No ‘Systematic’ Racial Bias in Presidential Pardon Process: Report

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A study of pardon-petition evaluations performed by the Office of the Pardon Attorney (OPA) indicated that evidence of racial bias in OPA’s patterns and practices isn’t statistically significant, according to a RAND Corporation analysis .

But the RAND report adds there’s “no question” that white petitioners were more likely to receive pardons than Black petitioners, despite finding insignificant evidence of “systematic” racial bias.

Funded by the Bureau of Justice Statistics (BJS), the third-party “Working Paper” involved a statistical examination of the practices of OPA, the unit within the Department of Justice (DOJ) that assists the president by processing thousands of requests for executive clemency.

Examining OPA’s screening of incoming petitions for technical compliance, investigations of petitioners’ clemency requests and applications of standards that determine whether the president grants such requests, the authors evaluated a sample of petitions disposed from October 1, 2001 through April 30, 2012.

The team of six researchers — Nicholas M. Pace, James M. Anderson, Shamena Anwar, Danielle Schlang, Melissa A. Bradley and Amalavoyal Chari — were tasked with testing “the primary hypothesis” that “African Americans and other minorities are less likely to progress in the pardon adjudication process than applicants of other races.”

They identified observed differences between petitioners who are likely and unlikely to receive a pardon, presenting their findings through “caricatures” of successful and unsuccessful petitioners.

The prototype of the most successful petitioner was a U.S.-born white man who committed a white-collar crime in his late 20s. The least successful petitioner resembled a Black woman born outside the U.S. who committed a firearms-related crime in her late 30s.

The authors acknowledged that a small sample size may have hindered the accuracy of these illustrative examples.

Examining the decision to grant or deny a pardon, the authors identified five factors that most strongly predict if a petitioner will be pardoned. They include:

      • Waiting more than 20 years since incarceration or conviction before applying;
      • Receiving a positive review from the U.S. Probation and Pretrial Services System (USPO);
      • Not having a criminal record prior to the underlying conviction;
      • Not having a criminal record after the underlying conviction; and
      • Having the pardon decision made during the George W. Bush administration as opposed to the Barack Obama administration.

In addition to possessing these characteristics, petitioners who actively engaged with their faith, participated in charitable activities, were honorably discharged from the military, received character assessments from government officials and haven’t received alcohol or drug treatment after conviction were more likely to be pardoned.

The authors cautioned that “while it is reasonable to conclude that individuals with these factors were more likely to receive a pardon, it is possible that not all of these findings represent a causal relationship.”

The report’s random sample may have influenced the authors’ conclusions, they added.

In marked contrast to the RAND report, a 2011 ProPublica investigation found that white petitioners were almost four times as likely than people of color to be pardoned. The RAND researchers attributed this difference to discrepancies between the small, random samples the two groups analyzed: while the ProPublica sample contained relatively fewer successful Black petitioners, the RAND sample contained significantly more.

The report encouraged future researchers to analyze samples of pardon petitions on a “level of granularity.” For instance, unemployed petitioners are less likely to be pardoned than employed petitioners — but the RAND report didn’t account for the influence of persistent unemployment disparities between Black and white workers.

The authors indicated other areas for further examination, including the overrepresentation of white petitioners compared to Black and Hispanic pardon seekers. Encouraging federal criminal defense attorneys to inform their clients about the possibility of petitioning for a pardon, assisting petitioners through free clemency clinics, and expanding programs like Obama’s 2014 clemency initiative might address this racial imbalance.

OPA, too, “appears to be having increased difficulty in keeping up with the incoming pardon caseload,” according to the authors, who emphasized that “unconscious or conscious bias” might move an OPA staff member to unfairly influence the outcome of a petition, despite the fact that little evidence exists to demonstrates widespread bias in OPA’s practices.

“While solid evidence of systematic bias may not be present in our data,” the report reads, “our examination of the OPA evaluation process suggested that there are other areas that may merit a closer look by policymakers.”

To access the full report, click here.

Eva Herscowitz is a TCR Justice Reporting intern.

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