Obama's unpardonable neglect of clemency

Robert Ehrlich, who knows something about the pardon process, questions President Obama's commitment to fairness

January 13, 2013|Robert L. Ehrlich Jr

One of the under-reported promises made by Congressman Ehrlich in the gubernatorial campaign of 2002 was to re-energize the pardon power in Maryland. My advisers thought it a bit loony to make the pledge, since the race promised to be close and there was little political advantage to be gained. After all, Gov. Parris Glendening had framed his clemency strategy with one brief line — "life means life" — to minimal criticism from his liberal base.

Still, I thought it an essential element of the job description to "do justice" through the exercise of this extraordinary power. Accordingly, my legal staff and I set about the business of reviewing clemency petitions from those Marylanders who had turned their lives around after a criminal conviction, a process that included input from victims, prosecutors and defense counsel. Final scorecard:

•444 requests for pardons received; 228 granted;

•72 commutation requests received; eight commutations (and six medical paroles) granted;

•The Sentencing Project ranked Maryland as one of the "13 most active pardon states" in the country.

This record has followed me in my post-public career, as I'm often asked to speak on the subject of post-conviction relief and clemency.

One fascinating aspect of the issue is the unpredictability surrounding its use. Partisan identification and philosophical predisposition are not accurate predictors of interest or activism. In fact, more Republican governors have shown an inclination to act than their Democratic colleagues.

Some cynics might dismiss this GOP activism with a "Nixon goes to China" indictment, as though more conservative Republican governors engage here to counterbalance more conservative inclinations on other criminal justice issues. Only one problem with the charge: There is very little to be gained (and an awful lot to be lost) by making clemency a priority issue. On the right, I found limited interest in and a sustained fear of a "Willie Horton" type scenario. On the left is a more inexplicable silence, since this type of activism goes to the heart of progressive social justice. Maybe it is simply an unwillingness to acknowledge Republican leadership on one of its issues, or maybe a similar sense of fear about charges of being "weak on crime."

In any event, my demonstrated credibility on the issue provides standing to critique the surprising lack of interest in clemency demonstrated by the former community organizer now occupying the White House.

The last week of 2012 saw the Office of the Inspector General torch the president's pardon attorney regarding the inappropriate withholding of information that could have led to the release of Clarence Aaron, an African-American college student who was given a life sentence for a first time, nonviolent drug offense in 1993.

The dysfunction described in the Aaron case is not new, nor should it be surprising. After all, the office is located within the same agency (Department of Justice) that prosecutes cases in the first place. Further, critical views of the pardon office's bureaucracy have been around for years.

In his book "Decision Points," former President George W. Bush recounts his frustration with the pardon process in the context of the Scooter Libby (Vice President Dick Cheney's chief of staff) obstruction of justice case. The president's advice to incoming President Barack Obama on Inauguration Day, 2009: "Announce a pardon policy early on, and stick to it." Alas, the Obama administration has shown no such interest in fixing a broken system.

Although slow to the dance, President Bush was correct in bemoaning his lost opportunity. 1980s-era sentencing laws have led to historic incarceration rates in the U.S. The ugly facts speak for themselves:

•In 1980, the U.S. incarceration rate was 150 per 100,000 citizens; today, it's 753;

•this rate of incarceration compares to 153 in Great Britain, 96 in France, and 90 in Germany;

•the U.S. now imprisons a higher percentage of its population than any other country in the world.

Hopefully, a second term Obama administration will do the right thing. Our federal system houses many thousands of nonviolent drug-related offenders. Each inmate costs the taxpayers in excess of $28,000 per year. I believe the vast majority are no threat to reoffend. Their cases should be reviewed within the context of a newly invigorated federal review process.

Only one man can effectuate this change. Mr. President, it's time to act.

Robert L. Ehrlich Jr.'s column appears Sundays. The former Maryland governor and member of Congress is a partner at the law firm King & Spalding and the author of "Turn this Car Around," a book about national politics. His email is ehrlichcolumn@gmail.com.

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