April 2, 2009 -- Truthout (US)
The Fall of the Presidential Pardon
By Maya Schenwar, Truthout
In the last throes of the Bush presidency, reporters and citizens alike waited restlessly for the announcement that many were sure would come: the long list of pardons for administration officials at risk of prosecution, GOP pols mired in scandal (hello, Ted Stevens) and white-collar criminals with lucky Bush links. The list never arrived. The former president issued a mere two commutations on his last day in office, both to border agents convicted of assaulting a Mexican drug dealer.
Although all recent presidents have granted few pardons, Bush's rate was exceptionally low. He tied with his father for the lowest-ever percentage of granted pardons (conviction reversals) -- 9.8 percent -- and he granted an astonishingly tiny number of requested commutations (shortened sentences): 0.012 percent.
Bush's abstinence on the pardon front had some of his friends grumbling (Dick Cheney complained, poetically, that the president had left Scooter Libby "hanging in the wind"), but it was a relief to many of his critics. The word "pardon" conjured up images of Libby, Stevens and GOP Congressman-turned-felon Randy Cunningham -- not the thousands of nonviolent offenders languishing in federal prisons across the country.
However, although Bush disappointed some guilty crony hopefuls with his meager list of pardons and commutations, he disappointed a far greater number of long-serving prisoners with no other hope of release. An ever-growing percentage of the US's 2.3 million prisoners -- including more than half of the 200,000 inmates in federal prison -- are drug offenders, many of them charged on vague counts of "conspiracy." Since parole was abolished on the federal level in 1987, drug prisoners serving drastic sentences are told to apply for a presidential pardon: It's their only option.
Take Clarence Aaron, a nonviolent drug prisoner denied clemency by Bush. Aaron was a 23-year-old college student in 1993 when he was convicted of drug conspiracy, for introducing two major traffickers and being present during the transaction. He was handed three federal life sentences -- no parole.
Aaron submitted a petition for commutation of sentence in 1999. He waited nine years for an answer, waking up each morning hoping he might soon be free. Meanwhile, he was featured on the Frontline documentary Snitch, about the drug war policy of rewarding informants and severely punishing those whose names they drop, sometimes regardless of guilt.
"I was advised through my attorney [to request a pardon]," Aaron told Truthout. "We were very hopeful due to the circumstances surrounding my case, and the fact that I was a first-time nonviolent offender."
On December 23, 2008, after a Bush-administration-long wait, Aaron received notice: His petition had been denied. After a year, he may submit a new request and begin the waiting game anew.
"We believe that the justice system in our country has not served me well thus far," Aaron said.
With the stingy-pardoning Bush era in the past, many nonviolent lifers see the advent of the Obama presidency as a ray of hope. His message of change and his immediate action toward closing the military prison at Guantanamo Bay are optimistic signs for Danielle Metz, a first-time nonviolent offender serving three life sentences plus 20 years for cocaine conspiracy.
"In his first week in office he talked about closing down Gitmo," Metz told Truthout. "Mr. Obama doesn't like their policies there, so, he's going to do something to change that. I look at that as something positive for me. I feel once the president gets around to taking care of everything he has to for the American people, he'll do what he can for the people who are still in the US judicial system with lengthy sentences like myself."
As the Obama administration comes into its own, federal prisoners and justice policy experts alike are hoping he'll resurrect the presidential pardon, returning it to its intended place as a critical piece of the grand puzzle of the judicial system.
Pardon was not originally intended as a backdoor exit for the president's convict friends. According to a recent Congressional Research Service report, the power to grant clemency was included in the Constitution to make room for individual cases served badly by the justice system. James Iredell, one of the original Supreme Court justices, stated in an address, "There may be instances where, though a man offends against the letter of the law ... peculiar circumstances in his case may entitle him to mercy."
According to Margaret Colgate Love, who served as US pardon attorney from 1990 to 1997, pardon plays an integral part in the framers' system of checks and balances.
"The fact is that the federal sentencing scheme assigns a central role to pardon, if only by default, because it provides no other way to take a second look at sentences that have become final, or to release a federal offender from the collateral consequences of conviction," Love writes in her 2007 report, Reinventing the Presidential Pardon Power. "No legal system should have to rely on executive clemency to do justice, but ours does."
Metz agrees: Despite her nonviolent-first-offender status, she'll remain in prison for life unless a commutation or pardon comes to the rescue. Her absurd sentence is the result of poverty, racism, negligent public defenders and an ingrained pattern of unjust sentencing practices, she says.
"My lawyer never was on my side to begin with," Metz said. "Had he been on my side this never would have happened. My story is like a lot of stories you see, but can't really put a face on. In communities where I'm from this type of thing happens all the time."
Although in theory, sentencing guidelines mean equal time for equal crimes, cases like Metz's are not uncommon: multiple life sentences laid down for drug "conspiracy" charges, sometimes for schemes in which the defendant played only a peripheral role.
