorney General Dick Thornburgh to a "Middle Eastern bazaar." Love, Paradox, supra note 108, at 199 n.44.
238. See House Hearings, supra note 114. In the summer of 2002, the House Committee on Government Reform published a three-volume report on its investigation into the final Clinton pardons, which focuses on a dozen or so of the most controversial cases. See generally JUSTICE UNDONE: CLEMENCY DECISIONS IN THE CLINTON WHITE HOUSE, H.R. REP. NO. 107-454 (2002) [hereinafter JUSTICE UNDONE].
239. See also id. at 1309-20 (describing White House staff handling of the Carlos Vignali petition);
240. id. at 1195-1231, 1468-71, 1686-1707 (charts prepared by White House staff noting support for particular clemency applicants).
241. For a colorful account by a member of the loyal opposition, including a representative sampling of the extensive contemporary press coverage,
242. see BARBARA OLSON, THE FINAL DAYS 113-93 (2001). For further discussion of the final grants,
243. see Love, supra note 114, at 188-93 (2003).
244. See Goldstein & Schmidt, supra note 17, at A1. Mr. Adams reported that some requests from the White House arrived so late in the evening on Friday that his office did not have time to conduct record checks with the FBI. Among the names his office received for the first time on the night of January 19 were the President's brother, Roger Clinton, and Richard Riley Jr., the son of Clinton's Secretary of Education. Id. Three weeks later, Mr. Adams again described the harrowing final hours in testimony before the Senate Judiciary Committee. See Recent Presidential Pardons: Testimony Before the S. Comm. on the Judiciary, 107th Cong. (2001) (statement of Roger C. Adams, Pardon Attorney).
245. The President pardoned his brother Roger Clinton's 1985 cocaine trafficking conviction, but did not pardon any of the individuals Roger Clinton had reportedly recommended.
246. See JUSTICE UNDONE, supra note 117, at 709-831;
247. see also infra note 124, for description of grants to long-time friends Fife Symington and Paul Prosperi.
248. The morning after the pardons were issued, the Washington Post noted: "Clinton appeared to be tying up loose ends from many of the independent counsel investigations that had daunted him and several senior members of his administration virtually from the beginning of his tenure." Goldstein & Schmidt, supra note 17, at A1;
249. see also Stephen Braun & Richard Serrano, Clinton Pardons: Ego Fed a Numbers Game, L.A. TIMES, Feb. 25, 2001, at A1.
250. The President pardoned four individuals convicted as a result of the Whitewater Independent Counsel investigation (Susan McDougal, Christopher V. Wade, Stephen A. Smith, Robert W. Palmer), his former Housing Secretary Henry Cisneros, and Linda Medlar Jones. Goldstein & Schmidt, supra note 17, at A1.
251. He also "wiped the slate clean" on the Independent Counsel's investigation of former agriculture secretary Mike Espy, commuting the sentence of Espy's former chief of staff Ron Blackley and pardoning Richard Douglas, Alvarez T. Ferouillet, John J. Hemmingson, and James Lake (Archibald R. Schaffer III had been pardoned on December 22, 2000, shortly before his sentencing). Id. The President reportedly struggled over whether to pardon his former close political associates Webb Hubbell and Jim Guy Tucker, both convicted as a result of the Whitewater investigation, but in the end did not.
252. See OLSON, supra note 118, at 160; Would You Pardon Them?, TIME, Feb. 18, 2001, available at http://www.time.com/time/magazine/article/0,9171,99871-2,00.html.
253. See, e.g., JUSTICE UNDONE,supra note 117, at 99-266.
254. Commutation grants were made to Harvey Weinig, a New York lawyer convicted of money laundering for a major drug organization, who had been privy to a murder-for-hire scheme and whose commutation was vigorously opposed by the U.S. Attorney and the Justice Department, see Benjamin Weiser, A Felon's Well-Connected Path to Clemency, N.Y. TIMES, Apr. 14, 2001, at A1; four Hasidic Jews convicted of embezzling federal grant money intended to benefit their own small community,
255. see Randal C. Archibold, Behind Four Pardons, a Sect Eager for Political Friends, N.Y. TIMES, Feb. 5, 2001 at B1; Dorothy Rivers and Mel Reynolds, both serving prison terms for fraud and both reportedly recommended for release by the Reverend Jesse Jackson,
256. see OLSON, supra note 118, at 156-58;
257. Deborah A. Devaney, A Voice for Victims: What Prosecutors Can Add to the Clemency Process, 13 FED. SENT'G REP. 163, 165-66 (2001). Pardon grants went to a number of well-connected Arkansas businessmen and lawyers who never filed an application with the Justice Department.
