Bill Clinton's Parting Pardon Party
Alschuler, Albert W., Journal of Criminal Law and Criminology
This Article will appear in revised form as part of a book tentatively titled The Decline and Fall of the Pardon Power: A History. A brief description of the larger project may be helpful.
The first part of the larger study will examine the near disappearance of executive clemency and how it happened. Between 1860 and 1900, Presidents granted 49% of the applications for clemency they received, (1) and as recently as 1961 to 1980, they granted 28%. (2) In the last complete presidential administration, however, George W. Bush granted only 1.7% of the applications he received. (3) Barack Obama, who is now in the nineteenth month of his presidency, has yet to approve a clemency grant. More than 4,500 petitions await action in the White House or the Department of Justice. (4)
The Justice Department has published rules for executive clemency, which it follows in determining which applications to process and in making recommendations to the White House. These rules do not limit the President's constitutionally based power to grant pardons or commutations as he sees fit. (5) Under the Justice Department's rules, pardons are reserved for ex-offenders who apply after they have been released from custody for five years. The principal function of a pardon is to restore an offender's civil rights after he has demonstrated his good citizenship. A prisoner who is still in custody may seek only a commutation of his sentence. (6) For inmates without White House connections, a commutation is the only "get out of prison" type of clemency available.
In the administrations of Presidents Reagan, Bush, Clinton, and Bush, only one-half of one percent of all petitions for commutation were approved. The average number of commutations per year was three. In most years of these administrations, the President did not find even one federal prisoner worthy of early release. George W. Bush approved one-tenth of one percent of the commutation petitions he received. (7)
After 1935, executive clemency was largely confined to pardons to restore civil rights. By that date, parole had eclipsed clemency as a means of releasing prisoners. Congress's abolition of parole in 1984, (8) however, did not revive clemency. Rather, it left the United States for the first time in its history without a functioning mechanism for releasing prisoners prior to the expiration of their sentences. Partly as a result, the federal prison population is now six times what it was then. (9)
The second part of the larger study will examine how presidents whose campaigns played on the public's fear of crime and who closed the door to clemency for applicants without connections opened it for their friends. As the official route to clemency all but closed, a back-door route opened. In the three administrations that preceded Obama's, applicants with political connections and/or high-priced, well-connected lawyers bypassed the Department of Justice, disregarded its regulations, and obtained clemency on grounds not available to others. This Article tells part of that story.
II. BILL CLINTON AND CRIMINAL JUSTICE
In 1862, following the "largest massacre of whites by Indians in American history," (10) a military tribunal sentenced 303 Sioux Indians to death. Officials on the scene advised President Lincoln that, unless all of the Indians were executed, "private revenge would on all this border take the place of official judgment." (11) Lincoln, unintimidated, reviewed the record of each case and commuted the sentences of all but thirty-eight of the condemned. After Lincoln won re-election in 1864, a Minnesota senator remarked that if he had executed more Indians he would have carried the state by a larger majority. Lincoln replied, "I could not afford to hang men for votes." (12)
In 1992, Governor Bill Clinton of Arkansas conspicuously interrupted his presidential campaign in order to be in Arkansas when a seriously brain-damaged murderer was executed. …