Re­form­ing the fed­eral clemency process

The Washington Times Daily - - POLITICS - A se­nior re­search fel­low in the Meese Cen­ter for Le­gal and Ju­di­cial Stud­ies, Paul Larkin di­rects the Her­itage Foun­da­tion’s project to counter abuse of crim­i­nal law.

To bor­row from John Mil­ton, West­ern civ­i­liza­tion has al­ways urged peo­ple in au­thor­ity to “tem­per … Jus­tice with Mer­cie.” The Framers of our Con­sti­tu­tion took that mes­sage to heart and gave the pres­i­dent that pre­rog­a­tive in Ar­ti­cle II.

Pres­i­dents have used that power for more than 200 years. Un­for­tu­nately, the clemency process no longer works as well as the Framers hoped.

Part of the prob­lem is that pres­i­dents have granted clemency too in­fre­quently. Pres­i­dent Obama short­ened the terms of im­pris­on­ment for nu­mer­ous drug of­fend­ers, but nei­ther he nor his re­cent pre­de­ces­sors par­doned of­fend­ers at the rate seen for most of our his­tory.

Pres­i­dent Trump can rem­edy that short­com­ing by mak­ing clemency de­ci­sions on a reg­u­lar ba­sis. He should set aside time three or four week­ends each year to con­sider clemency pe­ti­tions and an­nounce his de­ci­sions straight away. That would al­low him to avoid the im­pres­sion that pres­i­dents par­don more tur­keys than peo­ple.

Part of the prob­lem is that pres­i­dents have used their au­thor­ity dis­hon­or­ably, to repay old po­lit­i­cal debts or make new po­lit­i­cal al­lies. Pres­i­dent Clinton is Ex­hibit A (and B).

He of­fered con­di­tional com­mu­ta­tions to mem­bers of a Puerto Ri­can ter­ror­ist group, very pos­si­bly to en­list the sup­port of the Puerto Ri­can com­mu­nity for Hil­lary Clinton’s U.S. Se­nate race in New York and Vice Pres­i­dent Al Gore’s pres­i­den­tial cam­paign. In his last 24 hours in of­fice, Mr. Clinton also granted clemency to cronies: peo­ple with White House con­nec­tions or con­trib­u­tors to his party or pres­i­den­tial li­brary. That tawdry prac­tice dis­hon­ors a no­ble in­sti­tu­tion.

Mr. Trump can solve that prob­lem by re­turn­ing clemency to its in­tended use: to ex­press for­give­ness on the na­tion’s be­half and wipe the slate clean for the av­er­age per­son, rather than a crony or celebrity, who has ad­mit­ted his wrong­do­ing and turned his life around.

But there are two fi­nal steps that Mr. Trump should take: He should trans­fer the clemency process from the Jus­tice De­part­ment to a new clemency of­fice in the White House, and he should des­ig­nate Vice Pres­i­dent Mike Pence as his prin­ci­pal clemency ad­viser.

The pres­i­dent re­lies on the Jus­tice De­part­ment to fil­ter out in­el­i­gi­ble ap­pli­cants and rec­om­mend which el­i­gi­ble ones should re­ceive clemency. The par­don at­tor­ney re­views ap­pli­ca­tions and sub­mits his rec­om­men­da­tions, not to the White House but to the deputy at­tor­ney gen­eral. Therein, as the Bard said, lies the rub.

The deputy at­tor­ney gen­eral su­per­vises the crim­i­nal prose­cu­tions brought by ev­ery U.S. at­tor­ney’s of­fice and the crim­i­nal sec­tions of the Jus­tice De­part­ment. He there­fore labors un­der an ac­tual or ap­par­ent con­flict of in­ter­est when it comes to clemency. He might be un­likely to look neu­trally and dis­pas­sion­ately on an of­fender’s claim that he should never have been charged with a crime; that he is in­no­cent; that there was a prej­u­di­cial er­ror in his case; that his sen­tence was un­duly se­vere; or that he should be for­given be­cause he is a changed man.

In any other de­ci­sion-mak­ing process, a neu­tral party would play the role now per­formed by the de­part­ment. The de­part­ment should be free to of­fer a recommendation, of course, but it should not be able to stran­gle a rea­son­able ap­pli­ca­tion in the cra­dle. The pres­i­dent needs un­bi­ased rec­om­men­da­tions, and the na­tion is en­ti­tled to think that he gets them. Trans­fer­ring the clemency process to the White House would of­fer as­sur­ance that those goals will be achieved.

Mak­ing the vice pres­i­dent the prin­ci­pal clemency ad­viser helps achieve those goals and makes sense for other rea­sons too. He is a con­sti­tu­tional of­fi­cer with the stature nec­es­sary to ref­eree dis­putes be­tween the clemency of­fice and Jus­tice De­part­ment. His West Wing of­fice of­fers tremen­dous ac­cess to the pres­i­dent. More­over, in this case of this ad­min­is­tra­tion at least, he has ex­pe­ri­ence: Mr. Pence made clemency de­ci­sions as a gov­er­nor.

Sim­ple re­forms, but im­por­tant ones. Mr. Trump would ben­e­fit ap­pli­cants, the pub­lic, the pres­i­dency and him­self if he adopts them.

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