This Article will appear in revised form as part of a book tentatively titled The Decline and Fall of the Pardon Power: A History. A brief description of the larger project may be helpful.
The first part of the larger study will examine the near disappearance of executive clemency and how it happened. Between 1860 and 1900, Presidents granted 49% of the applications for clemency they received, (1) and as recently as 1961 to 1980, they granted 28%. (2) In the last complete presidential administration, however, George W. Bush granted only 1.7% of the applications he received. (3) Barack Obama, who is now in the nineteenth month of his presidency, has yet to approve a clemency grant. More than 4,500 petitions await action in the White House or the Department of Justice. (4)
The Justice Department has published rules for executive clemency, which it follows in determining which applications to process and in making recommendations to the White House. These rules do not limit the President's constitutionally based power to grant pardons or commutations as he sees fit. (5) Under the Justice Department's rules, pardons are reserved for ex-offenders who apply after they have been released from custody for five years. The principal function of a pardon is to restore an offender's civil rights after he has demonstrated his good citizenship. A prisoner who is still in custody may seek only a commutation of his sentence. (6) For inmates without White House connections, a commutation is the only "get out of prison" type of clemency available.
In the administrations of Presidents Reagan, Bush, Clinton, and Bush, only one-half of one percent of all petitions for commutation were approved. The average number of commutations per year was three. In most years of these administrations, the President did not find even one federal prisoner worthy of early release. George W. Bush approved one-tenth of one percent of the commutation petitions he received. (7)
After 1935, executive clemency was largely confined to pardons to restore civil rights. By that date, parole had eclipsed clemency as a means of releasing prisoners. Congress's abolition of parole in 1984, (8) however, did not revive clemency. Rather, it left the United States for the first time in its history without a functioning mechanism for releasing prisoners prior to the expiration of their sentences. Partly as a result, the federal prison population is now six times what it was then. (9)
The second part of the larger study will examine how presidents whose campaigns played on the public's fear of crime and who closed the door to clemency for applicants without connections opened it for their friends. As the official route to clemency all but closed, a back-door route opened. In the three administrations that preceded Obama's, applicants with political connections and/or high-priced, well-connected lawyers bypassed the Department of Justice, disregarded its regulations, and obtained clemency on grounds not available to others. This Article tells part of that story.
BILL CLINTON AND CRIMINAL JUSTICE
In 1862, following the "largest massacre of whites by Indians in American history," (10) a military tribunal sentenced 303 Sioux Indians to death. Officials on the scene advised President Lincoln that, unless all of the Indians were executed, "private revenge would on all this border take the place of official judgment." (11) Lincoln, unintimidated, reviewed the record of each case and commuted the sentences of all but thirty-eight of the condemned. After Lincoln won re-election in 1864, a Minnesota senator remarked that if he had executed more Indians he would have carried the state by a larger majority. Lincoln replied, "I could not afford to hang men for votes." (12)
In 1992, Governor Bill Clinton of Arkansas conspicuously interrupted his presidential campaign in order to be in Arkansas when a seriously brain-damaged murderer was executed. The murderer, Ricky Ray Rector, famously told the officers who took him to his death that he had put the dessert from his last meal aside in order to have it later. (13)
Clinton, who called himself a "new Democrat," (14) said that Democrats "should no longer feel guilty about protecting the innocent." (15) Although he once opposed the death penalty, (16) his administration sponsored legislation that, he noted when running for reelection, "expanded the death penalty for drug kingpins, murderers of federal law enforcement officers and nearly 60 additional categories of violent felons." (17)
This legislation, the Violent Crime Control and Law Enforcement Act of 1994, also granted funds to the states for hiring 100,000 police officers and authorized $9.7 billion in grants to the states for building prisons. It provided no funds for public defender services and eliminated federal grants for inmate higher education. (18) During Clinton's eight years in office, a time of declining crime rates, state and federal prison and jail populations grew by 592,062 inmates (from 1,369,185 in 1993 to 1,961,247 in 2001). (19)
