CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, August 25, 2014

Barkow & Osler on Clemency

Rachel E. Barkow and Mark William Osler (New York University School of Law and University of St. Thomas - School of Law (Minnesota)) have posted Restructuring Clemency: The Cost of Ignoring Clemency and a Plan for Renewal (University of Chicago Law Review, 2014, Forthcoming) on SSRN. Here is the abstract:

Over the past three decades, the pardon power has too often been ignored or used to create calamities rather than cure them. Our most recent Presidents seem to realize the system is not working only at the end of their time in office, when they feel safe in giving grants but become aware of the fact that the system does not produce many recommendations for doing so even when asked. As a key constitutional power, clemency deserves to be more than an afterthought to a presidential term. 

The use of the pardon power is a necessary element in a fully-functioning system of criminal law. Recent presidents, however, have largely ignored this powerful tool, even as some have sought to expand the power of the office in other ways. This essay seeks both to describe the costs of this trend and to propose important structural reforms to reverse it.

Specifically, we advocate for the creation of an independent commission with a standing, diverse membership. While this commission should have representation from the Department of Justice and take the views of prosecutors seriously, the commission itself should exist outside the Department and its recommendations should go directly to the White House. This new model of clemency should also pay attention to data both to create uniform standards and to focus the use of the pardon power on policy as a management tool. An emphasis on data will also help the new pardon commission make evidence-based decisions about risk and reentry. It is time to view clemency reform as a priority for the office of the presidency no matter who holds the position. This is the time to create a better machine of mercy.

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