258. See OLSON, supra note 118, at 156-67.
259. One case that proved embarrassing to the President was that of A. Glen Braswell, whose 1983 conviction for mail fraud and perjury was pardoned even though he was then the subject of an FBI investigation for tax evasion and money laundering.
260. See Christopher Marquis & Michael Moss, A Clinton In-Law Received $400,000 in 2 Pardon Cases, N.Y. TIMES, Feb. 22, 2001, at A1. It was reported in the press that he had paid Hugh Rodham $200,000 to press his case at the White House.
261. In January 2003, Braswell was arrested and charged with tax evasion. SeeCalif. Businessman Pardoned by Clinton Arrested for Tax Evasion, ASSOC. PRESS, Jan. 14, 2003.
262. Clinton pardoned his friend J. Fife Symington, III, former Governor of Arizona, who was at the time awaiting retrial on charges of mail fraud, and John Deutsch, former Director of Central Intelligence, who had pled guilty only the day before of misusing classified information.
263. See Bill Miller & Walter Pincus, Deutsch Had Signed Plea Agreement, Sources Say, WASH. POST, JAN. 24, 2001, at A13. Howard Mechanic, a fugitive from justice for three decades faced with a return to prison, was granted a full pardon rather than the commutation he had sought.
264. See Dennis Wagner & Brent Whiting, Mechanic Receives Pardon, Action Springs Him from Jail, ARIZ. REPUB., Jan. 21, 2001, at A23. In what may have been the most unusual use of the power, the President preemptively commuted the sentence of his college classmate Paul Prosperi, a Florida lawyer who awaiting resentencing after a conviction of counterfeiting securities and tax evasion. The warrant manifesting the Prosperi grant stated: "I further hereby commute any total period of confinement that has already been imposed or could be imposed. that is in excess of 36 months, and I further commute any such period of confinement to be served in home confinement." Exec. Grant of Clemency to Paul Prosperi (Jan. 20, 2001) (on file with Office of the Pardon Attorney);
265. see Leon Fooksman, Embezzler Gets House Arrest: Ex-Lawyer Stole $1.8 Million from Irish Client, FORT LAUDERDALE SUN-SENTINEL, March 3, 2001, at B1. Many of the pardon grantees, including those whose convictions been obtained by an independent counsel, did not satisfy the five-year eligibility waiting period in Justice Department regulations, and some had not even applied for clemency.
266. See infra note 133.
267. See Statement on Granting Executive Clemency to I. Lewis Libby, 43 WEEKLY COMP. PRES. DOC. 901 (July 2, 2007).
268. See Dan Eggen & Carrie Johnson, Bush Commutes Sentences of Ex-Agents, WASH. POST, Jan. 20, 2009, at A2; Josh Meyer, Bush Commutes Terms of Convicted Border Agents, L.A. TIMES, Jan. 20, 2009, at A1.
269. Bush's final grant tally was 189 pardons, most of them to individuals with convictions more than twenty years old who had served no prison time, and 11 commutations. Five of the commutations went to drug offenders evidently recommended by Justice, three of whom were near the end of a long mandatory sentence. Of the other six commutations, two may have been granted over a denial recommendation from Justice (Forte, Harris), and the other four were granted without Justice Department recommendations (Libby, Prior, Ramos and Compean). On the Forte grant,
270. see Sara Netter, From Grammys to Prison to Freedom, ABCNEWS.COM, Nov. 26, 2008, http://abcnews.go.com/TheLaw/Music/story?id=6333613&page=1. On Prior, see Rox Laird, One Lawyer, Then Notable Iowans, Then Bush Saw Sentence as Unjust, DES MOINES REG., Jan. 4, 2009, at 30P; Grant Schulte, Pardoned by Bush, Iowan Returns to Freedom, DES MOINES REG. Oct. 16, 2009, at 1. On Ramos and Compean, see supra note 124 (press accounts). One additional pardon was granted to Isaac Toussie without a recommendation from the Justice Department, but it is not counted among the official grants because President Bush later declared that it had been revoked.
