IG Report: Pardon Attorney Conduct Should be Reviewed
By Elizabeth Murphy | December 18, 2012 3:36 pm

The Justice Department’s Pardon Attorney inaccurately conveyed information to the White House regarding an inmate’s bid for a shortened sentence, according to an Inspector General report released today.

The conduct shown by Ronald Rodgers, the U.S. Pardon Attorney since April 2008, “fell substantially short of the high standards to be expected of Department of Justice employees and the duty that he owed to the  President of the United States,” stated today’s Inspector General report. The IG’s office also recommended the Office of the Deputy Attorney General review Rodgers’ conduct for possible administrative action.

Ron Rodgers (Credit: DOJ)

The department’s internal watchdog took up the review of Rodgers’ conduct after the joint-publication in May 2012 of an investigative piece by ProPublica and the Washington Post that asserted a man serving three life sentences in Alabama on drug offenses had recently received support from law enforcement and the presiding judge for a  commutation of his sentence. That support from the U.S. Attorney and judge was not accurately portrayed when given to the White House for further review, however, and his commutation request was denied. A commutation allows for the immediate release of an inmate from prison and is granted by the president.

Clarence Aaron was 24 when he was convicted in 1993 of playing a role in large-scale drug conspiracy. Prosecutors argued he helped arrange the sale and distribution of large quantities of cocaine and crack cocaine. U.S. District Judge for the Southern District of Alabama Charles Butler sentenced him to three life terms in prison, per the mandatory sentencing guidelines at the time. The ProPublica stories, written by reporter Dafna Linzer, revealed that it while it was Aaron’s first criminal offense, he received the harshest sentence of anyone convicted in the conspiracy. He also did not serve as the buyer, seller or supplier of the drugs in the case, the ProPublica story explains. The Inspector General took up the review of this case after a request from Rep. Chaka Fatah (D-Pa.).

His case caught the attention of civil rights groups, after he appeared in a PBS “Frontline” documentary in 1999. In 2001, Aaron filed a petition for clemency. Three years later, then-Deputy Attorney General James Comey sent the White House the department’s letter recommending Aaron’s petition be denied. President George W. Bush took no action on the department’s advice letter until 2007, when the White House asked the department reconsider Aaron’s petition, which was still pending. Rodgers took office in spring 2008 and later that year received updated comments from the U.S. Attorney for the Southern District of Alabama and Judge Butler.

Deborah Rhodes, who was installed after the department’s first recommendation against Aaron’s petition, wrote in a five-page letter that she believed that Aaron should be granted a commutation of his sentence.

“While I believe Aaron should receive some reduction, I respectfully recommend against the granting of his request for time served and recommend a 25 year sentence,” she wrote. “This fairly balances his rehabilitation against the seriousness of the offense, his minimization, and the sentences of other defendants in this district. Finally, since Aaron has already served time equal to a sentence of close to 18 years, it will also allow for a structured transition from incarceration to release.”

The judge told Rodgers’ staff that he would “have no objection to commuting the sentence to time-served.”

Those recommendations were muddied when they were sent to the White House for review, the Inspector General report found. Rodgers took the unusual step of asking the Office of the Deputy Attorney General if he could email the new information he received directly to the White House rather than drafting a new memo for the DAG’s review.

According to the IG’s report, Rodgers said he suggested that option because of concerns over time constraints. “He was concerned about his office’s ability to complete the review process because of the short amount of time left to the Bush administration, the hectic environment regarding clemency matters and the large number of commutation petitions pending at that time,” the report states.

Clarence Aaron (Screenshot)

Associate Deputy Attorney General David Margolis ultimately authorized Rodgers’ plan, telling the IG’s office that since the Pardon Attorney was only adding facts to an unchanged department recommendation, it was “not unreasonable to proceed with Rodgers’s suggested supplemental e-mail.” (Margolis told the IG’s office he  could not recall the exact conversation governing this decision, but an email correspondence indicates he likely did give the OK, the IG found.)

Rodgers then wrote an email relaying the U.S. Attorney’s and Judge’s recommendations, which was edited by a counselor in the Office of the Deputy Attorney General. The email, along with Comey’s 2004 recommendation denying clemency, was then sent in Dec. 3, 2008, to Kenneth Lee, then-Associate White House Counsel to Bush. Twenty days later, on Dec. 23, the White House officially denied Aaron’s clemency request.

Lee told the IG’s office that had Rodgers’s email been clearer, he would have advised the department to redo its 2004 recommendation in light of the new comments from the U.S. Attorney and judge.

“Rodgers’s e-mail to the White House, approved by the Counsel, downplayed the significance of U.S. Attorney Rhodes’s views,” the IG found. “In the e-mail, Rodgers stated that Rhodes’s position was a ’slightly revised’ recommendation from the U.S. Attorney. In fact, the change was dramatic.”

While former U.S. Attorney David York opposed clemency all together in 2004, Rhodes recommended commuting Aaron’s life sentence to 25 years in prison, the report found. In addition, the judge’s opinion as retold in Rodgers’s email was “ambiguous and risked causing confusion or a misunderstanding.”

What’s more, the IG has recommended the Office of the Pardon Attorney review past cases to identify other instances in which the office sent a supplementary email to the White House.

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