Presidential pardons are a matter of course. At the end of every president’s term of office the “clemency curious” are just that over who will be the recipients of the president’s favor – that right granted to the president to pardon pretty much anyone for anything. Governors have the power, too, but only within their state. The President’s power extends throughout the country.
I’m surprised there is not yet a streaming series entitled The Pardon for all the pomp, circumstance, and suspense some get. https://www.insider.com/list-of-most-famous-shocking-presidential-pardons-in-us-history#george-washington-issued-the-first-presidential-pardon-by-excusing-two-men-who-participated-in-the-whiskey-rebellion-1
According to the Constitution a presidential pardon is “the right given to presidents to pardon others for committing crimes, to commute sentences of those who have committed crimes, or to extend pardons to those who might be charged with crimes”. https://www.infobloom.com/what-is-a-presidential-pardon.htm
Or put this way:
“The president’s power to pardon is granted by Article II, Section 2, Clause 1 of the Constitution, which provides: “The President … shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” https://www.thoughtco.com/presidential-pardons-legal-guidelines-4070815
Hmmm, I can see why “The Donald” was so anxious to pardon himself throughout his presidency, not that the Republicans ever would have let him get impeached in the first place. But I digress. Although perhaps not, this article speaks to the entire pardon process and how the selection process takes place for those that are fortunate enough to have their crimes forgiven.
What might go through the mind of a POTUS when it comes time to pardon someone?
In the 1970s President Gerald Ford pardoned former president Richard Nixon (truly Nixon’s infractions seem almost trifling compared to inciting an insurrection on the Capitol and other such misdeeds that our former POTUS can be remembered for if not indicted for https://www.washingtonpost.com/outlook/rap-sheet-trump-crimes/2020/10/16/c6a539da-0e61-11eb-8a35-237ef1eb2ef7_story.html)
Yet, in an unusual movc, Ford pardoned Nixon when Nixon had not been charged with any crimes but had been named a “an unindicted co-conspirator” in some of the Watergate-related matters which is why Nixon resigned from office – you might say Ford was acting preventively so that Nixon could not be indicted or convicted.
“That was unusual, but it was within his pardon powers, and Ford did it because he felt that Nixon had suffered enough — he had lost his office, he had resigned his presidency, the first president in American history ever to resign in disgrace. And there was a strong feeling, as well, that the country needed to move on from the Watergate matter, and the best way to do that, Ford felt, was to pardon Nixon and set aside the possibility that there would be some kind of nasty, lengthy, protracted prosecution of Nixon.”
“It was a politically controversial decision for Ford to issue the pardon of Nixon, Gerald Ford’s popularity dropped dramatically, and Ford himself always felt that the Nixon pardon was what caused Ford not to be elected president two years later in 1976.”
Ford pardoned Nixon because he felt that both Nixon and the country had suffered enough and his political calculation and compassion may have cost him a second term.
Then there are the pardons of friends and political allies. One controversial one was the last minute unvetted pardon of Marc Rich in the final days of Bill Clinton’s presidency https://www.chicagotribune.com/sns-clinton-pardons-analysis-story.html
“At the end of his presidential term, Bill Clinton pardoned Marc Rich, and it was surely the most controversial pardon that he issued. Clinton issued a flurry of pardons at the very end of his presidency. Many of them did not go through the usual vetting process, as they say, where lawyers in the Justice Department will examine various pardon claims. But Marc Rich was one example of a pardon that jumped over that process, and that raised suspicions.”
“Marc Rich and his wife had close ties to Bill Clinton. They raised money for his campaigns.”https://www.rferl.org/a/The_Hows_Whys_And_Whens_Of_US_Presidential_Pardons/1372250.html
So how does the presidential pardon process actually work?
“Someone who has been convicted of a federal crime and wants to be pardoned makes a request for a pardon to the Justice Department’s Office of the Pardon Attorney, which assists the president in exercising his pardon power. Department rules tell pardon seekers to wait at least five years after their conviction or their release from prison, whichever is later, before filing a pardon application.”
