Saturday, December 24, 2005
Everyone is talking about President Bush's latest set of pardons. (see Professor Doug Berman's Sentencing Blog here; Talk Left here) From a white collar crime perspective, of the 11 pardons it looks like two are clearly white collar offenses (false statements on loan applications), six are clearly not white collar offenses, and the remaining three are questionable (three tax charges with two related to liquor) (see Press Release here for the specific offenses-thank you Doug Berman for this link).
Margaret Colgate Love, who served as US Pardon Attorney for seven years, comments on the recent Bush pardons as follows:
"I don't know what can be said about these pardons except that there is not much that can be said about them. There seems to be no discernable principle of selection here, and evidently no message - except that President Bush continues to exercise the pardon power in a very conservative manner, doing just enough to avoid being labeled stingy. He has pardoned only 69 people in five years, about 7% of pardon applications acted on during this period, an absolute number and rate that is lower than any president in the past 100 years. It is curious to me (though not surprising) that elsewhere he presses the outer limits of constitutional powers that most regard as shared with the other branches, while appearing quite timid and uninspired where it comes to exercising the one power that is truly totally his own.
"The Colorado lawyer is the only vaguely interesting case here, though hers does not seem remarkable at all from a historical point of view: she is clearly eligible, and appears to meet the criteria of rehabilitation and repentance. Her case is interesting only because it is the only interesting one in the batch, and undoubtedly bobbed to the top of the heap because of the importunings of her employer, a big GOP donor according to press reports. The rest appear plainly of the "packing peanuts" variety: six of the 11 were convicted forty or more years ago (one a vintage 1948 Dyer Act, another a 1950's era bootlegger), and only two of the 11 were convicted less than twenty years ago. When you consider that there are over 800 people who have filed pardon applications and are waiting in line for a decision, some for many years (I have five very pedestrian cases dating from the Clinton era) it raises questions about the purpose of the whole program. (I am not even going to comment on the commutation caseload, which has been completely neglected.) Applying for a pardon has become like buying a lottery ticket, and granting a pardon has become a random act of unexplained kindness, a far cry from what the program offered as recently as the late 1980's. Then at least the people who met the Justice Department's criteria could expect a favorable decision from the White House. Now it appears that the WH is cherry-picking cases from those recommended by the Department, to ensure maximum safety.
"It really is too bad that this program gets so little respect. It is the only way a federal offender can fully satisfy the penalty imposed upon conviction, since there is no federal expungement or sealing, and no administrative restoration mechanism. Because there is no other way under federal law that a person can avoid or mitigate the collateral consequences of conviction, federal offenders remain forever barred from many jobs and benefits and even civil rights, because of their conviction. I am not a particular fan of guns, but many would-be hunters remain permanently saddled with a disability that has absolutely nothing to do with their offense of conviction. Why should someone who cheated on their taxes not be able to shoot skeet?"It is my hope that one day this program will be revived, and that in addition there will be devised some mechanism (perhaps through the courts) whereby people convicted of federal crimes can fully pay their debt to society and regain the legal status of an ordinary citizen. In the meantime, I am at least thankful that President Bush is issuing warrants with some regularly (four in calendar 2005). I will await with interest the inevitable crush of favor-seekers as his term begins to wind down, to see if it might jog loose some of the ordinary folks whose cases have been languishing. Of course he may go out the door leaving what will then be over 1000 cases to be decided by his successor . . ."
Thank you Margy Love for these most thoughtful comments.