No Comment — December 6, 2011, 7:26 pm

Unpardonable

Dafna Linzer and some of her colleagues at ProPublica have published a two-part feature in the Washington Post based on their year-long study of the American presidential-pardons system. The story’s conclusions are depressing, but they will surprise no one who has closely studied the Department of Justice in recent years:

White criminals seeking presidential pardons over the past decade have been nearly four times as likely to succeed as minorities, a ProPublica examination has found. Blacks have had the poorest chance of receiving the president’s ultimate act of mercy, according to an analysis of previously unreleased records and related data.

Figures from the Clinton and Bush administrations later respond to these findings with the usual amazement at just how this could be. Their reactions may have been sincere, but if so, they were extremely naive.

The ProPublica story is backed by a considerable collection of data and some compelling side-by-side comparisons:

An African American woman from Little Rock, fined $3,000 for underreporting her income in 1989, was denied a pardon; a white woman from the same city who faked multiple tax returns to collect more than $25,000 in refunds got one. A black, first-time drug offender — a Vietnam veteran who got probation in South Carolina for possessing 1.1 grams of crack — was turned down. A white, fourth-time drug offender who did prison time for selling 1,050 grams of methamphetamine was pardoned.

The study also found that pardon-seekers who had access to elected officials dramatically improved their odds of success. In the American political system, of course, access to elected officials is most easily secured by making generous campaign contributions:

Since 2000, a total of 196 members of Congress — 126 Republicans and 70 Democrats — have written to the pardons office on behalf of more than 200 donors and constituents, according to copies of their letters obtained through the Freedom of Information Act. Many of the letters urged the White House and the Justice Department to take special note of felons whom lawmakers described as close friends.

A statistical analysis of nearly 500 pardon applicants during the Bush administration suggests that advocacy makes a difference. Applicants with a member of Congress in their corner were three times as likely to win a pardon as those without such backing. Interviews and documents show a lawmaker’s support can speed up a stalled application, counter negative information and ratchet up pressure for an approval.

Pardons have played a significant role in the history of American political discourse: Gerald Ford’s decision to pardon Richard Nixon; George H.W. Bush’s pardoning of Caspar Weinberger and other Iran-Contra conspirators; Bill Clinton’s pardoning of tax cheat Marc Rich; George W. Bush’s commutation of Scooter Libby’s sentence. But the ProPublica study suggests that the real scandal surrounding the pardons process is far more systematic and lies outside these high-profile cases.

America today has risen to a position of leadership among nations in one humiliating category: per capita rate of incarceration. This ranking has been built largely on the basis of nonviolent crimes, in particular those relating to drug use. The laws for these crimes are not uniformly applied. They destroy the lives of minorities and the poor, while whites and those with means find the right lawyers and sympathetic law-enforcement officials, who permit them to sweep the matter under the carpet, or at least to avoid prolonged prison time.

The ProPublica series appears as I am two-thirds of the way through William J. Stuntz’s The Collapse of American Criminal Justice, a hugely important and timely work. Stuntz, who passed away earlier this year, was a conservative evangelical with political views quite far from my own. Yet reading his book, I am immensely impressed by the candor and clarity of his critique of the American justice system, and find almost nothing to disagree with. And in examining the ProPublica series, I am struck by how thoroughly it validates Stuntz’s critique of a justice system in which race, wealth, and political clout play embarrassing and decisive roles.

The presidential-pardon system should exist to right errors in the justice system, to set free those who have been wrongfully prosecuted and convicted, and to mitigate the sentences of those who have been treated with undue harshness. It should be an escape valve for the system’s misfires. But the ProPublica study shows clearly that it is not. By requiring a confession and acknowledgement of guilt, the pardons process systematically precludes any notion that the criminal-justice system could misfire. What matters instead, it turns out, is having a friend who has a friend on the president’s staff, having made campaign contributions to the right people, or commanding the resources to navigate the application process.

The real scandal is not some of the pardons that have been issued, but rather the absurd paucity of pardons. It is also the administration of the process by the Department of Justice and the White House. Clearly, uniform standards should be applied to the pardons system. But just as clearly, the system should not be overseen by an entity that views successful prosecutions as the primary proof of its utility, and that has developed an institutional incapacity to admit to mistakes or wrongdoing, even when that has meant sending an innocent man or woman to jail. Rather, the system should be administered by professionals who treat it with the seriousness it deserves; indeed, it needs to be committed to a person with the conscience, incorruptibility, and diligence of a William J. Stuntz.

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