271. See Charlie Savage, On Clemency Fast Track, via Oval Office, N.Y. TIMES, Jan. 1, 2009, A1.
272. See Love, Final Report Card on Pardoning by George W. Bush,
273. In the fall of 2006, Bush's White House Counsel Harriet Miers reportedly urged the Justice Department to produce more favorable grants, much as Beth Nolan had done toward the end of the Clinton administration. Her request had no discernible effect on the production of favorable recommendations. Ms. Miers was replaced shortly thereafter by Fred Fielding as Counsel to the President, who evidently took no interest in pardons until the final months ofBush's term.
274. See, e.g., Richard Schmitt, Clemency Bids Backing Up for Bush; More than 3,000 Petitions by Federal Inmates Are Pending, L.A. TIMES, Nov. 22, 2007, at A15.
275. See, e.g., Charlie Savage, Felons Seeking Bush Pardon Near a Record, N.Y. TIMES, July 19, 2008, at A1.
276. See Savage, supra note 128, at A1 (describing pardons granted to clients represented by former lawyers in Bush White House Counsel's office);
277. Laird, supra note 128, at 30P (describing December 17, 2008, meeting at White House between Iowa delegation supporting clemency for Prior and White House Counsel Fred Fielding); Schulte, supra note 128, at 1 (same).
278. ("A huge backlog at the Justice Department's pardon review office combined with the relatively small number of clemency grants by recent presidents. encourages people to try to end-run the process-to try to cheat, for lack of a better word, to gain access to the White House directly," quoting pardon scholar P.S. Ruckman).
279. See GEORGE W. BUSH, DECISION POINTS 104 (2010): One of the biggest surprises of my presidency was the flood of pardon requests at the end. I could not believe the number of people who pulled me aside to suggest that a friend or former colleague deserved a pardon. At first I was frustrated. Then I was disgusted. I came to see the massive injustice in the system. If you had connections to the president, you could insert your case into the last-minute frenzy. Otherwise, you had to wait for the Justice Department to conduct a review and make a recommendation. In my final weeks in office, I resolved that I would not pardon anyone who went outside the formal channels. President Bush recounted how he had been particularly vexed by Vice President Cheney's intense lobbying in behalf of Scooter Libby,
280. id. at 104-05, and how he had advised his successor about how to deal with pardons so as to avoid such personally difficult situations: "On the ride up Pennsylvania Avenue on Inauguration Day, I told Barack Obama about my frustrations with the pardon system. I gave him a suggestion: announce a pardon policy early on, and stick to it."
281. Id. at 105.
282. Nancy Pelosi, a fellow passenger in the presidential limousine, gave her version of the conversation in an interview with CNN's Larry King, reporting that Bush said he was "very proud" of not issuing pardons to the politically well-connected. "He said people who have gotten pardons are usually people who have influence or know friends in high places," a route that is "not available to ordinary people," Pelosi said. "He thought that there was more access for some than others and he was not going to do any." Josh Meyer, Bush Rejected Pardons for Big-Name Applicants, CHI. TRIB., Jan. 28, 2009, at 10.
283. See David Stout & Eric Lichtblau, Pardon Lasts Just One Day for Developer in Fraud Case, N.Y. TIMES, Dec. 25, 2008, at A14 (stating that White House directed Pardon Attorney not to execute document conveying pardon to Isaac Robert Toussie, apparently because he had made substantial campaign contributions to the Republican Party). Questions about whether the Toussie pardon had already become effective and therefore could not be revoked were unresolved at the time President Bush left office.
