Articles Clemency and Presidential Administration of Criminal Law
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\\jciprod01\productn\N\NYU\90-3\NYU302.txt unknown Seq: 1 21-MAY-15 9:19 ARTICLES CLEMENCY AND PRESIDENTIAL ADMINISTRATION OF CRIMINAL LAW RACHEL E. BARKOW* President Obama’s use of enforcement discretion to achieve important domestic policy initiatives—including in the field of criminal law—has sparked a vigorous debate about where the President’s duty under the Take Care Clause ends and legit- imate enforcement discretion begins. But even with broad power to set enforcement charging policies, the President controls only the discretion of his or her agents at the front end to achieve policy goals. What about enforcement decisions already made, either by the President’s own agents or by actors in previous administrations, with which the President disagrees? The Framers anticipated this issue in the con- text of criminal law and vested the President with broad and explicit back-end con- trol through the constitutional pardon power. This clemency power is a powerful tool for the President to oversee federal criminal administration. But while central- ized authority over enforcement discretion at the front end has grown, the clemency power finds itself falling into desuetude. This Article explores the fall of the clemency power and argues for its resurrection as a critical mechanism for the President to assert control over the executive branch in criminal cases. While clemency has typically been referred to as an exercise of mercy and even analogized to religious forgiveness, it also serves a more structur- ally important role in the American constitutional order that has been largely over- looked: It is a critical mechanism for the President to control the executive department in criminal matters. Those in favor of strong presidential administra- tion or advocates of a unitary executive theory should encourage a more robust employment of the clemency power. But even critics of strong presidential powers or unitary executive theory in other contexts should embrace clemency as a mecha- nism of control in the criminal sphere. Whatever the merits of other unitary execu- tive or presidential administration claims involving military power or oversight over administrative agencies, clemency stands on different footing. It is explicitly and unambiguously grounded in the Constitution’s text, and it has an established historical pedigree. It is also a crucial checking mechanism given the landscape of criminal justice today. The current environment of expansive federal criminal laws and aggressive charging by federal prosecutors has produced a criminal justice * Copyright © 2015 by Rachel E. Barkow, Segal Family Professor of Regulatory Law and Policy and Faculty Director, Center on the Administration of Criminal Law, New York University School of Law. Thanks to Aimee Carlisle, Kadeem Cooper, Heather Gregorio, Steve Marcus, Neal Perlman, and Sam Zeitlin for excellent research assistance. I acknowl- edge with gratitude the financial support of the Filomen D’Agostino and Max E. Greenberg Faculty Research Fund at NYU. Thanks to Brad Clark, Adam Cox, Michael Farbiarz, John Ferejohn, Dan Hulsebosch, Erin Murphy, Mark Osler, Rick Pildes, Daphna Renan, Adam Samaha, Steve Schulhofer, and Kate Stith for comments. I am also grateful for helpful comments and questions from participants at the NYU Faculty Workshop, the Temple Law Faculty Colloquium, the Columbia Law School Colloquium on Courts and the Legal Process, and the Criminal Justice Roundtable at Yale Law School. 802 \\jciprod01\productn\N\NYU\90-3\NYU302.txt unknown Seq: 2 21-MAY-15 9:19 June 2015] CLEMENCY AND PRESIDENTIAL ADMINISTRATION 803 system of unprecedented size and scope. Federal prisons are overcrowded and expensive, and hundreds of thousands of individuals are hindered from reentering society because of a federal record. Clemency is a key tool for addressing poor enforcement decisions and injustices in this system, as well as checking disparities in how different U.S. Attorneys enforce the law. INTRODUCTION ................................................. 803 R I. THE CONSTITUTIONAL PARDON POWER ................ 809 R A. The Use of the Clemency Power .................... 813 R B. Analyzing the Decline ............................... 818 R 1. Politics .......................................... 819 R 2. Structural Bias at DOJ .......................... 824 R II. CLEMENCY, THE UNITARY EXECUTIVE, AND PRESIDENTIAL ADMINISTRATION ........................ 829 R A. Clemency’s Structural Function ..................... 829 R B. Clemency’s Relationship to Unitary Executive and Presidential Administration Theories ................ 840 R III. THE MODERN RELEVANCE OF CLEMENCY .............. 