The Pardon Process Is Broken

Presidents are granting clemency far less often than they once did. Why?

Younger inmates at Devens federal prison share a room with elder,Younger inmates at Devens federal prison share a room with elderly prisoners.
Starting about 30 years ago, the number of clemency petitions being granted by the federal government started dropping precipitously.

Photo illustration by Juliana Jiménez. Photo by Thinkstock.


Attorney Margaret Colgate Love has dedicated her career to securing mercy for people who have been convicted of crimes. When she worked for the Justice Department as the U.S. pardon attorney from 1990 to 1997, this meant reading and vetting clemency applications and identifying individuals whose cases merited the attention of the Oval Office. In the years since, she has been running her own law practice, where she has specialized in clemency petitions, and has been one of the most prominent advocates in Washington for the executive branch acting less stingy in its approach to clemency.

Executive clemency, as laid out in the Constitution, can come in two basic forms. The first applies to people who have finished serving their time and are considered good candidates for getting back various rights they lost as felons through a presidential pardon. The second type of clemency—known as a sentence commutation—applies to people who are still in federal prison and for any number of reasons deserve to rejoin society sooner than they otherwise would based on their original sentence. Since 1870, the work of finding good candidates for clemency has been done by the Justice Department, and until relatively recently, the agency was regularly finding hundreds of cases to put in front of the president every year.

Starting about 30 years ago, however, the number of clemency petitions being granted by the federal government started dropping precipitously, causing some legal scholars to argue that the Justice Department is the wrong agency to entrust with the work of picking candidates.

For a long time, Margaret Love resisted this point of view, and was unwilling to give up on the idea that, with the right changes, the Justice Department could still be turned into a reliable manager of mercy. But in a new law review paper posted last week, Love announced that she has changed her mind. She has watched, she writes, as the Justice Department has become more and more reluctant to recommend clemency candidates to the president and has concluded that the process is irreparably broken. If it is to be fixed, she now believes, responsibility for choosing candidates for clemency and putting them in front of the president must be taken away from the Justice Department.

The numbers do suggest that the process isn’t working, or isn’t working the way it did for the balance of American history. As you can see from these Department of Justice statistics, the grant rate for pardons and commutation applications has dropped sharply. During his one term, Jimmy Carter received 2,627 applications and granted 563 of them, for a grant rate of 21 percent. Ronald Reagan, over two terms, received 3,404 applications and accepted 406 of them, for a grant rate of just under 12 percent. George H.W. Bush and Bill Clinton both came in at around 5 percent (with Bush granting 77 out of 1466 applications during his one term, and Clinton granting 457 of 7,489 during his two). George W. Bush, meanwhile, bottomed out with a rate of 2 percent, granting just 200 pardons and commutations out of 11,074 applications.  

President Obama has been criticized by criminal justice reformers for not using his clemency power aggressively enough. Some have called on him to take a stand against unduly harsh sentences by pardoning thousands of offenders—especially those who were convicted during the height of the war on drugs—en masse. To date, he has pardoned just 64 people (out of 2,035 applicants), and commuted the sentences of 89 (out of 17,348 applicants). This despite an official “clemency initiative” announced last year that was supposed to result in a sharp increase in the number of pardon applications from nonviolent drug offenders that were reaching Obama’s desk.

Why are clemency rates so far down, even in a supposedly clemency-friendly administration? As Love writes in her paper, “The culture and mission of the Justice Department have in recent years become determinedly and irreconcilably hostile to the beneficent purposes of the pardon power, and to its regular use by the president.”  

In her new paper, Love argues that it makes no sense to entrust the Justice Department—the agency in charge of prosecuting people in federal court—with the power to decide who among those people deserves relief. As Love writes, “The president cannot be well-served in the exercise of his pardon power as long as control over pardon policy and practice remains in an agency responsible for criminal prosecutors, and under the control of federal prosecutors.” Instead, she argues, responsibility for the clemency process should be assigned to a team working under the U.S. pardon attorney, inside the Executive Office of the President.

“The history of the past 30 years shows that the Justice Department has an investment in keeping final judgments final, and that federal prosecutors don’t want to disturb cases that they have gone to a lot of trouble to convict,” Love told me in an interview. During that 30-year period, she added, two things changed. First, politicians in Washington started taking much more aggressive “tough on crime” stances when it came to punishment, and second, the Attorney General stopped overseeing the pardon process directly, and delegated it instead to his subordinates.   