Former Texas restaurateur Sharanda Jones has spent the past ten years in prison for crack cocaine conspiracy. Police intercepted a phone call in which a small-time-dealing friend of Sharanda's asked her if she knew anyone who wanted to buy drugs. With that one short call, Jones was swept up in a massive, high-profile string of drug raids careening through her community, spearheaded by actor Chuck Norris. Now her only hope is presidential clemency.
"There is no relief for me coming from the courts," Jones told Truthout. "At the present time I am working on advocates to help me support my commutation."
Unlike most other components of the checks-and-balances system, the pardon is ultimately controlled by only one factor: the president's word. According to the recent CRS report, the president can grant pardons at any time, before or after a sentence is served -- or even before charges have been pressed. He or she can also grant clemency to a large group. Theoretically, the president could pardon all prisoners serving time for marijuana possession, or commute the sentences of all nonviolent drug offenders who have served more than 10 years.
In this line, Abraham Lincoln pardoned all Southern rebels who returned their allegiance to the union after the Civil War. He also pardoned or commuted the sentences of a number of union military offenders, such as soldiers sentenced to death for desertion or sleeping on the job.
Lincoln's pardons serve as an example of another purpose for pardons besides simply the granting of mercy: They boosted the country's morale and inspired rebel soldiers to return their loyalty. Lincoln used the pardon as a political tool.
The president's use of the pardon power can also make policy statements and demonstrate the administration's priorities.
"Historically, pardon has played a policy role in raising awareness of shortcomings in the law in the context of a particular case," Love writes. "Used wisely, the pardon power can reveal flaws in the legal system, influence attitudes and build consensus for change."
Pardoning prisoners like Aaron, Metz or Jones could cast a sharp light on all prisoners serving life sentences for nonviolent drug charges, calling into question the practice as a whole.
The Fall of the Pardon
Throughout most of US history, according to Love, the pardon was used frequently. Only in recent years has it acquired its shady reputation -- a development that coincided with a marked drop in the use of the power. From FDR's presidency until the Reagan administration, the grant rate for pardons was always 30 percent or higher. In the years since, a "tough on crime" mentality has increasingly pervaded politics and the public mindset, and the pardon rate has dropped accordingly, according to Tekla Lewin of Citizens United for the Rehabilitation of Errants.
"Politicians and the media have spent decades hyping crime as the worst problem society faces, demonizing criminals as utter scum and encouraging an atmosphere of vengeance on criminals," Lewin told Truthout. "I think that in part this is deliberate obfuscation on the part of many elites, to distract people from the really serious problems people face, and that in part being 'tough on crime' has been an easy vote-getter for politicians."
Crime-fighting's "easy vote-getter" potential has a flip side: the enormous risk of losing votes if one is perceived as being lenient. Lawmakers are wary of the "Willy Horton effect," so named for the inmate who committed armed robbery and rape when released on a Massachusetts weekend furlough program, severely damaging the presidential campaign of Massachusetts Governor Michael Dukakis.
According to Lewin, the "war on crime" dealt a blow to the concept of mercy, and thus to the pardon. When vengeance is valued over compassion, appearing weak on crime is a risk not many politicians are willing to take.
Although there have been a smattering of clemency grants for drug offenders in recent years, they don't add up to a policy statement disavowing the drug war -- in fact, they may do the opposite, according to Tom Murlowski of the November Coalition, a nonprofit organization that combats drug war injustice. Murlowski points to President Clinton, who commuted the sentences of 22 drug offenders on his last day in office, following up on a handful of previous drug-related clemency grants.
"There were thousands of cases as deserving, or more so, than the few that got released, and most of those drug offenders released were those that had some solid media support behind them -- they had virtually all been featured in mainstream media in some way," Murlowski told Truthout. "Our fear was that, when these few stories were featured and, ultimately commuted, it sent the erroneous message that these were isolated cases of drug war injustice, when the reality was a systemic injustice as a result of fundamentally flawed policies."
Leading up to Clinton's final days, the November Coalition led a campaign urging the president to call for a blanket release of nonviolent drug offenders. However, Murlowski notes, such a move could prove "political suicide" in a country where "toughness" is still the barometer when it comes to crime -- any crime.
Another little-noted factor has contributed to the dearth of recent pardons: The Office of the Pardon Attorney has long been underfunded and understaffed. Clemency and pardon requests go through several steps before they reach the president -- they must be investigated by government agencies, then reviewed by the pardon attorney, the attorney general and finally the president -- and qualified support personnel at each of these levels is essential. According to Marc Mauer, executive director of The Sentencing Project, more pardons might be granted if the department was simply funded adequately.
"There's been a huge backlog under the [Bush] administration, which is basically a resource issue; not providing sufficient staff to review applications," Mauer told Truthout.
Instead of prompting more hires, the backlog has perpetuated a shoddy, negligent review process, according to former Pardon Attorney Love.
"These cases are not getting fully reviewed," Love told Truthout. "It seems like the main objective of the current pardon attorney is to manage the backlog by getting rid of cases as soon as he can; turning them around at the door. I've heard he's not even getting the pre-sentence report in most cases."
