An Unpardonable Failure (Update)

Reading Sari Horwitz’s post at The WaPo, my first concern was that Deputy Attorney General Sally Yates didn’t get hurt patting herself on the back.

“Everyone has killed themselves here to get the final recommendations to the president,” Deputy Attorney General Sally Q. Yates said in an interview. “We were in overdrive. We were determined to live up to our commitment. It was 24-7 over the Christmas break.”

U.S. Pardon Attorney Robert A. Zauzmer has not taken a day off since Yates brought him on in February 2016 to sift through the backlog of thousands of petitions. From her home in Atlanta, Yates said she reviewed hundreds of petitions during the holidays.

How horrifying that she spent her holidays reviewing hundreds of petitions instead of drinking egg nog. Maybe she would have had time to go caroling if the DoJ hadn’t screwed the former Pardon Attorney, Deborah Leff, who quit in frustration as she was denied the ability to do her job.

The president doesn’t have the power to unilaterally do a lot of things, even if he pulled out his pen and phone to do them anyway, but he has the absolute power to “grant reprieves and pardons” under Article II, Section 2, clause 1 of the Constitution. Bill Clinton pardoned fugitive financier Mark Rich. There was no stopping him.

But President Obama? One might walk away from the WaPo story with the impression that he’s nailed this one,

Justice Department officials have completed their review of more than 16,000 clemency petitions filed by federal prisoners over the past two years and sent their last recommendations to President Obama, who is set to grant hundreds more commutations to nonviolent drug offenders during his final days in office.

That’s on top of the 1,176 prisoners who have already received commutations. Heckuva job, Barack? Not exactly. The commutations given have been conditional, meaning that they weren’t released, but had their sentences reduced and will remain in prison for a while. Then there are strings attached, from drug rehab to a decade of supervised release. Bear in mind, a “condition” of the Obama DoJ drug clemency program was that prisoners have served at least ten years before applying. Some might suggest that the first decade for some weed more than covered it.

But note that number of more than 16,000 petitions? These are the petitions of people who met the already stringent criteria for consideration. And a “few hundred more,” limited to “non-violent drug offenders,” is, how to say this nicely, tepid. Bear in mind, this was the president who was elected to accomplish changes to a criminal justice system that had grown into a Draconian monster under generations of tough and tougher on crime.

President Obama’s first two years in office were marked by his failure to grant a single commutation or pardon. Not one. When he finally granted nine pardons after 682 days in office (compare to William Henry Harrison, who only served for 32 days before he died, but granted 3 pardons), it was a big deal. When Obama finally got around to some commutations, eight crack cocaine convicts, Putin cut loose 20,000 prisoners.

So is it time to send a congratulatory telegram to the president for his grand exercise of the pardon power?  Even the New York Times can’t stomach this one.

For more than four decades, Sala Udin lived under the shadow of a federal firearms conviction, the result of a search by the Kentucky police who found an unloaded shotgun in the trunk of his car in 1970.

Mr. Udin, who had been a Freedom Rider during the civil rights era, carried the gun for protection as he drove around the South. After eight months in prison, he lived an exemplary life, serving on the Pittsburgh City Council and playing a role in the city’s redevelopment. But when President Obama visited Pittsburgh in 2009, Mr. Udin wasn’t allowed to meet him: His criminal record prevented such an encounter.

Last month, Mr. Obama issued Mr. Udin a pardon — one of just 148 pardons the president has granted during his two terms in office. It is an abysmally low number for a president who has stressed his commitment to second chances and the importance of helping convicted people re-enter society.

“Abysmal” is an excellent word. “Pathetic” is good too, as is “anemic.” And note that Udin, while certainly worthy of a presidential pardon, has labored under a conviction for more than four decades. It’s not that it’s a bad thing, but it’s a little late to make a difference.

There are huge swathes of people for whom pardons are deserved and lives could be fundamentally altered. The pages of SJ and many others are replete with the system’s failure to protect the innocent, to document the abuse of the system to convict the innocent. You know where you will find them next week? In their prison cells. In their dump apartments because they can’t get jobs to pay rent on decent places to live. Under bridges because local laws preclude their being anywhere near “decent” folk and their children.

For almost everyone with a criminal conviction, a pardon is the only path back to full citizenship. Throughout most of American history, presidents granted them liberally. Mr. Obama is a different story. He took office with more than 800 pending pardon requests. During his presidency he received almost 3,400 more. He denied more than 1,600 and closed 500 others without taking any action. So he will leave office with roughly 2,000 pending requests on his desk — an embarrassing record that isn’t excused by the similarly poor showings of other recent presidents.

