Is the Federal Pardon Process Racially Biased? It's Time to Get Answers


Julie Stewart

A recent panel discussion at the National Press Club, sponsored by Families Against Mandatory Minimums (FAMM) discussed allegations of corruption at the little-known Office of the Pardon Attorney (OPA) within the U.S. Department of Justice (DOJ).

Among the panelists was Dafna Linzer, the Pro Publica reporter whose dogged determination resulted in two front-page Washington Post stories on the OPA, including one that concluded that whites are four times as likely as non-whites to receive a presidential pardon, even when the circumstances of their crimes are roughly the same.

Seven months have passed since Ms. Linzer's first expose was published. Yet neither the OPA nor the DOJ has responded publicly to its serious allegations of racial bias. When asked at FAMM's briefing if she was surprised by DOJ's public silence, Ms. Linzer observed that if the type of racial discrimination produced by the current pardon process were found at the state or local government level, DOJ would probably get involved and initiate an investigation.

“Yet here,” she said, “we have a case of contemporary race disparity happening within the Justice Department itself.”

It's time to get some answers.

This week, 15 leading constitutional and criminal law professors sent a letter to the U.S. Senate Judiciary Committee urging the committee to investigate the OPA.

“While Congress properly plays no role in the actual consideration of clemency petitions,” the group wrote, “there is a duty of oversight relating to the operation of this office.”

The law professors' letter is the fourth request for a review of OPA. On May 21, FAMM and more than 35 criminal justice reform groups sent a letter asking the Senate Judiciary Committee to investigate the office.

A day later, U.S. Representatives John Conyers (D-MI) and Robert “Bobby” Scott (D-VA) urged President Barack Obama to review OPA's conduct with regard to Clarence Aaron, whose petition for commutation was allegedly sabotaged by the current pardon attorney, Ronald Rodgers.

Finally, on June 11, a group of 16 formerly incarcerated people who received sentence commutations from Presidents Bill Clinton, George W. Bush, and Obama urged the president to initiate an investigation of OPA.

Concerns about OPA's misconduct are bipartisan and cut across administrations. Former Maryland Gov. Bob Ehrlich, a Republican, co-authored an op-ed with me that called for a congressional investigation. Conservative columnist Debra Saunders has long championed clemency for Clarence Aaron and expressed outrage and surprise at the intentional torpedoing of his application, the evidence of which was reported by Ms. Linzer.

And Kenneth Lee, Associate White House Counsel to George W. Bush, told Ms. Linzer that Clarence Aaron's petition was presented to him “in the least favorable light to the applicant”.

The President's constitutional authority to grant clemency is too important to be left in the hands of people who have their own agenda.

Commutations can correct the excesses of harsh, mandatory minimum sentences. Pardons ensure that rehabilitated individuals get the clean slate they need to land a job or to get a line of credit to start a new business. More generally, the clemency power recognizes that our justice system is imperfect, and that prosecutors and police sometimes make mistakes.

The clemency power belongs solely to the President of the United States. If Presidents Bush and Obama believed every federal sentence handed down under their watch was the perfect length and that no ex-offender who served his time deserved a second chance, that would be their right. We know from Ms. Linzer's reporting, however, that President Bush believed otherwise and sought to extend mercy to more offenders.

We also know that he ignored the OPA in a couple of cases and granted clemency when the office hadn't recommended it. I refuse to believe that President Obama, who criticized mandatory minimum sentences during the 2008 campaign and signed into law the Fair Sentencing Act to reduce sentences for crack cocaine offenses, is any less compassionate.

The OPA's only job is to assist the president by providing him with the unbiased information he needs to fulfill his constitutional clemency power fully and fairly.

It is clear that the OPA is failing miserably. Since the OPA (and DOJ) will not even respond publicly to serious allegations of incompetence and corruption, Congress must investigate.

Julie Stewart is president and founder of FAMM (Families Against Mandatory Minimums). FAMM works for fair and proportionate sentencing laws that allow judicial discretion while maintaining public safety. She welcomes comments from readers.

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