Compounding the situation, the pardon attorney in office for the past 10 years was known for discriminatory behavior, and was recently removed from office following accusations of racism. A report by the department's inspector general stated that Pardon Attorney Roger Adams described a drug offender requesting a pardon as "about as honest as you could expect for a Nigerian.... Unfortunately, that's not very honest."
According to the inspector general's report, "Adams' comments -- and his use of nationality in the decision-making process -- were inappropriate." Considering most long-serving drug offenders are minorities, Adams's behavior calls into question the handling of the entire pardon evaluation process in recent years.
"My Time Is Now"
Clemency applicants stress the lack of logic that seems inherent in the pardon system; the application process is partially just a game of risk. For George Martorano, the longest-serving nonviolent first offender in federal prison -- and an author, yoga instructor and writing teacher -- a six-year pardon wait ended painfully in December.
"I put in a request with Bush and it languished there for a good long time," Martorano told Truthout. "The denial was handed to me on my birthday. Nice birthday present. I can't see why I didn't get it. If a person like me doesn't get it, who does?"
However, Martorano and many other previously denied applicants are planning to begin the process anew, with a president in office who may be more sympathetic to their cause. Moreover, some drug offenders who felt a Bush-administration request would be futile are now casting their clemency lot with Obama. Sharanda Jones, the first-time nonviolent offender netted by the Chuck Norris scheme, is one of these.
"Several ladies here filed pardons with President Bush," Jones told Truthout. "All were denied within months. I feel my time is now."
Mauer notes that, should Obama wish to revive the power of the pardon, he'll need to spend some time laying the groundwork. One essential step: educating the public.
"He should first make it clear that the pardon power is a longstanding and important function of the executive, and one that is necessary to provide justice and remedy any injustices that may have occurred in the past," Mauer said.
This "message from the top" is essential when it comes to justice system issues, according to Mauer: If the president indicates an interest in revitalizing the pardon, it will likely channel more resources toward the department and encourage government agencies, the pardon attorney and the attorney general to produce favorable recommendations.
As the volume of pardons increases, the public's distrust of the pardon will likely decrease, according to Love, who notes that if the practice is routinely used to remedy flawed sentences and negate wrongly determined verdicts, its true intent will become clear.
Mauer also recommends a review of the Office of the Pardon Attorney's resources, followed by adjustments to speed up the flow of applications and improve transparency.
In the meantime, as the pardon process shuffles on with little accountability and few overarching principles, the best move for prisoners seeking a pardon is to get publicity, and lots of it.
"As a rule, it seems, the more famous a case is, the better the chances of relief," Murlowski said. "I was always struck by how many more federal drug law violators were worthy of relief after the 2000 commutations, but didn't have the media exposure that the select few enjoyed."
The case of Amy Ralston, the manager of an LA promotional company who was convicted on conspiracy charges after her estranged husband was arrested for manufacturing ecstasy -- got enough publicity to put her on Clinton's clemency list. Her story was chronicled on 60 Minutes, on Court TV and in Glamour Magazine.
Ralston sought out publicity and support from influential people. She obtained letters backing her clemency request from 16 politicians.
"I think Clinton picked my case because there was a lot of pressure," she told Truthout. "People were coming at him from all angles, including 60 Minutes."
Ralston's case matches Murlowski's characterization of clemency recipients: offenders that are so widely publicized that, when granted a pardon or commutation, they appear to be an exception to the rule; the rare "good prisoner" stranded among the masses that deserve to be incarcerated.
Dorothy Gaines, whose sentence was also commuted by Clinton, has a similar story. She describes how her case "caught fire": an avalanche of media attention sparked a massive public outcry to "free Dorothy Gaines." She was featured on PBS's Frontline and interviewed on NPR. Her case became one of the "exceptions."
"I consider myself blessed," Gaines told Truthout. "The day I was released, they told me that thousands and thousands of applications for clemency had come in [during the Clinton administration]."
However, even a media spotlight doesn't guarantee a pardon or commutation. Clarence Aaron, the drug prisoner saddled with three life sentences for introducing two traffickers, received coverage from Frontline, The San Francisco Chronicle and even Fox News. His clemency denial came as a brutal surprise.
Ralston tells prisoners seeking clemency to "never give up," especially since Bush is out of office. President Obama has indicated that he'll push for a shift from punishment to treatment for drug-related crimes, and his mantras of "hope" and "change" infuse optimism into prisoners' conversations about their chances for release.
However, Obama has not made any specific statements about reforming the pardon process, and so far, it's tough to predict any major systemic changes.
"I like to come back to the fact that there's always hope," Martorano said. "But the problem with requesting a pardon is you never even know if you're being considered. My request languished for a good long time. It sat on somebody's desk for six years, while I was hoping. What is hope when it's false hope?"
For more information, please see:
The November Coalition: www.november.org
Dorothy Gaines's Web site: www.dorothygaines.org
The Sentencing Project: www.sentencingproject.org
The We Believe Group: www.webelievegroup.com
Maya Schenwar is an editor and reporter for Truthout.