Clemency

Trump's Pardon of Sheriff Joe Arpaio Is a Reminder that Presidential Pardon Powers Should Be Used Far More Often

Presidential pardons were a depressing crapshoot long before Arpaio received one.

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Photo credit: Gary He/Polaris/Newscom

I believe in the goodness and necessity of executive clemency so strongly that I took a two-year break from journalism to work at an organization that advocates explicitly for commuting overly long sentences. There's no universal agreement on what constitutes an "overly long" sentence, but I used to tell friends and peers that—in a very, very, very small way—I helped get drug dealers out of prison early.

It's not just drug sentences that are too long. There is a saying among conservative prison reformers that "prison should be for people we're afraid of, not people we're mad at." The precise boundaries of those categories may be debatable. (Attorney General Jeff Sessions, for example, insists drug offenders are inherently violent, a view I strongly disagree with.) Maricopa County Sheriff Joe Arpaio, who was pardoned by President Trump last week in a controversial move that circumvented the conventional pardoning process, is in the latter category. Many people fear what Joe Arpaio did as sheriff, what he stands for, and the voters who empowered him to do those things for so long. But Joe Arpaio, private citizen, is not a threat to public safety.

So I am not too upset that he will not be caged, just as I am not upset when drug offenders are not caged, because I think our collective eagerness to rescind life and liberty is illiberal and dehumanizing, not to mention hideously expensive and a massive obstacle to personal reform.

The problem with executive pardon power as it has been used in the last few decades is not the benefits occasionally derived by the Joe Arpaios of the world, but that it so seldom benefits anyone else. Executive clemency is a thinly disguised lottery that mostly disappoints the vast majority of people who play it. Presidential pardons should be handed out far more often and far more consistently to a far wider group of people. (I would say the same of commutations, but legislative reforms would help far more people.)

To be clear, I believe President Trump's decision to pardon Arpaio was a disgrace due to Arpaio's lack of contrition and Trump's blatant disregard for precedent. But if the price of radically expanding clemency were that sometimes someone like Joe Arpaio got pardoned too, it would be worth it.

Trump's pardon of Arpaio did not follow the contours of what we typically think of as a "good" pardon.

Those usually start with the Office of the Pardon Attorney (OPA), which acts as a conduit between clemency applicants and the upper echelons of the Department of Justice. The OPA encourages men and women convicted in the federal court system, or under the Uniform Code of Military Justice, to apply for the president's forgiveness starting five years after they have finished the entirety of their sentence; or, in the event they served no time, five years after the date of conviction.

That is not what happened with Sheriff Arpaio. He was convicted in July. He would not have been sentenced until October. Prior to his pardon, he seemed most likely to receive some form of supervised release, such as probation, rather than prison time. "Generally," says the OPA website, "no petition should be submitted by a person who is on probation, parole, or supervised release."

Arpaio, as it happens, was pardoned without ever submitting a petition. This is extremely unusual.

The rules have been bent in other ways, of course. Marc Rich, an oil trader indicted for doing business with Iran during the 1979-1981 hostage crisis, fled the U.S. in 1984 to avoid arrest and a trial. President Bill Clinton pardoned him in 2001 without Rich ever returning to stand justice.

Understandably, plenty of people were upset about this. Democrats. Republicans. Justice Department staffers. It was a disgrace, and the actors who made the Rich pardon happen—a list that includes then-Deputy Attorney General Eric Holder and Pres. Clinton himself—admitted later it was a bad idea.

Trump pardoning Arpaio when, how, and why he did is more akin to Clinton's pardon of Rich than any relief granted by Presidents George W. Bush or Barack Obama or even George H.W. Bush. Arpaio may not have given Trump as much money as the Rich family gave Clintonland and the Democratic National Committee, but he gave him electoral support.

And like Rich, Arpaio thumbed his nose at the justice system, which Nick Gillespie documents in detail here. Any attorney or advocate whose worked on pardon applications will tell you that contrition is an essential ingredient to having a snowball's chance in hell. (If you want more examples of Arpaio's bumptiously disrespectful behavior toward the judge presiding over his case, read this thread by the judge's former clerk.)

And yet, most pardon applicants, even those who go through the normal process and show contrition, do not have even a snowball's chance. Between the beginning of Dubya's presidency and the end of Obama's, the DOJ received 5,893 pardon applications. Those two presidents granted 401 combined, or just shy of seven percent. The rest were either denied or ignored—"closed without presidential action."

While we're talking about Bush and Obama, let's zoom right quick down memory lane and look at how long their pardon recipients had to wait. You can see all the presidential pardon and commutation recipients here, dating back to Pres. Richard Nixon, who exercised his clemency powers like someone who never donned the veil of ignorance.

Bush's two most generous pardons came seven years after the applicants were convicted. Most of the people he pardoned waited much longer. One man received a pardon in 2005 for a bootlegging conviction dating back to 1959. There's no obvious rhyme or reason to Bush's list, though little people getting lucky and big people nudging things along probably explains most of it. (The actual reasoning that an administration uses for each case is pre-deliberative information and thus exempt from public records requests.)

Even when Bush did meddle in the Justice System, he didn't go nearly as far as Trump. After White House staffer Scooter Libby was convicted for his role leaking Valerie Plame's identity and lost on appeal, Bush commuted his 30 month prison sentence, but didn't pardon him for his crimes or rescind the court-ordered fines and period of supervised release. Libby forfeited his law license in 2008 and didn't get it restored until 2016, and remains unpardoned. I'm not suggesting you weep for the man, but it does show that even for the wealthy, criminal penalties aren't always limited to what's handed down at sentencing.

Those unintended penalties are supposedly why pardons exist: so that every few years the president can pluck a handful of random people out of a living hell and give them his (and one day her) blessing to hold occupational licenses, vote, and own firearms without being labeled a felon in possession.

