Office of the Pardon Attorney

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The Office of the Pardon Attorney, part of the United States Department of Justice, assists the president of the United States in his exercise of executive clemency as authorized by Article II, Section 2, of the US Constitution. The office is headed by the pardon attorney, with the current incumbent being Elizabeth G. Oyer, appointed by President Joe Biden in 2022. It operates under the general oversight of the deputy attorney general and in consultation with the attorney general or their delegate to review and process clemency applications.

Contents

Under the Constitution, the president's clemency power extends only to federal criminal offenses. All requests for executive clemency for federal offenses are directed to the Office of the Pardon Attorney for investigation and review. The pardon attorney prepares the department's recommendation to the president for final disposition of each application.

Since 1853, the responsibility of advising the president on pardon petitions has been assigned to the attorney general. Over time, various offices have supported this role in managing the clemency process, including the Office of the Pardon Clerk (1865–1870), the Office of the Attorney in Charge of Pardons (1891–1894). In 1894, the current Office of the Pardon Attorney was established. [1]

Executive clemency may take several forms, including pardon, conditional pardon, commutation of sentence, conditional commutation of sentence, remission of fine or restitution, respite, reprieve and amnesty. A pardon may be posthumous. The Office of the Pardon Attorney currently has a staff that includes the deputy pardon attorney, an executive officer, four staff attorneys, and its clerical staff and paralegals who assist in the review of petitions. [2]

The power of clemency is "one of the most unlimited powers bestowed on the president by the Constitution." [3]

History

Since 1789 various offices within the federal government have provided the president with administrative support for the exercise of executive clemency. A presidential order in 1865 formally delegated this responsibility to the Department of Justice. The office's current name was adopted in 1894. [4]

Historically, the norm was for presidents to rely on the pardon attorney process before making pardons (they are not required to do so). [5] During the first presidency of Donald Trump, Trump circumvented this process in his pardons. [5]

Pardoning standards

When the president proposes to exercise his or her executive clemency, the case is directed to the Office of the Pardon Attorney for review.

There are five standards for someone to be considered to be pardoned. Generally, the petitioner must be in a good standing during their sentence and must wait a period of at least five years before applying to pardon. [6] However, this five-year wait period can be waived.

The first standard is how the person's conduct, character, and reputation have been during conviction. This means that the individuals conducted themselves as responsible and knowledgeable people who are aware of their crime and are ready to return to normal society. They must have the potential to create a better society by achieving employment, providing for themselves and loved ones, as well as keeping a clean criminal background. [6] A very recent example of this would be when President Trump commuted 63-year-old Alice Marie Johnson's sentence after the case was brought up by celebrity Kim Kardashian. The White House described their reasoning for the pardon by stating "while this administration will always be very tough on crime, it believes that those who have paid their debt to society and worked hard to better themselves while in prison deserve a second chance". [7]

Second is the seriousness and when the offense occurred. When the offense is years in the past and did not affect many people, the chance to achieve a pardon is much greater than if the offense was very recent and a high crime. Things that must be considered include how the victims would deal with the pardon, and how it will set a precedent for future similar crimes. [6] During his presidency, President Barack Obama granted clemency 1,715 times. [8] Most of these were for nonviolent drug offenders, in an effort to get non-serious offenders out of prison and to reverse the negative outcomes from the war on drugs.

Third is the individual's acceptance of responsibility and self-awareness of how serious their actions were. The individual's behavior, if they are creating excuses or reasons why they committed the crime, will greatly lower the chances of pardon. If the individual desires forgiveness and portrays complete responsibility for their actions, then the chances are much higher. [6] Generally, every person who is considered for a pardon exudes these behaviors.

Fourth is the legal disabilities the individual suffered from the conviction. Someone like a lawyer or doctor may have lost their licenses as a result of their conviction. This may grant reason to consider a pardon. Though pardons for this type of relief are minimal and very rare, they will not be put at a higher priority over an otherwise deserving person who has a desire for forgiveness. [6] An example of this would be when President Andrew Johnson pardoned Samuel Mudd in 1869. Mudd was imprisoned because he treated John Wilkes Booth's leg after Booth assassinated President Lincoln in 1865. [9] This crime was not very serious, considering Mudd claimed he was unaware of Booth's actions at the time and he was doing what his profession entailed.

