Obama the Merciless: Is DOJ to blame?

The Washington Post has a compelling story about a man's quest for a federal sentence commutation from the Bush and Obama Administrations and the biased interpretations, flawed through omission and understatement, given the President by the Office of the Pardon Attorney at the US Department of Justice. It's a substantial story so those interested should read the whole thing, or here's a brief summary from P.S. Ruckman at Pardon Power.

Grits' immediate interest lies in reported criticisms of the internal workings of the Pardon Attorneys office, including calls to outright abolish it. In the case of Clarence Aaron highlighted in the story:

That Aaron joined the long line of rejected applicants illuminates the extraordinary, secretive powers wielded by the Office of the Pardon Attorney, the branch of the Justice Department that reviews commutation requests.

Records show that Ronald Rodgers, the current pardon attorney, left out critical information in recommending that the White House deny Aaron’s application. In a confidential note to a White House lawyer, Rodgers failed to accurately convey the views of the prosecutor and judge and did not disclose that they had advocated for Aaron’s immediate commutation.

But it's not must one individual thwarting more active clemency recommendations, some argue, but an institutional, prosecutorial anti-clemency bias from prosecutors at the Justice Department:

Last week, the American Constitution Society sponsored a panel discussion on Capitol Hill devoted to the pardon issue. President Obama’s former White House counsel Gregory B. Craig said the president could issue an executive order eliminating the pardon office.

“We cannot improve or strengthen the exercise of this power without taking it out of the Department of Justice,” Craig said.

He advocated for a bipartisan review panel that would report directly to the president.

The number of pardons awarded has declined sharply in the past 30 years, as have commutations. Obama has rejected nearly 3,800 commutation requests from prisoners. He has approved one. Bush commuted the sentences of 11 people, turning down nearly 7,500 applicants.

A former pardon office lawyer said some applicants have been turned down “en masse” with little, if any, review, a claim the Justice Department disputes.

Here's an interesting tidbit: "Under Ronald Reagan and Bill Clinton, both two-term presidents, one applicant in 100 was successful. Under Bush, approvals fell to barely better than one in 1,000." Obama's record is even poorer.

Under Barack Obama's US Pardon Attorney Ronald Rodgers, paralegals began vetting cases instead of attorneys, and large batches of cases would allegedly be denied en masse with little review (though of course Rodgers insists the review was adequate):

Under Rodgers’s predecessors, staff lawyers reviewed each case, gathered pre-sentence and Bureau of Prisons progress reports and wrote recommendations based on their research.

“Some reports were shorter, just a paragraph or two,” said Margaret Love, who served as a pardon attorney from 1990 to 1997. “But there was always enough of a report that you could get an idea of what the basic facts and issues were.”

For the first 2¹/₂ years under Rodgers, however, most petitions were handled by paralegals, not staff attorneys, and recommended for denial in batches, said Samuel Morison, a lawyer who spent more than a decade in the pardons office before leaving in 2010 to work for the Defense Department. He said Rodgers instituted the change when there was a significant backlog.

“The office types up a list of names, along with basic sentencing and offense information for each prisoner, and sends the list to the White House with a note that says the attached cases are meritless and should be denied,” Morison said.

The story of Clarence Aaron, who at 24 was "sentenced to three life terms for his role in a cocaine deal, even though it was his first criminal offense and he was not the buyer, seller or supplier of the drugs," is certainly troubling, but it mostly just affects him, his family and loved ones (and of course taxpayers footing the bill for his incarceration). Even more concerning are reported changes in institutional practices by President Obama's pardon attorney giving at best minimal consideration to the thousands of clemency requests they receive, ensuring there will be many more Clarence Aarons, most of whose cases won't be nearly so well publicized..

Mitt Romney's pardon record is even worse - he never once issued clemency to anybody when he was Governor of Massachusetts - so I don't expect this to become a campaign issue. It just doesn't cut along partisan lines. There's a firm bipartisan consensus that the constitutional clemency power has become an anachronism barely worth considering.

Grits finds that ironic. The history of the US presidency throughout the past century involved the accumulation of ever-greater power within the executive branch, much of it through regulatory infrastructure justified by constitutional theories that would leave the Framers' jaws agape. By contrast, clemency authority is an actual, named constitutional power of the presidency, not one assumed after the fact nor assigned by Congress or the judiciary. But this critical presidential power has faded to virtual irrelevance, even though Alexander Hamilton believed (see Federalist 74) "easy access" to clemency was essential to keep the justice system from becoming too "sanguinary and cruel."

Why is this the one area where presidents, especially this president, seem reluctant to exercise their constitutional authority at all, much less seek its expansion as in every other realm of their office? Is DOJ to blame?

MORE: P.S. Ruckman has posted the relevant documents in Clarence Aaron's case.

See prior, related Grits posts:

• Obama may have stingiest pardon record of any American president
• Obama the Merciless
• Eat the turkey, pardon O. Henry! President quotes Texan writer but won't pardon him
• Institutional prosecutorial bias limits federal pardon recommendations from DOJ
• Perry should expand clemency, trump Obama in Christmastime ritual