284. See Savage, Felons Seeking Bush Pardon Near Record, supra note 130, at A1.
285. MOORE, supra note 16, at 83.
286. See BECCARIA, supra note 99.
287. See, e.g., Petition for Commutation of Sentence from Hamedah Hasan, available at http://www.dearmrpresidentyesyoucan.org/ (documenting broad support for clemency request from woman who has served sixteen years of a twenty-seven-year sentence for her role in a drug-trafficking scheme; request denied in 2005);
288. United States v. Harvey, supra note 20, 946 F.2d at 1378-79 (8th Cir. 1991) (expressing support for trial judge's recommendation that life sentence for drug trafficking be commuted after fifteen years). Hasan's first clemency petition was denied by President Bush in 2008, as was Harvey's. Mr. Harvey filed a second clemency petition in March 2010. See Mimi Hall, Convict PetitionsObama to Reduce Crack Penalty, USA TODAY, Apr. 28, 2010, http://www.usatoday.com/ news/washington/2010-04-27-clemency_N.htm.
289. STEPHEN R. SADY & LYNN DEFFEBACH, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE DISTRICT OF OREGON, THE SENTENCING COMMISSION, THE BUREAU OF PRISONS, AND THE NEED FOR FULL IMPLEMENTATION OF EXISTING AMELIORATIVE STATUTES TO ADDRESS UNWARRANTED AND UNAUTHORIZED OVER-INCARCERATION (2008), available at http://www.rashkind.com/alternatives/dir_04/Sady_Over-Incarceration.pdf (prepared for the U.S. Sentencing Commission Symposium on Alternatives to Incarceration).
290. Daniel J. Freed & Steven L. Chanenson, Pardon Power and Sentencing Policy, 13 FED. SENT'G REP. 119, 124 (2001).
291. See HAY, supra note 11, at 44 (describing pardon as "erratic and capricious, but a useful palliative until Parliament reformed the law in the 19th century"). The American Law Institute is considering a recommendation that jurisdictions make provisions for a "second look" at lengthy determinate sentences under certain circumstances.
292. Model Penal Code: Sentencing, Discussion Draft # 3, §§ 305.6, 305.7 (Mar. 29, 2010); Richard F. Frase, Second Look Provisions in the Proposed Model Penal Code Revisions, 21 FED. SENT'G REP. 194 (2009).
293. Particularly since 9/11, laws excluding people with a criminal record from jobs and other opportunities have proliferated, and decisionmakers have become more risk-averse. Background checks have become the norm for employers, landlords, and other decision-makers: there are now more than 600 companies engaged in the business of backgrounding, and many states have begun to make their court records available for a fee on the internet.
294. See AM. BAR ASS'N COMM'N ON EFFECTIVE CRIMINAL SANCTIONS, SECOND CHANCES IN THE CRIMINAL JUSTICE SYSTEM: ALTERNATIVES TO INCARCERATION AND REENTRY STRATEGIES36-45 (2007), available at http://www.pardonlaw.com/materials/rev_2ndchance(3).pdf (reporting on access to and use of criminal records, and on representation relating to collateral consequences);
295. see also Fact Sheet No. 16, Employment Background Checks: A Jobseekers Guide, PRIVACY RTS CLEARINGHOUSE, April 2010, http://www.privacyrights.org/ fs/fs16-bck.htm. Surprising as it may seem, in some states a federal offender cannot exercise basic civil rights, including the right to vote, without a presidential pardon. As a result of this web of "invisible punishment," most people convicted of a crime in America are deprived of the tools necessary to reestablish themselves as law-abiding and productive members of the free community. The fact that so many of this population are African-American only aggravates the phenomenon that has been described as "internal exile."
296. See Nora V. Demleitner, Preventing Internal Exile: The Need For Restrictions on Collateral Sentencing Consequences, 11 STAN. L. & POL'Y REV. 153, 157 (1999);
297. see also Jeremy Travis, Invisible Punishment: An Instrument of Social Exclusion, in INVISIBLE PUNISHMENT: THE SOCIAL COSTS OF MASS IMPRISONMENT 16 (Meda Chesney-Lind & Marc Mauer eds., 2002);
298. KELLY SALZMANN & MARGARET LOVE, AM. BAR ASS'N COMM'N ON EFFECTIVE CRIMINAL SANCTIONS, INTERNAL EXILE: COLLATERAL CONSEQUENCES OF CONVICTION IN FEDERAL LAWS AND REGULATIONS, (2008), available at http://www.abanet.org/cecs/internalexile.pdf.
