A proposal to restructure the clemency process - the Vice President as head of a White House Clemency Office.

• Author: Larkin, Paul J., Jr.

In the midst of the recent presidential campaign, the president's clemency power was a low priority issue. Neither candidate mentioned the subject during the debates or on the stump. The candidates' economic programs, foreign policy vision, and personal credibility outranked the importance of clemency by a country mile.

That is unfortunate for two reasons. Clemency is a prerogative that the president can exercise for any reason he or she deems appropriate without review, neither by Congress nor the courts. (1) How a president exercises that power therefore tells us a great deal about his or her view of the criminal justice system, as well as his or her character. (2) In addition, executive clemency, as the saying goes, "ain't what it used to be." With the exception of President Barack Obama, who granted a large number of commutations to drug offenders, (3) over the past few decades chief executives have granted clemency far less frequently than in years past. Various explanations have been offered for that decline: the increased accuracy of the trial process, the widespread use of plea-bargains, the institution of parole as an early release mechanism, the use of sentencing guidelines to prevent unduly harsh sentences, and fear by chief executives that an offender granted clemency will reoffend, causing them embarrassment and voter retribution. (4) In addition, some chief executives have likely been reluctant to sign clemency warrants because some warrants signed by predecessors have poisoned the well by resting on political or other ignoble considerations. (5) The bottom line is that clemency no longer plays the historic role that it did for most of our history and thus desperately needs to be fixed.

Two scholars--Professor and U.S. Sentencing Commissioner Rachel Barkow and Professor Mark Osier--have recently argued that the best solution is to create a formal clemency board along the lines of the Sentencing Commission, consisting of judges, former prosecutors, defense counsel, penologists, religious authorities, and the like. (6) Aside from providing the president with a broad range of views, a bipartisan, diverse clemency board would give the president any "cover" he may need to reform the clemency process. Only such a board, the argument goes, can function as a political shield.

That is a reasonable argument, although I find it ultimately unpersuasive because it would raise more problems than it solves. In my opinion, rather than create a formal clemency board the president should appoint one person to head a White House Clemency Office and serve as his principal clemency advisor. The vice president is the right person for that job.

1. THE PROBLEM: AN INSTITUTIONAL CONFLICT OF INTEREST

   The willingness to mitigate punishment or forgive wrongdoing has been a revered feature of Western Civilization. (7) In America, executive clemency was an accepted feature of colonial and early state criminal justice systems. (8) It was written into the text of the Constitution as the Pardon Clause of Article II, (9) and both the presidents and governors have granted clemency throughout our history." (1) The extraordinary power to grant clemency allows a chief executive to play God on this side of the River Styx by forgiving an offender's sins or remitting his punishment.

   Numerous commentators have recognized that the federal clemency process, however, is no longer fulfilling its noble purposes. (11) There is a consensus that the chief problem is the placement of the Office of the Pardon Attorney in the U.S. Department of Justice. That office came into being in the nineteenth century to assist the Attorney General in managing the clemency application process for the president, and it worked well for most of its history. (12) Recently, however, two factors have effectively torpedoed the effectiveness of that office: (1) the decision by Attorney General Griffin Bell to have the Pardon Attorney report to him through the Deputy Attorney General and (2) the post-1980 politicization of federal criminal justice. The combination weakens the role of the Pardon Attorney and creates either an actual or apparent conflict of interest, because the Deputy Attorney General is the Justice Department official principally responsible for supervising criminal prosecutions. Few officials in that position, critics argue, would be willing to recommend that the president exonerate or grant leniency to someone whom a colleague has sent to prison. (13)

   Critics of the process have suggested revisions of one kind or another. (14) Some have argued that the Office of the Pardon Attorney should be transferred from the department that prosecuted a clemency applicant to a new position in the Executive Office of the President. Others have suggested that the president or Congress should create an independent agency, similar to the U.S. Sentencing Commission, to review every clemency petition and independently forward its recommendations to the White House. Everyone, however, recommends that the president or Congress end the door-keeping role that the Justice Department currently plays.

   Yet, no one (myself included) has focused on the narrow question of who should head that office or chair that commission. That question is an important one for, at least, two reasons. In all likelihood, the person sitting in that chair will be responsible for setting the office's agenda, managing the flow of clemency petitions, choosing the supporting staff, and, in an ideal setting, meeting directly with the president to present his recommendations. Traditionally, the Office of the Pardon Attorney has been housed in the Department of Justice, and the Pardon Attorney has been a career lawyer, not a political appointee, certainly not someone subject to the "advice and consent" process contemplated by the Article II Appointments Clause. (15) Perhaps someone the president appoints should hold that position. So, whom should the president select as pardon attorney? In my opinion, the best person would be the Vice President of the United States.

2. A SOLUTION: THE VICE PRESIDENT AS CLEMENCY ADVISOR

   To say that the vice president occupies a humble position in the government is an understatement. (16) Daniel Webster declined the office, saying that "I do not propose to be buried until I am really dead." (17) "The chief embarrassment in discussing the office," wrote then-professor (and later President) Woodrow Wilson, "is that in explaining how little there is to be said about it one has evidently said all that there is to say." (18) John Adams, the nation's first vice president, described it as "the most insignificant office that ever the invention of man contrived." (19)

   The Constitution hardly proves them wrong, assigning the vice president only limited functions. As President of the Senate, he casts a vote in the event of a tie. When a joint session of Congress counts the Electoral College votes, he presides over the proceedings and certifies the results, and as "president-in-waiting," he succeeds the president upon the latter's death, resignation, removal, or (now) temporary disability. (20) Otherwise, he performs whatever tasks the president (or sometimes Congress (21)) assigns him. (22) Some assignments are substantial; others, far less so. (23) The last three vice presidents, Al Gore, Dick Cheney, and Joe Biden, have been valued advisors to the presidents they served, (24) but historically speaking the vice president's principal responsibilities (asides from having a pulse) were to serve as the nation's representative at state funerals, to undertake diplomatic missions for the president, to handle troubleshooting assignments, and to work on behalf of their party. (25) Accordingly, it is not surprising that the scholarly publications discussing the achievements of the nation's vice presidents are about as numerous as the pages that sportswriters devote to the exploits of benchwarmers. (26)

   Yet, the vice president may be the perfect choice as the president's principal clemency advisor. To start with, the vice president has the desired impartiality. The vice president has no law enforcement responsibility; that belongs to the president, the attorney general, and officials such as the Director of the Federal Bureau of Investigation. (27) The vice president therefore lacks the institutional conflict-of-interest that plagues the federal clemency process today.

   Aside from lacking a conflict of interest, several factors affirmatively militate in the vice president's favor. The vice president is a constitutional officer. He is elected to the same four-year term the president serves, he holds the second highest position in the executive branch, and he is removable only by impeachment. (28) The vice president therefore has the political independence, stature, and authority to mediate among the often-competing views of the Justice Department and the applicant, along with any general entreaties from the American Bar Association, the defense bar, or other organizations with an interest in clemency. Lodging the advisory authority in one official also improves the efficiency of the process and perhaps enhances the accuracy of the recommendations the president receives. (29) Finally, the vice president gives the president some political cover by sharing in any potential blame should the president's decisions prove unpopular.

   The next important factor is access. For most of our history, vice presidents did not have immediate access to the president. In fact, Walter Mondale was the first with a permanent office in the West Wing. (30) But every vice president since him has an office there, and every vice president since Nelson Rockefeller has had weekly meetings with the president. (31) That access gives the vice president a leg up on every other potential clemency advisor because he can literally walk to the Oval Office from his nearby quarters in the same building.

   Another...