Lastly, referrals and recommendations from people in powerful positions like politicians, attorneys, judges, and even victims are looked over carefully to decide if an individual is worthy of a pardon. [6] A controversial pardon was President Bill Clinton pardoning his half-brother, Roger Clinton Jr., for cocaine possession and trafficking convictions. [10]

Posthumous pardons

Posthumous pardons are rare because it is generally Department of Justice policy to not accept requests for non-living persons. [11] This is due to the limited resources and personnel at the Department of Justice, and cases involving living persons take precedence over those who are deceased. The same procedure and reasoning are applied to clemency applications for federal misdemeanors, giving precedent to cases involving federal felony convictions. This structure is designed to allow the DOJ to devote its time to those who will receive the greatest benefit from Federal clemency. Only presidents Clinton, George W. Bush, and Trump have granted posthumous pardons. [11]

Steps and process

The Office of the Pardon Attorney handles all and every clemency related correspondence and issue, including petitions and applications. [4] This involves several steps. The office receives and reviews clemency correspondences, [2] and investigates applications along with the files sent with them to make more valid the petitioner's plea for pardoning. [2] It then prepares a recommendation for each application, and sends it to the president for his final decision as to whether or not to grant a pardon. [2]

For 125 years, the key adviser to the president on clemency has been the Department of Justice's Office of the Pardon Attorney (PARDON) which normally reviews all requests for pardons. [3]

Based on government data, lawyers, advocates for criminal justice advocates, and former officials from both the White House and pardon, President Trump regularly bypassed the pardon attorney, according to a 2020 investigation by The Washington Post . Unlike previous presidents, Trump has granted clemency to "well-connected offenders who had not filed petitions with the pardon office or did not meet its requirements." [3]

Related Research Articles

A pardon is a government decision to allow a person to be relieved of some or all of the legal consequences resulting from a criminal conviction. A pardon may be granted before or after conviction for the crime, depending on the laws of the jurisdiction.

Bill Clinton was criticized for some of his presidential pardons and acts of executive clemency. Pardoning or commuting sentences is a power granted by the Constitution to sitting U.S. presidents. Scholars describe two different models of the pardons process. In the 'agency model' of pardons the process is driven by nonpolitical legal experts in the Department of Justice. In contrast, Clinton followed the 'presidential model', viewing the pardon power as a convenient resource that could be used to advance specific policy goals.

In the common law legal system, an expungement or expunction proceeding, is a type of lawsuit in which an individual who has been arrested for or convicted of a crime seeks that the records of that earlier process be sealed or destroyed, making the records nonexistent or unavailable to the general public. If successful, the records are said to be "expunged". Black's Law Dictionary defines "expungement of record" as the "Process by which record of criminal conviction is destroyed or sealed from the state or Federal repository." While expungement deals with an underlying criminal record, it is a civil action in which the subject is the petitioner or plaintiff asking a court to declare that the records be expunged.

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A respite is a delay in the imposition of sentence but in no way modifies a sentence or addresses questions of due process, guilt or innocence.

The Scooter Libby clemency controversy arose when U.S. President George W. Bush commuted the prison sentence of Scooter Libby, the former Chief of Staff to Bush's vice president, Dick Cheney, on July 2, 2007. It resulted in a hearing, "The Use and Misuse of Presidential Clemency Power for Executive Branch Officials", held July 11, 2007, by the full Committee on the Judiciary of the U.S. House of Representatives. The hearing was intended to "explore the grave questions that arise when the Presidential clemency power is used to erase criminal penalties for high-ranking executive branch employees whose offenses relate to their work for the President", as well as to assess the consequences of the perjury and obstruction of justice of which vice-presidential Chief of Staff Lewis Libby was convicted March 6, 2007.

The Oklahoma Pardon and Parole Board is the parole board of the state of Oklahoma. The board was created by an amendment to the Oklahoma Constitution in 1944. The Board has the authority to empower the Governor of Oklahoma to grant pardons, paroles, and commutations to people convicted of offenses against the state of Oklahoma.