299. See Love, supra note 8, at 1722-23; Salzmann & Love, supra note 142, at 45-46.
300. Freed & Chanenson, supra note 140, at 123.
301. See Zlotnick, supra note 106 (analyzing five 2000 Clinton commutations where rationale for grant served prosecutors' interests, including correction of a mistake).
302. Freed & Chanenson, supra note 140, at 124.
303. The 1939 Justice Department survey of release procedures in the United States pointed out that pardon was the "direct or collateral ancestor of most [statutory release procedures]."
304. 3 SURVEY OF RELEASE PROCEDURES, supra note 59, at 295.
305. In addition, pardon was "the tool by which many of the most important reforms in the substantive criminal law have been introduced."
306. The Scooter Libby commutation is a reminder of how powerfully the president can speak from this bully pulpit. The fact that President Bush found Mr. Libby's thirty-month sentence "excessively harsh" (even though it was entirely legal) may influence courts looking at other similar cases, embolden defenders arguing for leniency, and encourage the United States Sentencing Commission to rethink its guidelines.
307. See, e.g., Lyle Denniston, Rita, Citing Libby Order, Seeks Rehearing, SCOTUSBLOG, July 16, 2007, http://www.scotusblog.com/2007/07/rita-citing-libby-order-seeks-rehearing/. While the Libby grant itself is unlikely to persuade Congress or the courts that prison terms for nonviolent offenses should be reduced, a more systematic use of the power in less politically charged cases might do so.
308. 3 SURVEY OF RELEASE PROCEDURES, supra note 59, at 299.
309. See, e.g., Nina Bernstein, Paterson Rewards Redemption with a Pardon, N.Y. TIMES, Mar. 7, 2010, at A29 (quoting statement of Governor Paterson describing the pardon of highly-recommended Chinese immigrant as "the opportunity to make a forceful statement about the harsh inequity and rigidity of the immigration laws").
310. See, e.g., Adam Liptak, Bush Rationale on Libby Stirs Legal Debate, N.Y. TIMES, July 4, 2007, at A1 ("In commuting I. Lewis Libby's 30-month prison sentence on Monday, President Bush drew on the same array of arguments about the federal sentencing system often made by defense lawyers-and routinely and strenuously opposed by his own Justice Department.");
311. see also George W. Bush, supra note 126 (describing Libby's thirty-month prison term "excessive" for "a first-time offender with years of exceptional public service").
312. See Samuel T. Morison, Opinion, A No-Pardon Justice Department, L.A. TIMES, Nov. 6, 2010, http://articles.latimes.com/2010/nov/06/opinion/la-oew-morison-pardon-20101106 ("[T]he bureaucratic managers of the Justice Department's clemency program continue to churn out a steady stream of almost uniformly negative advice, in a politically calculated attempt to restrain (rather than inform) the president's exercise of discretion.").
313. See, e.g., Daniel T. Kobil, Reviving Presidential Clemency in Cases of "Unfortunate Guilt," 21 FED SENT'G REP. 160, 163 (2009) ("Given the prosecutorial responsibilities of the Justice Department, there is a conflict of interest present when its attorneys must also serve as the gatekeepers for clemency.")
314. Evan P. Schultz, Does the Fox Control Pardons in the Henhouse?, 13 FED. SENT'G REP. 177, 178 (2001) ("The pardon process seems to have been captured by the very prosecutors who run our inevitably flawed criminal justice system.").
315. See Barkow, supra note 5, at 157 (stating that administrative clemency boards can "take the heat for decisions that turn out badly"); Kobil, supra note 153, at 163 ("[T]he president should look for advice to either a body of professionals charged with the sole task of reviewing clemency requests, or to a group of volunteers appointed because of their expertise."). A recent example is Michigan Governor Jennifer Granholm's use of a citizens' advisory board in commuting prison sentences.