Clinton also signed the Antiterrorism and Effective Death Penalty Act of 1996, which greatly restricted the use of federal habeas corpus to review state criminal convictions. His signing statement did urge judges to construe the restrictions narrowly to avoid constitutional issues. (20)
Clinton's 1994 State of the Union address endorsed a three-strikes law. His line, "Three strikes, and you are out!" brought the loudest applause of the evening. (21) Clinton's pollster, Stanley Greenberg, had advised him that 80% of the public favored his proposal, but Clinton's Deputy Attorney General, Philip B. Heymann, resigned and protested the measure. (22)
Clinton once voiced concern about the mass incarceration of African-American men. In a 1995 speech at the University of Texas, he said:
[B]lacks are right to think something is terribly wrong ... when almost one in three African American men in their 20s are either in jail, on parole, or otherwise under the supervision of the criminal justice system--nearly one in three. And that is a disproportionate percentage in comparison to the percentage of blacks who use drugs in our society. Now, I would like every white person here and in America to take a moment and think how he or she would feel if one in three white men were in similar circumstances. (23) Two weeks after making this statement, Clinton signed legislation restoring the 1-to-100 crack/powder ratio that the United States Sentencing Commission had sought to eliminate. In the Anti-Drug Abuse Act of 1986, Congress required one hundred times more powder cocaine than crack to trigger the same mandatory minimum sentences, (24) and the Sentencing Commission had used the 1-to-100 ratio when imposing sentences higher than the mandatory minimums. Congress's and the Commission's actions produced enormous disparities between the sentences of black and white drug offenders, (25) but Clinton declared, "I am not going to let anyone who peddles drugs get the idea that the cost of doing business is going down." (26)
CLINTON AND CLEMENCY
In Clinton's first two-year term as Governor of Arkansas, he commuted seventy sentences, including the life sentence that James L. Surridge was serving for a 1964 murder. Surridge had a record of five felony convictions dating back to 1929, but he was seventy-three and had been diagnosed with terminal cancer. Upon his release on parole following Clinton's commutation, Surridge engaged in a crime spree that included a bank robbery and a murder. He lived another thirteen years. The commutation contributed to Clinton's loss of the governorship in 1980 and prompted his apology as well as a pledge to commute no more first-degree murder sentences. In Clinton's four subsequent gubernatorial terms, he commuted only seven sentences. (27) His successor, Jim Guy Tucker, found "a stack of 2,600 clemency requests" upon taking office. (28)
Clinton granted no pardons or commutations at all in four of his first five years as President, (29) and "six months into his final year in office, he had pardoned less generously than any president since John Adams." (30) During his first year as President, pardon attomey Margaret Colgate Love was ordered to close shop for all applicants without clout. A memorandum from the office of the Deputy Attorney General directed her to recommend a "denial of clemency in all cases except those in which a Member of Congress or the White House had expressed an interest." (31) Love recalls, "While this directive was later retracted, its spirit continued to inform the Justice Department's administration of the pardon power." (32)
Fifty-five percent of Clinton's pardons and 66% of his commutations came in the last year of his eight years as President. (33) When these grants are combined with those he made during his first two years as Arkansas governor, the distribution of Clinton's clemency grants forms an inverse bell-shaped curve with a long, flat base close to zero at the center.
MAKING UP FOR LOST TIME
On January 20, 2001, hours before the inauguration of George W. Bush, President Clinton issued 177 pardons and commutations. (34) More than thirty of Clinton's grantees had not filed applications with the Department of Justice, and thirty more had filed applications so recently that the Department could not evaluate them in the ordinary course of events. (35) For weeks, the White House had been "inundated" with pardon requests, pardon lobbying, and pardon meetings. (36) White House Counsel Beth Nolan explained:
They were coming from everywhere.... We had requests from members of Congress on both sides of the aisle, in both Houses. We had requests from movie stars, newscasters, former Presidents, former first ladies.... I refused to go to holiday parties because ... nobody wanted to know how I was, thank you very much. They wanted to know about a pardon. So I just didn't go...
Bill Clinton's parting pardon party.
|Author:||Alschuler, Albert W.|
|Position:||Centennial Symposium: A Century of Criminal Justice|
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