(Except In Cases Of Poultry), The President May, Do What?
The Case For An Overhaul of The Federal Clemency System
On a recent four-hour flight, I met a presently enrolled USC law student. She expressed a keen interest when we discussed state-level expungement of criminal records. Although, the self-proclaimed public defender(-to-be) admitted confusion, as it pertains to how the federal process works. She said,
“I think only Kim or Kanye can get that done…”
Despite ‘confusion,’ that response’s pragmatism and idealism are ironic because its the most logical answer I’ve heard to date! If the idealist says: “the debate leads to a more perfect union,” and the pragmatist agrees…then, Washington, we have a problem (with our logic)!
“The fact that there’s no federal expungement process, is in-and-of-itself, a travesty,”
says Berkeley-educated, 21-year bar veteran, and San Francisco defense attorney, Lewis Romero.
Aside from a small expungement provision for a few minor offenses by the Controlled Substances Act, the 43-year old Romero is correct. For federal crimes, only one individual can provide a “clean slate.” Unfortunately, getting his attention isn’t easy — he’s protected by the largest and most superior armed security detail in the fast-growing world.
Article II, Section II of America’s Constitution bestows the aforementioned powers upon the President of The United States. The definition is limited to one sentence,
“(The President) shall have the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”
Funky prerequisites, and a growing populous are two key problems supporting a theory of an unconstitutional “pardon process.” Earlier this year, prison reform advocate and Huffington Post writer Matt Ferner, said,
“The bureaucratization of the process over time has also likely contributed to lower clemency numbers…
…(the pardon is) mired in a multilayered process.
Is this process limiting the ‘average Joe/Jane’ who needs post-conviction clemency in-order-to, say, make money, or care for his/her family? Or have we lost focus altogether when it comes to this issue?
In 1992 when President Bill Clinton was elected, former airline pilot Lyle Prouse, was fresh out of prison. The lifelong-pilot was jobless, licenseless, and five years-shy of 60, the then FAA-mandated retirement-age.
Despite hitting rock-bottom on network news in 1989, Prouse isn’t a “household name.” The former military aviator was busted and sentenced by a federal judge to 16-months in prison. This consequence was the result of Prouse flying a passenger-packed Boeing 727, from Fargo to Minneapolis, while legally drunk.
Prouse was ultimately pardoned by President Clinton and would fly again, retiring as a 747 Captain. However, not in that order.
With his passion and financial well-being on the line, he needed a shot at regaining his licenses, and a pardon would have, at least, allowed him to try. An (admittedly oblivious, per his book) Prouse wrote a letter to his federal sentencing judge, James E. Rosenbaum — not President Clinton, asking for a letter of support in a petition for reinstatement. In 1993, he earned that letter.
Prouse was pardoned on Clinton’s last day in office, along with Mark Rich and many others. Rich, then-a fugitive, one-time resident on the FBI’s “top-ten most wanted” list, and major Democratic donor, knew about the pardon, wanted a pardon, and was pardoned.
Ironically, Prouse’s redemption came with no help from President Clinton, Clinton’s pardon, came too late to help Prouse.
Per Prouse’s book, Judge Rosenbaum called his lawyer to congratulate him on retirement and offered to support the aviator in a pardon petition. Ironically, Prouse wrote, “he’d never supported a petition for pardon in his sixteen years on the bench but would support mine if I chose to attempt.” Prouse continued,
“I had never considered such a thing. The odds of obtaining a presidential pardon were almost unfathomable, but I faced long odds many times before.”
( In the last half-century: eight different full calendar years elapsed with more turkeys being pardoned than human beings. So, make of that what you will.)
As for Rich, The Chicago Tribune said his pardon was “a saga of secrecy, tenacity, sleight of hand, and pressure.”
Clinton would later admit regret in that decision, and that could be why George W. Bush didn’t “get fooled again,” as evidenced by his denial of a pardon (but instead a commutation) for Lewis I “Scooter” Libby.
Controversial instances of pardon use and the corresponding broad conveyance of authority, have resulted in an ongoing debate in our, not perfect, but “more perfect union.”
In summer 2018, media outlets endlessly debated if President Trump could pardon himself. Like any constitutional power bestowed on three equal but separate branches of government, they are a check and balance. The media scrutiny of pardons can make them very touchy, for those wishing to run again.
President Trump would ultimately pardon Scooter Libby, saying (on Twitter) that he didn’t know the man, and surmised the former Dick Cheney aid was “treated unfairly.” Whether veracious, or simply to gain favor with the Republican establishment — it’s his undeniable right, except in a case of impeachment.
President Gerald R. Ford’s pardon of President Richard Nixon, Washington’s pardons of the ‘Whiskey Rebels,’ or President Jimmy Carter forgiving the entire Confederacy; all served to limit factions from disturbing the peace.
Clemency granted to Jimmy Hoffa (Teamsters leader) and New York Yankees (known in some domiciles as the “evil empire” with 27 world series) owner George Steinbrenner, III — all served to calm society or stave off rebellion.
Before pardoning President Nixon on September 8, 1974, President Ford expressed faith that in doing so, he was performing his duty “to uphold the constitution.”
How could that be?
A 231-year-old essay’s expression that pardoning could ‘cool the jets’ of an irate faction was indeed the basis for thought that a pardon could calm a storm. However, it also advocates that everyday men and women make mistakes (like Lyle Prouse). Some face ultra harsh sentences, or they face uniquely disproportionate, encumbering challenges, upon reintegration.
