A Supreme Court justice’s observations about a dearth of commutations in recent years and a high-profile whistleblower’s clemency petition have breathed new life into a public discussion about reforming the pardon program.
Meeting behind closed doors, Justice Department and White House officials have been considering changes to the system since the start of the Obama administration, though the White House appears to have scaled back its ambitions after key personnel changes.
Former White House Counsel Greg Craig, now a partner at Skadden, Arps, Slate, Meagher & Flom, led a push for major reforms before stepping down last November, according to two people with knowledge of the discussions. He received support from then-Deputy Attorney General David Ogden, who recently returned to his practice at Wilmer Cutler Pickering Hale and Dorr LLP, the individuals said.
Attorney General Eric Holder — whose involvement in the controversial pardon of fugitive financier Marc Rich at the end of the Clinton administration threatened his career — also expressed interest in making the clemency program “more systematic,” said one of the individuals.
The Justice Department’s Office of the Pardon Attorney receives clemency applications and makes recommendations to the White House via the Office of the Deputy Attorney General. A backlog in the pardon office, coupled with fewer clemency grants in recent years, has driven applicants to reach out to the White House directly.
Some critics say the current system is obsolete because it provides the president with no assurances that his grants will be free of political consequences. Meanwhile, they say, a tool used in the past to “correct injustices that the ordinary criminal process seems unable or unwilling to consider,” as Justice Anthony Kennedy once wrote, has fallen into disuse.
An idea favored by Craig was the creation of a blue-ribbon commission or an advisory process inside the Justice Department but apart from the pardon attorney, the people said. After he stepped down in November, however, discussions turned to developing criteria under which clemency petitions should be granted in the existing program.
“Like every administration, we are updating the policy guidance for DOJ on requests for executive clemency,” a White House official said.
Craig and Ogden declined to comment. A Justice Department spokeswoman declined to comment while the policy was under review.
The clemency issue gained attention after the Supreme Court heard arguments last month in Dillon v. U.S., a case brought by a federal prisoner who was sentenced in 1993 to 27 years behind bars for trafficking in crack cocaine.
Percy Dillon, described as a model prisoner, asked the court to decide whether the U.S. Sentencing Commission erred in limiting federal judges’ discretion in new sentencing hearings under Congress’ 2007 reduction in the crack guidelines. A federal judge had called his original sentence “unfair” and “entirely too high.”
At one point, Justice Kennedy asked the government’s lawyer whether the Justice Department ever recommends clemency for prisoners like Dillon. He also questioned whether the lack of commutations last year and the five the year before signaled that “something is not working in the system.”
Margaret Love, a solo practitioner who was pardon attorney in the George H.W. Bush and Clinton administrations, wrote on the American Constitution Society’s blog that the government’s inability to respond to Kennedy’s question “spoke volumes about the deteriorated state of the Justice Department’s clemency program.”
Jenner & Block LLP partner Kenneth Lee, a former White House associate counsel who assisted President George W. Bush with presidential pardons, called on President Barack Obama to make immediate use of his clemency powers.
“Obama should not hesitate or further delay exercising this power with vigor,” he wrote in an April 12 op-ed in The National Law Journal.
The next week, an ex-banker who blew the whistle on mass tax evasion at Swiss bank UBS AG filed a clemency petition, again nudging the issue to the forefront. Bradley Birkenfeld, whom the Justice Department said was crucial to its investigation, is seeking a reduction to time served on his 40-month prison sentence for a fraud conspiracy conviction.
His lawyer, Dean Zerbe, said Birkenfeld’s role in the massive tax case presented a question of policy that made him an attractive candidate for clemency: whether the federal government is sending mixed messages by seeking prison time for a tax whistleblower while encouraging whistleblowers to come forward in its aggressive pursuit of offshore tax evaders.
“Brad certainly provides a good case that reasonable people can look at and say, ‘Let’s think this through and see what we accomplished here,’” said Zerbe, of Zerbe, Fingeret, Frank and Jadav. But Zerbe acknowledged that seeking a commutation “is certainly not an easy road for folks, and it’s an even tougher road for folks who haven’t finished their sentence.”