The Minnesota Board of Pardons is the pardon board of the state of Minnesota. The Board of Pardons consists of the Governor of Minnesota, the chief justice of the Minnesota Supreme Court, and Minnesota Attorney General. The board has to power to grant executive clemency and commutation of sentences of any person convicted of any offense against the laws of the state, subject to certain regulations.

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Expungement in the United States is a process which varies across jurisdictions. Many states allow for criminal records to be sealed or expunged, although laws vary by state. Some states do not permit expungement, or allow expungement under very limited circumstances. In general, once sealed or expunged, all records of an arrest and of any subsequent court proceedings are removed from the public record, and the individual may legally deny or fail to acknowledge ever having been arrested for or charged with any crime which has been expunged.

The Texas Board of Pardons and Paroles (BPP) is a state agency that makes parole and clemency decisions for inmates in Texas prisons. It is headquartered in Austin, Texas.

Federal pardons in the United States are granted only by the U.S. president, pursuant to their authority under the U.S. Constitution to grant "reprieves and pardons for offenses against the United States". Pardons extend to all federal criminal offenses, except in cases of impeachment, and entail various forms of clemency, including commuting or postponing a sentence, remitting a fine or restitution, delaying the imposition of a punishment, and providing amnesty to an entire group or class of individuals.

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Alice Marie Johnson is an American criminal justice reform advocate and former federal prisoner. She was convicted in 1996 for her involvement in a Memphis cocaine trafficking organization and sentenced to life imprisonment. In June 2018, after serving 21 years in prison, she was released from the Federal Correctional Institution, Aliceville, after President Donald Trump granted her clemency, thereby commuting her sentence, effective immediately.

Brittany K. Barnett is an American attorney and criminal justice reform advocate. Through the organization Buried Alive, which she co-founded with Sharanda Jones and Corey Jacobs, she came to national attention when she and her co-counsel, MiAngel Cody, litigated the release of 17 people in 90 days. Her organization has received funding and endorsement from television personality Kim Kardashian. Barnett is also the founder of Girls Embracing Mothers, a non-profit organization that provides support for girls with mothers in prison.

References

  1. ↑ "Pardon Records". National Archives. June 10, 2021. Retrieved December 2, 2024.
  2. 1 2 3 4 "Office of the Pardon Attorney". United States Department of Justice. March 2, 2014. Retrieved October 25, 2018.
  3. 1 2 3 Reinhard, Beth; Gearan, Anne (February 3, 2020). "Most Trump Clemency Grants Bypass Justice Dept. and Go to Well-Connected Offenders". The Washington Post. Retrieved February 22, 2020.
  4. 1 2 "Frequently Asked Questions: Pardon". United States Department of Justice. January 12, 2015. Retrieved March 4, 2018.
  5. 1 2 Gluck, Matthew; Goldsmith, Jack (2021). "Donald Trump and the Clemency Process". Federal Sentencing Reporter. 33 (5): 297–300. doi: 10.1525/fsr.2021.33.5.297 . ISSN   1053-9867.
  6. 1 2 3 4 5 6 "Standards for Consideration of Clemency Petitioners". United States Department of Justice. January 12, 2015. Retrieved September 28, 2018.
  7. ↑ Baker, Peter (June 6, 2018). "Alice Marie Johnson Is Granted Clemency by Trump After Push by Kim Kardashian West". The New York Times . Retrieved October 22, 2018.
  8. ↑ Horwitz, Sari (January 19, 2017). "Obama grants final 330 commutations to nonviolent drug offenders". The Washington Post. Retrieved October 23, 2018.
  9. ↑ Valentine, Vikki. "Clearing Dr. Mudd's Name". NPR. Archived from the original on October 23, 2018. Retrieved October 22, 2018.
  10. ↑ "10 famous people who received presidential pardons". National Constitution Center. Retrieved October 22, 2018.
  11. 1 2 "Policies". United States Department of Justice. January 12, 2015. Retrieved October 25, 2018.

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