316. See Liedel, supra note 5, at A28 ("Prisoner commutations have been rare and safe for public"). State clemency boards are described in RESOURCE GUIDE, supra note 5, at 18-38.
317. See Brian M. Hoffstadt, Guarding the Integrity of the Clemency Power, 13 FED. SENT'G REP. 180, 181-82 (2001) (stating that responsibility for staffing clemency cases should remain in the Justice Department, but program should be restructured so as to restore attorney general's role in process). The president might also choose to emulate President Cleveland in his second term, and work directly with the pardon attorney.
318. See 1924 ATT'Y GEN. REP. 387 (1924), discussed in HUMBERT, supra note 13, at 94 (board appointed to consider cases prosecuted under wartime emergency authorities that pardon attorney staff "did not have time to investigate properly");
319. Exec. Order 9814, 11 Fed. Reg. 14,645 (1946) (order creating board to consider pardons for Selective Service Act violators after World War II); U.S. PRESIDENTIAL CLEMENCY BD., REPORT TO THE PRESIDENT (1975) (administration of President Ford's Vietnam amnesty proclamation); see also Daniel Kobil, The Quality of Mercy Strained: Wresting the Pardoning Power from the King, 69 TEX. L. REV. 569, 622 (1991) (recommending bifurcated system, involving appointed board to consider and make recommendations in "ordinary" pardon cases, leaving the president unconstrained to consider more "political" uses of the power).
320. CROUCH, supra note 14, at 24. Prior to the Reagan Administration, presidents acted favorably on at least 30% of the petitions filed.
321. See supra note 79 and accompanying text.
322. Freed & Chanenson, supra note 140, at 124.
323. See, e.g., VIRGINIA GOVERNOR'S ANNUAL REPORTS TO GENERAL ASSEMBLY (1974-Present) available at http://leg2.state.va.us/DLS/h&sdocs.nsf/Search+All+Published/?SearchView&SearchOrder=4&query=clemency ("List of Pardons, Commutations, Reprieves, and Other Forms of Executive Clemency," including reasons for granting pardon in each case).
324. See, e.g., 18 U.S.C. § 3582(c)(l)(A)(i) (2006) (granting court authority to reduce sentence on motion of the Bureau of Prisons if "extraordinary and compelling reasons" warrant such a reduction); 8 U.S.C. § 1231(a)(4) (2006) (granting authority to deport certain non-citizen prisoners).
325. See supra note 49.
326. It has been customary since the early 1990s for the pardon attorney to prepare very cursory reports in cases deemed meritless and otherwise unworthy of the president's attention. During the Obama presidency, the author understands that the pardon attorney has stopped sending forward reports in most commutations, providing little more than the name and offense of clemency applicants proposed for denial. It is obviously difficult for the president to reach an independent assessment of the merits of a clemency case without at least some report.
327. According to news reports, discussions about restructuring the pardon process took place in the Justice Department and White House during the early months of the Obama Administration, but proposal for thoroughgoing reforms were shelved after the two high-ranking officials interested in the subject left the administration.
328. See Joe Palazzolo, Despite Efforts, Pardon System Still Unchanged, MAIN JUSTICE, Apr. 20, 2010, http://www.mainjustice.com/2010/04/20/despite-efforts-pardons-system-still-unchanged/. Meanwhile, calls for reform of the pardon process have come even from the Supreme Court. See Josh Gerstein, Justice Kennedy Prods Obama to Commute Sentences, POLITICO, Mar. 30, 2010, http://www.politico.com/blogs/joshgerstein/0310/Justice_Kennedy_prods_Obama_to_commute_sentences.html;
329. see also Kenneth Lee, Obama Should Exercise the Pardon Power, NAT'L L.J., April 12, 2010, http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202447826608&Obama_should_exercise_the_pardon_power&hbxlogin=1;
330. Margaret Colgate Love, Looking for the Pardon Power? Try the Supreme Court, ACSBLOG, Apr. 14, 2010, http://www.acslaw.org/node/15863.