Institutional prosecutorial bias limits federal pardon recommendations from DOJ

Having been focused lately on questions of clemency, I was pleased yesterday to receive an email from Samuel Morison, who was a staff attorney for ten years at the federal Office of the Pardon Attorney and recently resigned, publicly articulating his displeasure with the process. For Morison, the problem at the federal level is institutional. In a November 6 editorial in the LA Times titled "A No-Pardon Justice Department," he argued that it's problematic for the Justice Department to control the office because of competing institutional priorities:

the problem in the vast majority of garden-variety clemency cases — those involving ordinary applicants for whom a grant of clemency would not cause any public controversy — is precisely that recent presidents have given far too much deference to the pardon attorney's office. Having spent more than 10 years as a staff attorney in that office, I can say with some authority that the prevailing view within the Justice Department is that the pardon attorney's sole institutional function is to defend the department's prosecutorial prerogatives. There is little, if any, pretense of neutrality, much less liberality. On this parochial view, the institution of a genuinely humane clemency policy would be considered an insult to the good work of line prosecutors.

As a result, there is a strong presumption within the pardon office that the number of favorable recommendations should be kept to an absolute minimum, regardless of the equitable merits of any individual petition. This stance ignores the reality of a burgeoning federal prison population of more than 200,000 inmates, many serving lengthy sentences for nonviolent drug offenses, and the proliferation of collateral disabilities that hinder ex-offenders' ability to restart their lives, which the attorney general himself has criticized as a "recipe for high recidivism."

Until his nine pardons earlier this month - the longest it's taken any Democratic president in history to issue their first acts of clemency - Barack Obama had pardoned more Thanksgiving turkeys than US citizens, so I can understand Mr. Morison's frustration.

Reading about these institutional dynamics made me consider the position of the Texas Board of Pardons and Paroles as a de facto, semi-autonomous appendage of the Department of Criminal Justice. Indeed, for years the board chair's husband ran TDCJ's institutional division which operates the state's 112 prisons (before he was tapped to be "conservator" at the Texas Youth Commission then retired - I wonder what Ed Owens is doing these days?). So I wouldn't be surprised if there were conflicting institutional interests at work behind the scenes at the BPP, though perhaps not quite as blatantly as it sounds like is happening at the US Pardon Attorney's Office. That said, Governor Perry refuses clemency in about 70% of the cases they recommended to him, so there's little reason to think the problem lies solely with Rissie Owens and the parole board. If they recommended more pardons he'd likely just deny more.

By contrast, at the federal level, according to Morison, "the 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." I can certainly see where putting an agency dominated by federal prosecutors in charge of clemency could be problematic. Morison suggests that for federal clemency to fulfill its intended constitutional function, the president must "defer less to the jaundiced advice he receives from the Justice Department and rely more on his own moral judgment."

Today Mr. Morison works as appellate counsel for the defense in military tribunal proceedings for prisoners at Gitmo. (Given that those seem to be little more than kangaroo courts, it's ironic he would leave a job over its frustrating futility then take that unhappy, thankless task). He also has an academic paper that may interest some Grits readers on Presidential Pardons and Immigration Law.