“It’s then up to the pardon office to make a recommendation about whether a pardon is warranted. The office looks at such factors as how the person has acted following their conviction, the seriousness of the offense and the extent to which the person has accepted responsibility for their crime. Prosecutors in the office that handled the case are asked to weigh in. The pardon office’s report and recommendation gets forwarded to the deputy attorney general, who adds his or her recommendation. That information is then forwarded to the White House for a decision.” https://www.pbs.org/newshour/politics/presidents-pardon-power-works
In this humble writer’s opinion and not being a lawyer it seems to me anyone in federal prison for a non-violent criminal offense (like cannabis) should be pardoned. So let’s see if it works this way. So far my two previous examples are off script.
According to the Brennan Center for Justice the pardon power should be used as a mechanism to level the playing field of what is an inequitable criminal justice system. https://www.brennancenter.org/our-work/research-reports/presidential-pardon-power-explained
“The Constitution gives the president the “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” When it comes to reducing our prison populations, we’ve argued that this power should be used more frequently as a vital mechanism of mercy, tempering the often harsh, racist, and inequitable effects of our criminal legal system.”
“But the pardon power also comes with the risk of abuse. Never has this been more apparent than under President Trump, who has used it to grant clemency to people convicted of crimes relating to his presidential campaign. And now, Trump is reportedly considering trying to pardon himself for a variety of crimes, which would be unprecedented.”
How has it fared these past few years for those sitting in prison?
“Thus far, President Trump has granted just over 90 pardons and commutations, primarily to his friends and political allies. And he has talked about adding himself to that list: in 2018, he tweeted, “As has been stated by numerous legal scholars, I have the absolute right to PARDON myself.””
“Meanwhile, there are thousands of people who are potentially appropriate clemency candidates sitting in federal prison.”
It sounds like one has a better chance of winning the lottery than being granted a pardon. So where does Noah Kleinman fit into this and why does it matter?
Noah Kleinman is actually someone who got lucky at the pardoning power of Donald Trump on the night before the end of Trump’s term. Noah Kleinman is a 45 year-old widower with two children who served 6 years of a 17.5 year sentence for a non-violent crime to distribute marijuana. That is why this matters. Trump granted pardons to 143 people and while many were his friends and other VIPs, a large number of those pardoned were non-violent drug offenders and that is the beginning of criminal justice and clemency reform.
These additional points make Kleinman’s case noteworthy:
“Earlier on the same day that President Trump commuted Kleinman’s sentence, the US Department of Justice filed a lengthy motion opposing Noah’s separate pending motion for a compassionate release, which was to be heard by his trial court judge. Despite Mr. Kleinman’s tragic family circumstances, exemplary behavior in prison, serious and chronic health conditions, and nonviolent record, federal prosecutors argued in filings right before Presidential Trump commuted his sentence that Mr. Kleinman should stay locked up because he was a “danger to society” given his “irresponsible social habits,” that he couldn’t be trusted to avoid killing people by spreading his Covid-19 infection, and that he shouldn’t be released until he could prove how he would pay for his own healthcare upon release. Given federal prosecutors’ ruthless determination to keep Mr. Kleinman imprisoned, Trump’s decision to commute his sentence came as a gratifying surprise.”https://blog.margolinlawrence.com/justice-delayed-but-not-defeated-for-former-federal-client-noah-kleinman
The Aleph Institute was integral in securing Kleinman’s release.
“The Aleph Institute is a 501c3 certified non-profit Jewish organization dedicated to assisting and caring for the wellbeing of members of specific populations that are isolated from the regular community: U.S. military personnel , prisoners, and people institutionalized or at risk of incarceration due to mental illness or addictions.”
“Aleph addresses their religious, educational, and spiritual needs, advocates and lobbies for their civil and religious rights, and provides support to their families at home left to fend for themselves.”