851 R A. Fewer Mechanisms for Controlling Prosecutors ..... 851 R B. Increasing Danger of Overreach .................... 856 R C. The Need for Relief from Collateral Consequences ....................................... 866 R CONCLUSION ................................................... 869 R INTRODUCTION Several of President Obama’s most important domestic policy ini- tiatives involve decisions not to enforce federal law.1 In 2012, the Obama Administration announced that it would not enforce removal provisions in the Immigration and Nationality Act against “certain young people who were brought to this country as children and know only this country as home.”2 In 2014, President Obama went even fur- ther on the immigration front by issuing an executive directive that 1 See, e.g., Robert J. Delahunty & John C. Yoo, Dream On: The Obama Administration’s Nonenforcement of Immigration Laws, the DREAM Act, and the Take Care Clause, 91 TEX. L. REV. 781, 783 (2013) (describing the President’s decision to exercise discretion not to enforce statutes as “[t]he Obama Administration’s preferred tool for domestic policy”). 2 Memorandum from Janet Napolitano, Sec’y, U.S. Dep’t of Homeland Sec., to David V. Aguilar, Acting Comm’r, U.S. Customs & Border Prot., Alejandro Mayorkas, Dir., U.S. Citizenship & Immigration Servs. & John Morton, Dir., U.S. Immigration & Customs Enforcement 1 (June 15, 2012) [hereinafter Napolitano Memo], available at http:// www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came- to-us-as-children.pdf. Those eligible are generally students who have been in the United States for at least five years, arrived in the United States before the age of sixteen, are not currently over the age of thirty, and have not been convicted of any crimes other than minor misdemeanors. Id. \\jciprod01\productn\N\NYU\90-3\NYU302.txt unknown Seq: 3 21-MAY-15 9:19 804 NEW YORK UNIVERSITY LAW REVIEW [Vol. 90:802 would allow up to five million people to avoid deportation.3 President Obama also turned to his enforcement discretion to address the back- lash from those who discovered they could not keep their health insur- ance policies for failure to meet minimal requirements under the Affordable Care Act (ACA). President Obama campaigned for the law with a pledge that under the ACA, “[i]f you like your plan, you can keep it.”4 To keep that promise, he told insurance companies he would refuse to enforce those provisions of the law that would require cancellation of the policies, at least through 2014. Enforcement discretion has been equally important in criminal policymaking in the Obama Administration. In the wake of state legis- lation in Washington and Colorado to legalize marijuana, the Depart- ment of Justice (DOJ) announced that the federal government would focus its enforcement actions to prevent specific harms.5 The DOJ suggested that if a case fell outside those areas, it would not be prose- cuted even if it violated the letter of the Controlled Substances Act.6 The DOJ provided similar guidance about what cases would be prose- cuted federally in those states that have legalized medical marijuana.7 3 Michael D. Shear, Obama Moves Ahead on Immigration, N.Y. TIMES, Nov. 21, 2014, at A1. 4 The pledge is conditional on insurers informing consumers of what is not covered by their plans and making clear that they have the option to buy a new plan with federal subsidies on health insurance exchanges. See Sheryl Gay Stolberg & Michael D. Shear, Inside the Race to Rescue a Health Site, and Obama, N.Y. TIMES, Dec. 1, 2013, at A1. The Treasury Department has also announced that it will delay enforcement of the part of the law that penalizes employers for failing to offer health insurance to their employees. Shared Responsibility for Employers Regarding Health Coverage, 79 Fed. Reg. 8543, 8569 (Feb. 12, 2014). 5 See Memorandum from James M. Cole, Deputy Att’y Gen. of the United States, to All U.S. Att’ys 1–2 (Aug. 29, 2013) [hereinafter Cole 2013 Memo], available at http://www. justice.gov/iso/opa/resources/3052013829132756857467.pdf (listing the federal government’s enforcement priorities with respect to marijuana as “[p]reventing the distribution of marijuana to minors; [p]reventing revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels; [p]reventing the diversion of marijuana” to states where it has not been legalized; making sure marijuana activity is not a cover for trafficking in other drugs; “[p]reventing violence;” preventing the growth, use, or possession of marijuana on federal lands; and preventing drugged driving). 6 Id. at 2 (“Outside of these enforcement priorities, the federal government has traditionally relied on states and local enforcement agencies to address marijuana activity through enforcement of their own narcotics laws.”). 7 See