September 30, 2005
More on Pardons
"There's not a lot to say about these particular pardon grants - like all but one of Bush's 58 pardons, they appear pretty unremarkable, granted to ordinary people convicted of garden variety crimes, generally quite minor and at least ten years in the past. Most of the recipients did not even serve a prison sentence, and there are few drug convictions among them. (The only unusual Bush pardon grant went about 18 months ago to David McCall, a Texas politician whose deathbed petition was hurried through the application process in three days.)"Note that these are all post-sentence pardons. President Bush has granted only two commutations, in May of 2003, to two otherwise unremarkable people who were old and sick, had served at least ten years each, and were both within six months of release in the ordinary course. (These two grants have always mystified me, though perhaps it is significant that they came a few weeks after Bush was criticized in a news article as having granted no commutations at all.)
"What I think is more significant about the 14 pardons off September 28 is that they appear to confirm a return to regular and frequent pardoning that had characterized federal practice until the Clinton administration. President Bush has issued five pardon warrants since November 2004, one every two months. Each warrant grants pardon only to a handful of people, but the very fact that they are being issued in such a regular, low-key and noncontroversial manner gives me hope that as his tenure comes to a close he will pick up the pace, and that a presidential pardon will once again become something that all deserving people can hope to obtain.
"As it is, however, the pardon power cannot be relied upon as a source of relief from the collateral consequences of conviction in the same way it was under presidents prior to Ronald Reagan. There are now more than 800 pardon applications awaiting action by the President, some of which were filed as long ago as the Clinton administration, and many of which are just as deserving as those that were granted. Presumably many have died while standing in line."The reason it is important for federal pardons to become a realistically available remedy is that pardon is now the only way that federal offenders can avoid or mitigate collateral penalties and disabilities that are imposed automatically upon conviction, some of which arise under federal law, but most of which are contained in state codes and administrative practice. Many states that have a similarly ineffective pardon mechanism have been developing alternative ways to help rehabilitated offenders escape these burdens of conviction, as well as the stigma that prevents many people from reintegrating into society after the court-imposed sentence has been fully served. But there is no federal exungement or set-aside procedure, and no administrative certificate of good conduct. (My study of state and federal pardoning and other relief mechanisms will be published by William Hein later this fall - but a preview is available on the Sentencing Project website. See http://www.sentencingproject.org/rights-restoration.cfm.)"Let us hope that President Bush will make more of his pardoning power in the months ahead, for he has received only encouragement from the press, and no criticism at all from the political opposition. Perhaps if more people applied for pardon, the importance of making pardon an integral part of the justice system would be underscored. In addition, perhaps Congress would consider enacting an alternative mechanism for restoration of rights and relief from disabilities for federal offenders. Last year the ABA House of Delegates approved a recommendation of the ABA Justice Kennedy Commission urging federal and state governments to expand the use of clemency, and calling upon bar associations â€œto establish programs to encourage and train lawyers to assist prisoners in applying for pardon, restoration of legal rights and privileges, relief from other collateral sanctions, and reduction of sentence.â€ I don't know that any bar associations have done so, but perhaps we will see a response from individual lawyers. If every lawyer who reads this blog took just one pro bono federal clemency case, we would flood the system and official Washington would have to pay attention!"
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