ProPublica’s Dafna Linzer continues her examination of the federal pardons process with a piece, excerpted in Monday’s Washington Post, that contrasts two pardon candidates. Both cases are the sort of victimless drug offenses that clog the federal detentions system. One involves a star athlete with no prior criminal record, and a prosecutor’s office and judge who favored immediate commutation of the sentence. The athlete was present at a drug sale, and he introduced the parties to one another, for which he received a gratuity from the dealer. Though such offenses are theoretically prosecutable, this very rarely happens.
This pardon candidate is black; he was sentenced to three lifetime terms in prison. The other candidate is on his fourth conviction for drug trafficking, this time as a major meth dealer. He refused to cooperate with prosecutors, who strongly opposed his release. But he had the backing of politically connected family and friends, including some well-positioned Republican office holders. Moreover, he was white. Both files landed on the desk of President George W. Bush on the same day, December 23, 2008. Can you guess which request he granted? That would be the politically connected white man, Reed Raymond Prior. The black man, Clarence Aaron, a former linebacker at Southern University in Baton Rouge, Louisiana, had his request rejected.
The injustice here will be obvious even to casual reviewers of the cases. But Linzer goes further, looking into the particular role that the Justice Department itself plays in this hideously unfair, suspiciously racist, and corrupt process. She sheds some light on the secretive manner in which the DOJ official in charge of pardons, Ronald Rodgers, goes about his job—painting an unflattering portrait of institutional lethargy and conflict of interest. As Linzer notes, the judge and others close to the case immediately saw the injustice of Aaron’s sentence and pressed for a pardon, which resulted in a submission to Rodgers. Not only did Rodgers not follow their recommendation, he suppressed their views so the White House wouldn’t learn about them:
[T]he George W. Bush administration, in its final year in office, never knew the full extent of their views, which were compiled in a confidential Justice Department review, and Aaron’s application was denied, according to an examination of the case by ProPublica based on interviews with participants and internal records.
That Aaron joined the long line of rejected applicants illuminates the extraordinary, secretive powers wielded by the Office of the Pardon Attorney, the branch of the Justice Department that reviews commutation requests. Records show that Ronald Rodgers, the current pardon attorney, left out critical information in recommending that the White House deny Aaron’s application. In a confidential note to a White House lawyer, Rodgers failed to accurately convey the views of the prosecutor and judge and did not disclose that they had advocated for Aaron’s immediate commutation.
The pardons process in the United States is broken. President Bush issued fewer pardons and commutations than any two-term president since Thomas Jefferson, and the process has crept to a virtual standstill under Barack Obama. The ProPublica investigation has done a superb job of charting exactly where the blockage occurs: with Rodgers and his supervisor, David Margolis. The pair has shut down the pardons process by improvising a prosecutorial right of veto onto the system.
If there is a silver lining in this situation, it’s the obvious prospect of cost savings. The DOJ’s Office of the Pardons Attorney serves no apparent purpose—the system would function more or less the same whether its staff came to work or not. It would therefore make sense simply to shut down the office entirely. And since the DOJ seems unable to advise the president on pardons without encountering obvious conflicts of interest, there are constitutional grounds for this solution, as well. The DOJ would still be entitled to express its views on specific cases—though given its self-serving track record, these views would have far less credence than those of judges, prison authorities, and community leaders.
I recently examined the pardons process in Kazakhstan, an authoritarian state with a weak rule-of-law tradition. Despite this state of affairs, the pardons process functioned smoothly there, with cogent criteria established and applied, resulting in significant numbers of pardons that cleared out doubtful and borderline cases involving petty and non-violent crimes from the overburdened prison system. Could the United States handle pardons as efficiently and humanely as Kazakhstan? Not while the Justice Department is playing a key role in the process.
Former White House counsel Greg Craig recently offered a sensible alternative approach at a function sponsored by the American Constitution Society. After advocating for the removal of the Department of Justice from the process, he called for the creation of an “independent commission led by a panel of distinguished commissioners who are both Republicans and Democrats and who have a large enough staff to do the work that is needed.” Craig’s desire for the panel to be bipartisan is unfortunate, since this element of his proposal accentuates the distracting political elements of the criminal-justice process; far better would be to create a nonpartisan panel of former prosecutors, defense counsel, retired judges, prison administrators, ethicists, and other prominent community leaders. But the concept otherwise seems eminently reasonable, and urgently needed.