On March 25, 1788, a trio of America’s “Founding Fathers” (and members of the Federalist party) penned that essay under the pseudonym: “Publius,” in this, the 74th, of 85 essays by the group. You may even recall stoically digesting one or more, collectively called The Federalist Papers, way back in High School. They also have merit, according to Associate Supreme Court Justice Sandra Day O’Connor, who once said,
“The framers of the Constitution were so clear in the federalist papers and elsewhere that they felt an independent judiciary was critical to the success of the nation. “
Predominantly, the essays were published in either The Independent Journal or The New York Packet. “74” appeared in the latter, specifically lobbying for pardoning as a “benign prerogative” of one man that should be “as little as possible fettered or embarrassed.” In contravention of its overall present use, “74” argues that pardons were designed as an avenue to relief from undue or excess punishment; or the overall well-being of our nation. An excerpt reads:
“The criminal code of every country partakes so much of necessary severity, that without easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.”
So, Mr. Ford appears to have done his homework in pardoning his predecessor, Nixon.
Nixon, ironically, held the highest pardon rate (as seen below) in the last century. His administration saw value in, the other rationale offered by the founders: when a man labeled a felon faces undue circumstances or disdain.
President Trump’s hovers under 2%. Over time, the gap has widened, which makes federal clemency so rare, many don’t even bother trying.
The pseudonym used by the primary author, Alexander Hamilton, is telling. I can empathetically opine that even in today’s world, being a well-known immigrant and harlot’s son isn’t an advantage when drafting propagative policy essays. I guess it also makes sense to add straight-laced gents like John Jay and James Madison to a still ambiguous byline when hoping to shape the thought of a nation. Did Hamilton (probably the most unfairly treated founding father) empathetically consider cases like that of Captain Prouse?
Ironically, some scholars believe Hamilton’s credibility-boost came with General Washington’s endorsement.
Being branded a “criminal” isn’t much different than what Hamilton faced. So, while the origins of the pardon are traced to factions in Britain, Hamilton’s passion for its inclusion shouldn’t be overlooked.
Polarizing characters like Trump, or Hamilton, don’t often earn majority votes (outside of a voting booth). The process, as Hamilton described it, was to avoid clemency’s obstruction by Congress’ partisanship. So, he expressed that as opposed to “a body of men,” one man is best suited for the responsibility.
According to Brian Kalt, in the Yale Law Journal, “(at the constitutional convention), There was little debate on the pardon power-only a few verbal exchanges and a couple of motions.”
Two centuries later, President Ford also said (in the same address), “my customary policy is to try and get all the facts and consider the opinions of my countrymen…but, in the end, they seldom agree, and the decision is mine.”
Sure, but you should at least know that these petitioners exist…is that even possible?
One executive in 1789 catered to a manageable 3.8 million Americans, a reasonable expectation with no felons on day one. That was about 1/90th of today’s population.
So the first pitfall is the process by which applications for pardons are filtered. The second is the failure to recognize the necessity of an expedient decision.
Have you heard of Alice Marie Johnston or Jack Johnson? If you’re not familiar, Ms. Johnston, a grandmother, was serving a life sentence for drug charges. She received a pardon in June 2018–with ample support from the advocacy of Kim Kardashian-West. Ms. Kardashian-West is studying to become, like her father (O.J.“Dream Team” Lawyer Robert Kardashian), an attorney admitted to the California bar.
Jack Johnson, dead since 1946, will always be the first black heavyweight champion of the world. In 1921, while in his cell, Mr. Johnson requested a pardon in a letter to President Wilson. The famous boxer was serving less than a year for what boils down to fraternizing with a white woman. Wilson vacated the office before receiving Johnson’s note.
Ninety-seven years later, President Trump took to Twitter, admitting that “Rocky” series star Sylvester Stallone called him to advocate for Johnson’s clemency. Several weeks later, Trump granted Johnson’s posthumous pardon.
Despite the controversial conviction, why does a man who has been dead for an amount of time equaling human life expectancy, need a pardon? What is a ‘feel-good’ story to some, for someone facing undue scrutiny and/or government limits on occupation due to a conviction for which time has been served (like Prouse), this would appear a bit heartwrenching.
In 2018, one felon needed a pardon, in-order-to save the jobs of those he employed. Of course the misunderstanding by the bureaucracy is highlighted in a callous response from the pardon attorney’s office…
“Please be aware that that the clemency process is extremely lengthy due to the number of matters pending and the need to carefully examine and investigate each petition and all associated documents. There is no process by which an application processed through this office may be expedited, and due to resource limitations, we will not be able to respond to future correspondence about the status of your case.”
In contravention, President Ford said,
“it is my duty, not merely to proclaim domestic tranquility, but to use every means that I have to insure it.”
If this is his duty, why is the pardon subjected to extensive vetting by a bureaucracy? Is the process constitutional? Could it be time to delegate such a power to one individual in, perhaps, each circuit court via a constitutional amendment?
Times change, however, societal demand for forgiveness, does not. Maybe it’s time we rethink pardons, in the interest of our nation. There’s many out there who have done all that has been asked of them, after firm acceptance of the consequences.
How can we place their needs, literally in-front of one person — so one person can determine if “justice bears a countenance too sanguinary and cruel.”