Experts Say The Pardon System Is Broken. Can Biden Fix It?

By Jack Queen | December 2, 2020, 9:15 PM EST

President Donald Trump's pardons of political allies and potentially his own family members have cast new light on cracks in the federal clemency system, offering President-elect Joe Biden a chance to relegitimize and streamline a process that critics say has reached new lows of dysfunction.

Scandalous pardons are not unique in the twilight of a presidency, but some observers say the process has made a pronounced slide toward political theater under Trump, who last week pardoned his former national security adviser Michael Flynn and is now reportedly weighing similar action for himself, his family members and his personal lawyer Rudy Giuliani.

Underscoring how the system can be ripe for corruption, a D.C. federal court this week unsealed heavily redacted documents detailing a possible bribes-for-pardons scheme, though the White House has denied any connection to the matter.

Overall, Trump has granted just a tiny fraction of the more than 10,000 clemency applications submitted during his tenure, well below the rate of his predecessor. While he can still act on more as a lame duck, some legal experts and attorneys say the prospect of Trump allies seeing their records cleared, perhaps preemptively, while thousands are passed over underscores the need to reform how presidents exercise one of their most absolute powers.

"It illustrates how great this power could be, and it's a shame that it hasn't been used more broadly to help people who would be more deserving of clemency," Kristin Hucek of Keker Van Nest & Peters LLP, who worked on pardons under former President Barack Obama, told Law360.

The escalating controversy comes as Biden prepares to ascend to the presidency with plans to use clemency for social justice and policy goals. That approach is now a firm plank of the Democratic Party platform, offering hope that Biden will counterbalance the heavy hand of prosecutors in clemency recommendations and drive state-level efforts to mitigate the consequences of convictions.

Those efforts would begin at the Office of the Pardon Attorney, an arm of the U.S. Department of Justice that handles tens of thousands of clemency applications and makes recommendations to the president. Margaret Love, who ran the office from 1990 to 1997, said reforms there are overdue.

"The process has gotten slower and slower and less and less reliable over the past 30 years," Love told Law360. "It didn't start with Trump, but Trump is the reductio ad absurdum of presidential pardoning."

The U.S. Constitution gives presidents nearly unlimited powers of clemency, a tool meant to blunt the harsh sentences the criminal justice system sometimes produces. It can be a saving grace for people convicted of felonies whose criminal records haunt them for life.

The pardon attorney's office weighs these considerations, along with factors including behavior while incarcerated and the severity of offenses, and makes recommendations to the president. Lawyers there examine prison records, presentencing reports and other documents, while FBI agents interview pardon applicants and their sponsors.

U.S. attorney's offices hold considerable sway over the process and are often reluctant to second-guess current and former colleagues, leading pardon attorneys to question why the program is run out of the same agency that secures convictions and sentences. Differing levels of cooperation between U.S. attorney's offices inject another layer of arbitrariness to the system.

"It's important to have a law enforcement voice, but it's also important to have a forgiveness voice that looks at disparities in the justice system," said Dan Kobil, a law professor and presidential pardons expert at Capital University Law School.

In its platform this year, the Democratic Party called for the establishment of an independent clemency board stocked with members from outside the DOJ who would make recommendations directly to the president. Other proposals have called for removing the pardon attorney from the agency and placing it squarely within the executive office of the president.

The Obama administration focused on nonviolent drug offenders in granting 212 pardons and more than 1,700 commutations, more than any president since Harry Truman. But some believed the program was still hamstrung by a lack of resources, prompting U.S. Pardon Attorney Deborah Leff to resign in 2016. In her resignation letter, she said understaffing meant "the requests of thousands of petitioners seeking justice" lay unheard.

Love disputed that notion, saying the problems flow from poor leadership, low morale and lack of buy-in from the administration. The result is that little substantive work gets done and new applications disappear into a bureaucratic maze, she said.

Congress has limited power to force an administration's hand on clemency, absent a constitutional amendment. While administrative reforms and better leadership could breathe new life into the program after Trump, there are also steps that states can take to ease the collateral consequences of convictions.

Those include requiring the removal of questions about criminal records from job applications, granting expungements or judicial certificates of rehabilitation, eliminating professional licensing boards that screen for records and allowing convicted felons to vote, as Florida voters did with a 2018 ballot measure.

"There is a menu of different legislative options in the states, and the federal government is really coming late to the party," Love said. "Perhaps we can rely more on good old-fashioned lawmaking in the states so we don't rely so much on pardon power as the go-to safety valve in our system."

At latest count, Trump has opened that safety valve for 45 people, while closing the cases of nearly 7,000 without acting. There are currently 13,955 applications pending.

--Editing by Nicole Bleier.

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