Maybe “abysmal” isn’t strong enough. But then, the president is a busy guy, what with writing law review articles and giving 60 Minutes interviews, so he didn’t have the time to give petitions an adequate look. That’s why he turned to the DoJ, with its 113,000 employees, to give him a hand.

In both cases, the trouble rests with the people acting as the gatekeepers of mercy. The clemency process is run out of the Justice Department, where career prosecutors have little interest in reversing the work of their colleagues. It’s a recipe for intransigence, dysfunction and injustice on a mass scale.

Perhaps Sally Yates would be able to hold that gate open a bit longer if she hadn’t hurt her arm patting herself on the back for doing such a great job it.

Update: President Obama has, in fulfillment of the promise of a few hundred more commutations, announced that:

Today, 273 individuals learned that the President has given them a second chance.  With today’s 209 grants of commutation, the President has now commuted the sentences of 1,385 individuals — the most grants of commutation issued by any President in this nation’s history.  President Obama’s 1,385 commutation grants — which includes 504 life sentences — is also more than the total number of commutations issued by the past 12 presidents combined.  And with today’s 64 pardons, the President has now granted a total of 212 pardons.

Today, 209 commutation recipients — including 109 individuals who had believed they would live out their remaining days in prison — learned that they will be rejoining their families and loved ones, and 64 pardon recipients learned that their past convictions have been forgiven.  These 273 individuals learned that our nation is a forgiving nation, where hard work and a commitment to rehabilitation can lead to a second chance, and where wrongs from the past will not deprive an individual of the opportunity to move forward.  Today, 273 individuals — like President Obama’s 1,324 clemency recipients before them — learned that our President has found them deserving of a second chance.

Most notably, the president commuted the sentence of Chelsea Manning, who is scheduled for release on May 17th. Then again, it was Obama’s DoJ that put then-Bradley Manning in the can for 35 years in the first place.

17 thoughts on “An Unpardonable Failure (Update)

  1. Richard Kopf


    Fun facts on the Obama pardon legacy from someone who has seen it up close:

    His administration kept Hamedah Hasan in prison year after year despite the pleas of every sane and quasi-sane (me) person in the world. First sentenced to a mandatory term of life in prison by me for facilitating a large crack conspiracy, this 20 something black woman, with two children and a third on the way at the time of sentencing and no criminal history, simply missed the mercy-machine. Shit happens I suppose even in this administration. For more on Ms. Hasan,

    In contrast, the last clemency petition I was recently asked to comment on from a Yates’ munchkin dealt with a guy who by any measure is and will always remain a serious danger to the community. The request for clemency would have been laughable had it not been so scary that theses nitwits were actually considering it.

    Obama’s (and Holder’s) legacy on clemency is shameful. In the last throes of his administration, it took no courage or political capital by Brother Barack to do the right thing after being AWOL for the first six years. I am sorry, however, that Yates, et al, had to work so hard in an effort to shine shit.

    Rich Kopf

  2. Jeff Gamso

    What distinguishes Obama from so many of his predecessors on criminal justice (whatever “justice” is) reform is that he talks a good game. Most of them (at least recently) didn’t even do that.

    Problem is that his interest was far more in the rhetoric right than in getting into the weeds and actually doing something.

    1. SHG Post author

      Gee, you mean he was better than Shrub? That’s epitaph material. But if the guy who’s actually supposed to do it can’t past pretending to do it, who do we expect will?

      1. Jeff Gamso

        I don’t actually expect anyone will. At least, not until there’s a true groundswell of support for doing it. You know, like when 85% of the electorate – from all across the country – says that this is the issue most important to them.

        I’m not holding my breath.

        1. SHG Post author

          I do. Most people of reasonable intelligence and good will can agree to end misery provided it doesn’t take away from their interests, even when it’s not their foremost priority. Say, cops not killing unarmed people without reason. If only serious issues weren’t diluted by controversy and selfishness, and if only we had someone willing to use their bully pulpit for more than pretending they were doing something, it could happen.

  3. John Barleycorn

    Ironic that you picked Obama’s last Tuesday in office to print this post seeing as how, according to that newspaper you read everyday, Obama spends a considerable portion of his Tuesdays personally approving who ‘Merica should kill with hellfire missles droped from drones in the near future.

    That newspaper you read everyday day forgot to ask, but my sources tell me that pardons and clemency review were reserved for the first Friday following the harvest moon for fifteen minutes after lunch until about a three months ago when he committed to spending twenty minutes a month on them on Saturday mornings just before making his scheduled calls with college chancellors across the nation to duscuss his daughters future plans.

    1. SHG Post author

      He’s got to get them in before Friday. After that, they go in the kids whose fathers aren’t president pile. It’s a big pile.

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