Presidents are Granting Fewer and Fewer Clemency Claims

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Executive clemency is the process in which an offender is granted a pardon by the President. Typically hundreds of cases were put in front of the President every year.

However, a recent article by claimed the pardon process is “broken”  and the names of fewer and fewer candidates are appearing in the Oval Office. The percentage of pardons granted has also fallen.

As it’s laid out in the Constitution, executive clemency can come in two basic forms. The first is relevant to people who have finished serving their time and are considered to be good candidates for getting back various rights they lost as felons through a presidential pardon. The second type of clemency is known as a sentence commutation and applies to people who are still incarcerated in federal prison and for a wide number of reasons deserve to rejoin society sooner than they otherwise would under their original sentence.

Since 1870, the work of finding candidates for clemency has been carried out by the Justice Department, and until relatively recently, the agency was consistently finding hundreds of cases to put in front of the president every year.

The Slate article claimed over the last three decades, the number of clemency petitions being granted by the federal government started dropping rapidly, causing some experts to question the Justice Department’s role in picking suitable candidates.

The article cited a new law review paper written by Margaret Love, an attorney who specializes in clemency appeals. She claims the Justice Department has become increasingly reluctant to recommend clemency candidates to the President and has concluded that the process is “irreparably broken,” the article states. She believes the responsibility for choosing candidates should be removed from the Justice Department.

Department of Justice statistics suggest the grant rate for pardons and commutation applications is falling sharply. During his term in office Jimmy Carter received 2,627 applications and granted 563 of them – a grant rate of 21 percent. Ronald Reagan received 3,404 applications over two terms and accepted 406 of them, for a grant rate of just under 12 percent. Under the next two presidents, the numbers dropped. George H.W. Bush and Bill Clinton granted about 5 percent. George W. Bush, meanwhile, “bottomed out with a rate of 2 percent, granting just 200 pardons and commutations out of 11,074 applications.”

According to Love 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.”

President Obama has also invoked the displeasure of criminal justice reformers for not using his clemency power enough. Some of them want him to take a stand against unduly harsh sentences by pardoning thousands of offenders – especially people who were convicted during the height of the war on drugs when mass arrests took place. To date Obama has pardoned just 64 people (out of 2,035 applicants), and commuted the sentences of 89 (out of 17,348 applicants). The low figures come notwithstanding an official “clemency initiative” announced last year that was meant to result in a sharp increase in the number of pardon applications from nonviolent drug offenders that were reaching the President’s desk.

The Justice Department has been accused of having a culture that is opposed to clemency. Love 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.

There seems to be little logic in the 30-year decline in pardons given that the criteria has not changed. It appears that an enshrined culture in the Justice Department is denying many candidates who would have been given pardons two decades ago, the right to clemency.

At Broden & Mickelsen, LLP, we are experienced Dallas criminal defense lawyers are dedicated to providing aggressive and ethical representation to individuals and businesses charged with crimes.