“The Aleph Institute is committed to criminal justice reform and recidivism reduction through preventive-education and faith-based rehabilitation programs, re-entry assistance, alternative sentencing guidance and counsel, and policy research and recommendations.”https://aleph-institute.org/wp/
The pardon process like the criminal justice system is broken and in need of reform. The Biden Administration has an opportunity to fix what is broken and create a fair and just clemency system. He has an opportunity to reach out to outside organizations like the Aleph Institute and work with these groups in helping to reintegrate former inmates back into society and to take recommendations as to who might be worthy of release. The collateral damage of a federal conviction runs deep – “there are approximately 45,000 collateral consequences of a felony conviction imposed by federal, state, and local governments, ranging from the right to vote to access to housing” – society is not kind and employment and other opportunities may be closed to former prisoners but a pardon eliminates that damage.
“Clemency is a vital part of the separation of powers. It allows a president to check both the legislative and judicial branches.”
“The clemency power also allows a president to correct decisions of prior administrations with which the president disagrees. The clemency power thus allows the president to direct criminal justice policy without legislation.”
“Previously, federal parole could address a variety of systemic and individual injustices arising from criminal prosecutions, such as wrongful convictions, overly harsh charging and sentencing determinations, and prison terms that extend well beyond the need for rehabilitation. But with the elimination of federal parole in 1984, there is no process for releasing those in federal prison who, through their rehabilitative efforts, no longer pose a threat to public safety. By reinstituting a forward-leaning clemency process, the system can more easily recognize those deserving of mercy.”
If the president can grant pardons as he or she wishes then how is the system broken? Let’s take a look at the system that is “set up to derail the president’s pardon privileges”.
“Under the current process, a clemency petition can be blocked anywhere along a lengthy line of decision points. It’s a system with a built-in bias against granting any form of clemency.”
“Currently, the Office of Pardon Attorney (OPA), located in the DOJ, gathers information and makes a recommendation on each individual clemency petition. Staff at OPA are required at the outset to seek the opinion of the local prosecutor who pursued the case. If that prosecutor recommends a denial, then petitions often receive negative recommendations at that point.”
“At the second step, the Pardon Attorney makes a recommendation. If the pardon attorney says no, the clemency petition will likely later die. The third stop is the desk of a staffer for the deputy attorney general (DAG), who does yet another review. The fourth stop is the DAG themself, who essentially supervises all criminal prosecutions at the DOJ and is a liaison between main DOJ and prosecutors. The DAG is probably the least likely person to second-guess the local prosecutor who recommends a denial, given the close working relationship between the DAG and prosecutors in the federal districts. By the time a recommended denial gets to staff of the White House Counsel, any hope for clemency is gone. The White House Counsel’s office has many other responsibilities, and it does not have the time or resources to run a full-blown clemency second-look operation. White House Counsel conducts the final review, with only favorable recommendations being presented to the president.”
This is what happened with Noah Kleiman. But luck was on his side. The Department of Justice was about to deny Kleinman’s motion for compassionate release earlier on the same day that President Trump pardoned him.
“The current process poses an inherent conflict of interest; as Heritage Foundation scholar Paul J. Larkin Jr., has noted, “the current system leaves too much authority over clemency petitions to the Justice Department, the very agency that prosecuted every federal clemency applicant.””
Perhaps in Donald Trump’s last day he did one thing right and that was to shine a light on and pardon a large number of non-violent drug offenders. This broken system needs to be revamped and Joe Biden can pick up in this one area where Donald Trump left off.
“At its core, reforming the system must at the very least involve removing the Office of Pardon Attorney from the DOJ and removing the DOJ’s ostensible veto power over the process. The establishment of a bipartisan board to advise the president and make recommendations would not only improve the efficiency of the process, it would also bolster the public’s confidence in it. And by doing so, the new process would offer the president more opportunities to grant mercy and forgiveness to those who are worthy of it.” https://theappeal.org/the-lab/research/how-joe-biden-can-fix-the-broken-clemency-process/
Author: Sherri Margolin (Dark Matters)