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Transparency and Comparative Executive Clemency: Global Lessons for Pardon Reform in the United States

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Transparency and Comparative Executive Clemency: Global Lessons for Pardon Reform in the United States University of Michigan Journal of Law Reform Volume 49 2016 Transparency and Comparative Executive Clemency: Global Lessons for Pardon Reform in the United States Andrew Novak George Mason University Follow this and additional works at: https://repository.law.umich.edu/mjlr Part of the Common Law Commons, Comparative and Foreign Law Commons, Criminal Law Commons, and the Law Enforcement and Corrections Commons Recommended Citation Andrew Novak, Transparency and Comparative Executive Clemency: Global Lessons for Pardon Reform in the United States, 49 U. MICH. J. L. REFORM 817 (2016). Available at: https://repository.law.umich.edu/mjlr/vol49/iss4/3 This Article is brought to you for free and open access by the University of Michigan Journal of Law Reform at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in University of Michigan Journal of Law Reform by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. TRANSPARENCY AND COMPARATIVE EXECUTIVE CLEMENCY: GLOBAL LESSONS FOR PARDON REFORM IN THE UNITED STATES Andrew Novak* INTRODUCTION Federal law enforcement and prosecution in the United States expanded greatly over the course of the twentieth century, but pres- idential clemency, one of the few explicit constitutional checks on prosecutorial and police powers, has fallen into disuse over the last thirty years.1 No category of cases has suffered the decline of clem- ency more than death penalty cases; capital clemency at the federal level has all but vanished.2 Today, the federal criminal justice sys- tem has grown in size and scope due to expansive criminal laws, overcrowded and expensive systems of incarceration, and the debilitating collateral consequences of conviction that hinder an in- dividual’s reintegration into society long after a sentence is served.3 * Andrew Novak, Adjunct Professor of Criminology, Law, and Society, George Mason University. Ph.D. candidate, School of Law, Middlesex University London. 1. See Rachel E. Barkow, Clemency and Presidential Administration of Criminal Law, 90 N.Y.U. L. REV. 802, 807–08, 815–17 (2015). Presidential clemency has declined considerably over the course of American history. Between 1860 and 1900, nearly half of all applications for presidential pardons were granted, though this was in a time before widespread pardon and parole procedures and the development of special procedures for juveniles and persons with mental illness. Kathleen Dean Moore, Mr. President, Misusing this Pardon Power is Un- pardonable, 13 FED. SENT’G REP. 159, 159 (2000-2001). From Franklin Roosevelt’s presidency through Jimmy Carter’s, more than 200 people each year received presidential clemency. This number fell to only about 200 each term during Ronald Reagan’s presidency and only 77 in four years for George W. Bush. Id. at 159. This decline is especially precipitous with federal death penalty cases, declining to the point of insignificance, especially with the aboli- tion of the mandatory death penalty. See AUSTIN SARAT, MERCY ON TRIAL: WHAT IT MEANS TO STOP AN EXECUTION 35 (2005); Dwight Aarons, Adjudicating Claims of Innocence for the Capitally Condemned in Tennesssee: Embracing a Truth Forum, 76 TENN. L. REV. 511, 546 (2009); Michael Heise, The Death of Death Row Clemency and the Evolving Politics of Unequal Grace, 66 ALA. L. REV. 951 (2015). 2. See Heise, supra note 1. From 1977 to 2009, 245 prisoners on death row received clemency, which included the mass commutation of 167 commutations and four pardons by then-Governor George Ryan of Illinois in 2003. Aarons, supra note 1, at 546. Only one of those 280 grants of clemency was by the President of the United States for a prisoner on federal death row: David Ronald Chandler in 2001 by then-President Bill Clinton for con- cerns about innocence. Clemency, DEATH PENALTY INFO. CENTER, http://www.deathpenalty info.org/clemency#List (last visited Oct. 14, 2015). Today, 62 persons are on federal death row. The U.S. federal government has only executed three people since 1963. Federal Death Penalty, DEATH PENALTY INFO. CENTER, http://www.deathpenaltyinfo.org/federal-death-pen alty (last visted Dec. 12, 2015). 3. Barkow, supra note 1, at 808–09. 