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Rosenzweig: Presidential-pardon process is a legal turkey

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ANALYSIS/OPINION:

In keeping with tradition, President Obama has given a full and unconditional presidential pardon to a turkey. For those keeping score, that brings Mr. Obama's pardon tally to 26 — four turkeys and 22 humans.

If you think the latter number sounds low, you're right. Twenty-two acts of executive clemency (in the form of pardons and commutations) is far and away the smallest number of pardons offered by a president in modern times. George W. Bush issued 200 pardons during his eight years in office. Bill Clinton extended 459 (some of them quite ill-advisedly). In his single term, Jimmy Carter granted clemency to 566 people. The modern-day record-holder, though, is Franklin D. Roosevelt, who pardoned more than 3,600 people.

Mr. Obama's comparatively low number of pardons is all the more stunning, given the radical growth in federal prosecutions. There are about 200,000 federal prisoners today — a group that boasts a huge "alumni" population, as well. Yet not a single individual has been released from prison by virtue of a presidential pardon in this administration. (All 22 pardons have gone to people who had already served their term of imprisonment.) By contrast, in the early 1900s, when fewer than 10,000 federal prisoners were incarcerated nationwide, pardons averaged roughly 300 each year.

What accounts for Mr. Obama's stinginess with pardons?

The most likely answer lies in the institutionalization of the process. In our early history, presidents (and their attorneys general) considered pardons individually, often on their own time. Today, presidents wait for a recommendation from the Office of the Pardon Attorney, in the Department of Justice, before they act on a petition for clemency.

Putting the recommendation power in the Department of Justice has institutionalized the hostility of prosecutors to the exercise of the pardon power. No prosecutor, after all, is likely to acknowledge his own error. When the president exercised the pardon power directly, pardon applications were examined with a more finely tuned sense of political judgment and a generalized appreciation for the American body politic and its sensitivity to criminal law. He could, in effect, show mercy and do justice when the law was overly harsh.

This older conception is in line with what the Founders of our nation saw as the proper office of the pardon power. As Chief Justice John Marshall said: "A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws."

What is needed is a solution that honors the Founders' expectation of personal justice and political reality. We need to create a system that can reflect the sentiments of its presidential sponsor, while affording the president a realistic and unbiased opportunity to review cases and make an informed decision. The current institutional solution — locating the pardon attorney in the Department of Justice and staffing it with a career prosecutor — does not meet this need.

To reinvigorate the pardon power and return it to its original function, the administration should:

Re-create a pardon-reviewing authority outside of the Department of Justice, as part of the Executive Office of the President.

Staff the new Pardon Office with personnel from a range of disciplines, including prosecutors, sociologists, psychologists, historians, and even, yes, defense lawyers.

Doing either, or both, of these things would solve most of the systematic problems that plague the current way in which the pardon process is implemented. Moving the office outside of the Department of Justice would restore the pardon function to its traditional status as an exercise of pure presidential authority. Including staff who are not exclusively career prosecutors would bring a more balanced perspective to the decision making and would eliminate the natural and understandable institutional tendency of prosecutors to be confident in the rectitude of their own judgment.

And, substantively, we would see justice done. After all, people as well as holiday turkeys stand in need of grace.

Paul Rosenzweig is a visiting fellow in the Heritage Foundation's Center for Legal and Judicial Studies and founder of Red Branch Consulting PLLC.

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