As a candidate and civil rights law professor, President Barack Obama had spoken out about the need to reform the criminal-justice system, and clearly felt passionately about entrenched racial biases that resulted in people being treated unfairly by the courts based solely on the color of their skin. But in his crowded first term, his only foray into criminal justice was encouraging lawmakers to pass the Fair Sentencing Act, which he signed in 2010, to reduce the sentencing disparity between crack and powder cocaine. The disparity had the effect of punishing black drug offenders far more harshly than white ones, and was widely accepted to be outdated and unfair. (Obama’s clemency push is meant to correct a broad set of inequities in the criminal-justice system, not just those that are racial. Scrivner, who might benefit from the program, is white.)
When it came to using his only unfettered presidential power — to pardon felons and to reduce the sentences of prisoners — Obama was incredibly stingy in his first term. Vanita Gupta, deputy legal director of the American Civil Liberties Union, calls his record on mercy “abysmal.” He pardoned just 22 people — fewer than any modern president — and commuted the sentence of just one. An applicant for commutation like Scrivner had just a 1-in-5,000 chance of getting a reduced sentence with Obama in his first term — compared with a 1-in-100 chance under Presidents Reagan and Clinton, according to an analysis by ProPublica.
According to former and current administration officials, the fault for this lay mostly at the feet of the Office of the Pardon Attorney, a small corner of the Justice Department that sifts through thousands of pardon and commutation petitions each year. The pardon attorney, former military judge Ronald Rodgers, sends his recommendations of whether or not to grant the petitions to the Deputy Attorney General’s office, which then sends them on to the White House. The pardon attorney was recommending that the president deny nearly every single petition for a pardon or a reduced sentence, according to one senior official in the Obama administration.
But even though the president was almost certainly aware that the pardon process was deeply flawed, he took no steps to fix it. In 2009, Obama’s top lawyer, Gregory Craig, drafted a proposal urging a more aggressive use of the presidential pardon and clemency power, and calling the current system broken. One of Craig’s recommendations was to take the pardon attorney’s office out of the Department of Justice entirely, so that the people vetting clemency petitions were not so close to the system that put prisoners away in the first place.
“I was of the belief that the current system for making pardon decisions was broken and it needed to be reformed,” Craig said. His suggested reforms weren’t implemented, and he left the White House that year.
Craig wasn’t the only one to raise concerns to the White House early in Obama’s tenure. A staffer in the pardon attorney’s office, Sam Morison, wrote to a West Wing attorney to blow the whistle on his own office shortly after Attorney General Eric Holder gave a speech in February 2009 saying America is a “nation of cowards” on race. The attorney general mentioned entrenched racial injustices in the criminal-justice system. In the spirit of that concern, Morison wrote, “I must bring to your attention the near total collapse of the pardon advisory process.” He added that the pardon attorney’s dysfunction disproportionately affected minorities, whosepardon petitions were far less likely to be approved than whites’ over the years. Morison said the desire to reject petitions was so institutionally ingrained at the office that the president would never effectively be able to use his pardon power. No one replied to his memo.
The spirit of criminal-justice reform that interested the president had not trickled down to the pardon attorney. “There’s all this bipartisan reform going on, but you have these people down there in their own little insular world and they just don’t get it,” one senior administration official said of the pardon attorney’s office.
Near the end of his first term, Obama expressed his frustration with how few positive clemency petitions were landing on his desk. He began meeting with White House Counsel Kathy Ruemmler and Holder to discuss how his pardon power could fit into his larger strategy of making the criminal-justice system fairer. (In mid-December, Holder followed up with a memo to Obama laying out his priorities for a second term in which he endorsed a more robust use of the pardon power as part of a broader criminal-justice reform initiative.) Over a series of five or 10 discussions, the president said he wanted more recommendations for pardons and commutations getting to his desk. The president complained that the pardon attorney’s office favored petitions from wealthy and connected people, who had good lawyers and knew how to game the system. The typical felon recommended for clemency by the pardon attorney was a hunter who wanted a pardon so that he could apply for a hunting license.
Meanwhile, the pardon attorney became the target of a scathing Justice Department Inspector General report in December 2012, furthering the suspicion in the White House that the culture of the office was to reflexively deny petitions. Rodgers fell “substantially short of the high standards to be expected of Department of Justice employees and of the duty he owed to the President of the United States,” the Inspector General said. The report concluded that Rodgers misrepresented the facts to the White House of a commutation request from Clarence Aaron, a man serving a triple life sentence for facilitating a drug deal. The pardon attorney’s advice to the president to deny the grant, even though the prosecutor and judge supported it, “was colored by his concern … that the White House might grant Aaron clemency presently and his desire that this not happen,” the report concluded.
A year later, and after prodding from the Obama administration, the pardon attorney’s office finally sent the president recommendations to commute the sentences of eight people serving life or near-life sentences for drug crimes, including Aaron. None of the eight people was politically connected or wealthy, traits that the president wants to avoid rewarding with his clemency power. A year after Rodgers was taken to task for denying Aaron’s petition, Obama freed Aaron and seven others from prison. According to Ruemmler, the commutations were a message that the president was serious about wanting to see more clemency recommendations.
Even with these eight, Obama has granted just 10 commutations out of 10,000 requests. He granted 52 of the 1,600 pardon requests that made it to his desk. But a new initiative he directed the Justice Department to begin this spring might increase that number by hundreds, or even thousands.