Lawyer: Obama Should Start Pardoning Right Away

[WSJ_law_blog]

On Tuesday, we did a bit of pardon speculation and asked whether President Bush, on his way out of the White House, might have a Marc Rich moment and make a controversial get-outta-jail-free pick. (Conrad Black, anyone? Hard to say, but Slate thinks Michael Milken and S****** Libby are pardon possibilities.)

So far, we noted, Bush has used his pardon power sparingly ? approving only 157 pardons. The number represents the lowest for all presidents since World War II, with the exception of G.H.W. Bush, who, during his four-year administration, pardoned only 74 individuals.

Recently, the National Journal went into depth on the history of the pardon power’s “misuse and disuse over the last 25 years.” The NJ’s David Herbert interviewed Margaret Colgate Love, a lawyer specializing in, among other things, executive clemency. Love served as U.S. pardon attorney from 1990 to 1997 and currently directs the ABA Commission on Effective Criminal Sanctions.

Here are some highlights:

NJ: The pardon has a history of being used to heal national wounds. Andrew Johnson pardoned most Confederates, and Jimmy Carter pardoned the draft dodgers, to name two examples. As pardon power has been used less in the last three decades, do you see any missed opportunities?

Love: . . . [T]wo things have happened in the federal system in the past 25 years. First, we instituted a new sentencing system, and there was a sense of getting tough on crime . . . with mandatory minimum sentences and long guideline sentences. There is no other way to get out of prison. We have no parole in the federal system, and it has become a very inflexible, rigid system, and people are sent to prison for very long terms, and there’s no way to get out.

At the same time, for people who are out of prison who are trying to become reintegrated into society, there are many, many collateral consequences that keep them from exercising their civil rights and getting jobs, that are mitigated, avoided, only through a pardon. So people really need pardon these days, and it seems like at the very time that people need pardon the most, it has become essentially unavailable to them.

NJ: What role would you like to see pardon playing that it isn’t now?

Love: . . . [P]ardon . . . functions as sort of a corrective to the legal system . . .Unfortunately, the legal system doesn’t always do perfect justice, and that’s where you need the pardon power. That’s the way Alexander Hamilton conceived of it: to make what he called “exceptions in favor of unfortunate guilt.” That’s kind of a nice phrase. But for many years the pardon power has not worked like that.

NJ: I know you take a dim view of speculation about which well-connected or celebrity convict — Marion Jones’ name has been floated — will get a pardon. Does that theater have any value, though, since it keeps the pardon process in the public eye? Or does it cheapen the privilege?

Love: Well, I think it would be preferable, in my view, if the president used the power more regularly to benefit ordinary people and he used it to help the public understand how the justice system works. . . And so I think it’s kind of distracting when you get a lot of celebrities who are applying who would not ordinarily be eligible under the Department of Justice’s own regulations. . . .

NJ: Let’s say Obama was committed to using pardon for the lofty goals you’ve mentioned. Considering the bad rap the pardon process has developed in the last few decades, how would you advise him to go about reviving the pardon tradition?

Love: I would advise him to start pardoning pretty much right away. Give pardon to little people who are not particularly controversial, just ordinary people who have cases that fit within the Justice Department guidelines. I would also recommend that he do some grants that show some of the problems that people face in trying to rehabilitate themselves coming back to the community. . .

NJ: In more controversial cases where you have groups that feel very strongly one way or the other, how do you minimize their role so that they don’t overly politicize a pardon?

Love: Well, the pardon power is necessarily political. I mean, the only check on it is public opinion. So it’s necessarily political in that good sense that the president is really acting as the conscience of the community. So if he can’t sell his message to the public, then he’s just going to have to do what he has to do. . .