Let's return to Arpaio getting a pardon despite showing zero remorse while most people feel obligated to grovel and many don't get so much as a formal brush-off: Arpaio didn't deserve it by the historical standard. He didn't wait long enough, didn't say sorry, didn't cop to being bad nor promise to be good. ("You should bear in mind," the OPA tells potential applicants, "that a presidential pardon is ordinarily a sign of forgiveness and is granted in recognition of the applicant's acceptance of responsibility for the crime and established good conduct for a significant period of time after conviction or release from confinement.")

Also: Trump's reasoning—that Arpaio was treated unfairly—was absolute bullshit. As Gillespie noted, Arpaio was treated as fairly as one could hope to be by the federal criminal justice system. He had private attorneys and remained free during his trial. He remains free right now.

Lastly, let's look at what makes the pardon process so awful even when it's not being used to benefit political allies.

The Office of the Pardon Attorney is very small. It receives a large volume of applications, each of which requires a ream of supporting paperwork, ranging from documents related to all of the applicant's convictions and arrests, to contrite personal statements and documented claims of conviction-related hardships, to letters of support. "You must list all delinquent credit obligations," says the OPA, as well as any bankruptcies and unpaid tax obligations.

Does having filed for bankruptcy hurt your chances? Improve them? OPA won't tell you, and I doubt the agency has a hard and fast rule. What if your hardships are not exceptional? How does one go about making him or herself out to be exceptionally screwed by the collateral consequences of a criminal conviction? What an awful contest.

Every aspect of the application must be verified, and the burden of accuracy is on the applicant. "The failure to fully and accurately complete the application form may be construed as a falsification of the petition," says OPA, which adds that "the knowing and willful falsification of a document submitted to the government may subject you to criminal punishment." I don't think anyone has ever been tried for leaving something out of a pardon application, but isn't nice to know the government reserves that right?

The applications are first read by bureaucrats, then by other bureaucrats, who might pass them along to political appointees, who may put them in front of White House staff, who perhaps will put a bug in the president's ear. At each step, an anonymous person with a lot of power has to ask him or herself, "Will kicking this up the chain of command expose me or my boss to criticism or blowback?" If the answer remotely resembles a yes, then the applicant's answer is generally "no." There are exceptions, of course, but you can name then on your fingers: Rich, Chelsea Manning, Arpaio, Libby. But we should probably dispense with the idea that a presidential pardon is anything more than a carefully orchestrated attempt on the government's behalf to appear inoffensively human. (The exceptions being Obama's clemency initiative and Jimmy Carter's pardoning of men who refused to fight in Vietnam.)

There is even a small cottage industry of legal workers who will "help" federally convicted individuals put together a petition. Attorneys will generally do so for somewhere around $10,000, even though the instructions for applying are posted on the DOJ website and say nothing about the necessity of hiring a lawyer. These attorneys will cite their experience in government or their pardon success rate, but they can't say for sure they'll get you out, only that they'll take your money and use their letterhead. Further down the legal food chain, paralegals will tell you they also know how to put together a perfect pardon application, and will do it for slightly less than the attorneys. Then there are current and former prisoners who got lucky or know someone who did. They will transfer that luck to you, for money.

The people who receive pardons—like the people who receive commutations—are generally no more exceptional or deserving of them than many of the people who get rejected. They are simply the ones who, for whatever reason, didn't get rejected. The result is a system that is fundamentally unfair.

The pardon process should be more than a crapshoot that benefits the lucky and the well-connected.

One way to do that is to pardon lots of people regularly, something former Pardon Attorney Margaret Love advised in a brief for the American Constitution Society. "When pardons are issued generously and at regular intervals, as they were prior to 1980, the power appears more a function of government than a perk of office, and thus more legitimate in the public eye."

Love also suggests we should think more broadly about who deserves pardoning, when, and why:

An individual who has fully satisfied the court-imposed penalty, accepted responsibility for the offense and made a reasonable effort to reconcile with those injured by it, and lived productively for a period of time in the community, should ordinarily be considered favorably for pardon. Humble status and modest means should not be disqualifying. Indeed, reserving post-sentence pardons for those who have performed heroic acts or rendered extraordinary service to their communities may send a message that forgiveness is not a final closure to which ordinary people may aspire. At the same time, the gravity of the offense or notoriety of the offender may suggest the desirability of imposing a longer waiting period before favorable action, in consideration of the symbolic effect of a pardon. A specific need for a pardon (e.g., to qualify for a particular job or license, obtain a security clearance, or avoid deportation) may be a relevant factor in considering whether to grant clemency, but a simple desire for forgiveness should be sufficient.

P.S. Ruckman, Jr., with whom long-time Reason readers are likely familiar, has also published suggestions for transforming pardon power from a crapshoot into a mundane rehabilitative tool.

A sound first step would be moving the Office of the Pardon Attorney out of the fundamentally punitive confines of the Justice Department. He also suggests that pardon attorney terms should begin and end with those of the president, which would allow for the OPA to reflect the views of a new president and force new presidents to select someone whose philosophy on mercy mirrors their own. Ruckman's list goes on, and includes thoughtful ideas such as creating a clemency commission, tracking data on clemency recipients post-receipt of either pardon or commutation, and requiring the attorney general to publish why pardons and commutations were granted, as was done in the early 20th century.

But any initiative to reform the process would need to come from the White House. With Trump flouting the conventions that already exist to pardon people like Arpaio, I don't see that happening any time soon.

Disclosure: I served as director of communications at Families Against Mandatory Minimums, a sentencing reform organization that advocates for legislative reforms and increased use of executive clemency, from 2013 to 2015.