This second change, which came about toward the end of the Carter administration, was more significant than it might sound, Love told me. “When the AG stopped doing it and delegated it to his deputy—the CEO of the department, basically—it got all snarled up in this basket of operational things that the deputy is in charge of,” she said. “And the deputy’s office is command central for the policy and practice of prosecution.”  

The consequence of these changes, as Love put it in her paper, was that the Justice Department came to treat “every clemency petition as a potential challenge to the law enforcement policies underlying the conviction, and to the authority of its prosecutors,” instead of feeling a duty—to quote an 1887 mission statement articulated by then-Clerk of Pardons Andrew Boteler—“to accord to the convict all that he may be fairly entitled to have said in his favor.”

Love encountered the Justice Department’s unmerciful tendency firsthand when she served as the U.S. pardon attorney under George H.W. Bush and Clinton, and says she felt pressure to recommend fewer pardons than she was naturally inclined to. “I knew what the boss wanted, and wasn’t about to send him a lot of reports he would only throw back at me,” she wrote in an email. “That said, I tried to push my agenda (of getting the president to make more grants) as much as I could.” In one instance, Love told me, the deputy attorney general declined to make a favorable recommendation in a case that Love felt strongly should have been granted. Love asked for permission to submit a dissenting footnote. “She let me, and the President granted the application,” Love wrote to me. “I think that pretty much shows I went as far as I could short of falling on my sword.”

Love is not the first person to argue that the Justice Department has become ill-equipped to be dealing with clemency. But the fact that she has come around to joining other experts who have made the point—including the law professors Rachel Barkow and Mark Osler, authors of a 2014 paper that was picked up by the New York Times editorial board—is significant, in part because she’s such a prominent voice in the debate over the pardon power, and in part because she’s someone who actually worked inside the Justice Department. The question is what took Love so long: After all, if the problem she has identified is a fundamental conflict of interest on the part of the Justice Department, doesn’t that mean it’s always been there? 

“I was just kind of stubborn about it, because I believed in the Justice Department,” she said. “I thought we could bring back the old times, and now, I guess I’m just not persuaded that it’s possible, not at this time.” 

What moved her to change her mind, Love said, was Deputy Attorney General Jim Cole’s decision to act on Obama’s clemency initiative by “farming it out” to a consortium of private organizations—“50 law firms, more than 20 law schools and more than 1,500 lawyers,” according to the Times—which were charged by the Justice Department with the work of helping to select candidates for clemency. Love objected to the idea of putting “private individuals and groups in a position to control access to government benefits,” even though on the surface one might have expected her to applaud the fact that DOJ had put distance between itself and the clemency process. But Love argues that it’s the wrong kind of distance: “Private people can’t make government decisions,” she said. “The consortium created its own separate problems.”

Love understood the DOJ’s use of the consortium to mean that pardons were a low priority for agency personnel. It was this, she said, that “broke the camel’s back” and finally convinced her that “there really is no salvaging this within the Department.”

The solution Love proposes in her paper—to move the Office of the Pardon Attorney pretty much exactly as it exists today into the Executive Office of the President—would make it so the president was both “protected and encouraged in the use of his power,” she writes, and would “give the president control for the first time in decades over his own ‘benign prerogative.’ ”

Taking the pardon process away from the Justice Department would be a bold move. But in a moment when criminal justice reform has become the most fashionable cause in Washington—and when the spirit of mercy seems to have at least temporarily gripped politicians on the left and the right, if not necessarily in the DOJ—it might even be realistic.

Update, Sept. 4, 2015, at 3:10 p.m.: A spokesperson for the Department of Justice responded to Love’s argument with an emailed statement: “Article II of the Constitution gives the President an unrestricted power to grant clemency to anyone, at any time. For more than 100 years, the Department of Justice has assisted presidents in the exercise of his constitutional power. The mission of the Department of Justice is to enforce the law and defend the interests of the United States according to the law; to ensure public safety against threats foreign and domestic; to provide federal leadership in preventing and controlling crime; to seek just punishment for those guilty of unlawful behavior; and to ensure fair and impartial administration of justice for all Americans. The work of the Office of the Pardon Attorney is an integral part of the Department’s mission.”