817 818 University of Michigan Journal of Law Reform [VOL. 49:4 The United States is not alone. The crisis of incarceration is a global one.4 Increasing reliance on the president’s pardon power is not a substitute for legislative reform, but it holds some promise to mitigate the worst injustices. A legal system with a well-functioning parole or probation system and judicial discretion to determine ap- propriate sentences may make clemency superfluous, or at least rare.5 In the United States, however, opportunities for federal pa- role have declined and constraints on judicial discretion have increased.6 The secretive and opaque nature of federal clemency in the United States has contributed to perceptions that the pardon power may be misused.7 Although the usual federal clemency process is governed by Article II of the Constitution and by federal regula- tions,8 the President and his administrative counterparts in the Department of Justice have no obligation to provide reasons for a denial of clemency, to seek the views of other stakeholders, includ- ing victims, or to reveal aspects of the deliberative process.9 The secrecy of the clemency process underscores a fundamental tension 4. See Roy Walmsley, Global Incarceration and Prison Trends, 3 F. ON CRIME & SOC. 65, 70–71 (2003) (discussing prison growth rates of varying degrees throughout the world, while also noting some less statistically significant prison population decline in certain countries). 5. Prior to the establishment of modern parole, remissions, and probation systems in the early twentieth century, conditional pardons served to shorten punishment and ensure law-abiding behavior, but these required the executive branch to monitor persons receiving conditional pardons to ensure compliance with the conditions. Harold J. Krent, Conditioning the President’s Pardon Power, 89 CAL. L. REV. 1665, 1677–78 (2001). Parole, remissions, and probation systems institutionalized the shortening of sentences for rehabilitative purposes, ensuring application of consistent criteria and less erratic decision-making. Id. at 1678. But see Margaret Colgate Love, Fear of Forgiving: Rule and Discretion in the Theory and Practice of Pardon- ing, 13 FED. SENT’G REP. 125, 125–26 (2000–2001) (“Even after pardon’s role in the justice system was largely taken over in the 1930s by parole and probation, and obviated by procedu- ral improvements in the legal system, the practice of pardoning in the federal system remained vital through the 1970s.”). 6. See Frank O. Bowman, The Failure of the Federal Sentencing System: A Structural Analysis, 105 COLUM. L. REV. 1315, 1333–34, 1336–37 (2005) (describing the curtailment of judicial sentencing discretion and the rise of prosecutorial discretion); David Robinson, The Decline and Potential Collapse of Federal Guideline Sentencing, 74 WASH. U.L.Q. 881, 882 n.5, 890 (1996) (describing restrictions on parole and sentence reductions). 7. See Margaret Colgate Love, Justice Department Administration of the President’s Pardon Power: A Case Study in Institutional Conflict of Interest, 47 U. TOL. L. REV. (forthcoming 2016) (“On the rare occasions when the public becomes aware of the way the pardon process oper- ates, it confirms persistent myths about pardoning that are a long way from [Alexander] Hamilton’s vision of the pardon power as an integral part of the constitutional scheme.”). 8. U.S. CONST. art. II, § 2; 28 C.F.R. §§ 0.35, 0.36. 9. Daniel T. Kobil, Should Clemency Decisions Be Subject to a Reasons Requirement?, 13 FED. SENT’G REP. 151, 151–52 (2000–2001) (discussing the failure to provide reasons). See also Cathleen Burnett, The Failed Failsafe: The Politics of Executive Clemency, 8 TEX. J. ON C.L. & C.R. 191, 203 (2003) (noting that there is “no constitutional right to clemency” as such and that federal courts have refused to require that clemency decisions be made in accordance with minimal due process standards). SUMMER 2016] Global Lessons For Pardon Reform 819 of the clemency power: is a pardon designed to be a rare and unan- ticipated “act of grace,” an other-worldly charismatic power that strikes like a lightning bolt? Or is it a routine bureaucratic decision subject to constitutional due process and principles of administra- tive law, predictable and reliant on explicit criteria?10 Although the first conception of the clemency power has historical resonance, the clemency decision-making process would benefit from applying constitutional due process and equal protection principles to clem- ency decisions and applying transparent and predictable administrative criteria. This in turn may help restore public confi- dence in federal clemency. The word “clemency” is an umbrella term encompassing the four traditional forms of executive mercy at common law: pardons, re- prieves, commutations of sentence, and remissions of fines and forfeitures. At common law, the sovereign had unlimited discretion to replace one form of punishment with a lesser one or none at all. A pardon is the full cancellation of a punishment, either freely or conditionally. A reprieve is a temporary delay or suspension of punishment, while a commutation is substitution of a greater sen- tence with a lesser one.11 Because the pardon
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