The criminal code of every country partakes so much of necessary severity that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel." --Alexander Hamilton, Federalist 74 The fundamental problem with President Clinton's use of his clemency power has been obscured by the uproar over his decision to free 11 Puerto Rican nationalists who were once involved in crimes related to a campaign of terrorist bombings. The problem is not that Clinton has been too generous in showing mercy. It is that (putting aside the Puerto Rican nationalists) he has been too stingy--stingier than any other President in the past century, perhaps in history. Clinton has done nothing for the legions of nonviolent federal prisoners who are serving long sentences, who pose no threat to society, and who have sought clemency by the hundreds, if not thousands. Many seem far more deserving of mercy than the Puerto Rican nationalists. While the Puerto Ricans certainly had long prison terms, they were deemed dangerous by the FBI, and they never expressed the kind of remorse that is usually considered a prerequisite for clemency. Before releasing the 11 in September, Clinton had awarded early release to a grand total of three federal prisoners. He had also pardoned 108 federal convicts who had finished serving their time. This total of 111 clemency grants (before the Puerto Rican nationalists)--out of 3,229 requests--amounted to a ratio of 1-to-29, or 3.4 percent. That's the lowest percentage granted by any President since the government started keeping clemency statistics in 1900. This track record lends force to the charges that Clinton's sudden sympathy for the Puerto Rican nationalists was spurred by intense lobbying by Hispanic officials and activists, more than by considerations of justice, mercy, or the national good. But whatever Clinton's motives in this case, what's striking about his record is his virtual abandonment of a power that the Framers of the Constitution intended as a vital tool for "mitigation of the rigor of the law," in Alexander Hamilton's words. The people who lose out are obscure federal prisoners who have strong claims to clemency because their guilt is tempered by mitigating circumstances, or because they received excessive sentences, or because they rehabilitated themselves. Among them are many small-time drug offenders (a majority of them black or Hispanic) who are serving unconscionably long federal prison terms for nonviolent crimes. The withering away of executive clemency as a safety valve for the excesses of the criminal justice system did not start with Clinton. It reflects the political potency that war-on-crime and war-on-drugs rhetoric has had for some 20 years. "The decline started in the Reagan Administration, and it has accelerated in recent years," says Margaret C. Love, an advocate of more-generous use of the pardon power. She served as the Justice Department's pardon attorney from 1990-97, evaluating applications for clemency and making recommendations to the President. Justice Department statistics support Love's assessment that the clemency power has gradually atrophied. The percentage of clemency applications granted--which was as high as 40.9 percent under President Kennedy--has declined from 31.2 percent under President Ford to 21.6 percent under President Carter, 12.6 percent under President Reagan, 4.2 percent under President Bush, and 3.4 percent under President Clinton, as of March 31. In addition, recent Presidents have been even more reluctant to grant prisoners early release than to pardon criminals who have served their time. Even as the federal prison population has soared, the number of prisoners released early has dropped from 29 under Carter to 13 under Reagan, three under Bush, and three under Clinton (plus the Puerto Rican nationalists). In addition, the number of clemency petitions pending and not acted upon has grown steadily on Clinton's watch, from 1,039 in 1996 to more than 1,500 today. To an applicant marking time in federal prison, the effect is the same as a denial. When Clinton has used his clemency power, it has sometimes smacked more of symbolism than of mercy to a human being. Earlier this year, for example, Clinton awarded the first posthumous pardon in history, to Henry O.
Flipper, the first black Army officer, who had been convicted in 1882 of conduct unbecoming an officer. The Army had admitted long ago that the Flipper prosecution was racially motivated, and the pardon was long overdue. But had Flipper been alive and serving a five-year mandatory minimum sentence for, say, giving one-fifth of an ounce of crack cocaine to a friend, he would have gotten no help from this President. Indeed, Clinton's neglect of his pardon power apparently derives from the same determination to out-tough the Republicans on crime that explains his support for draconian mandatory minimum prison sentences for nonviolent drug offenders. Clinton has occasionally made symbolic gestures on this front, too--as when he asserted four years ago that "something is terribly wrong" when young black men are imprisoned in such disproportionate numbers on drug charges. True. But whenever proposals have been made to ease the federal sentencing regime that has helped produce huge racial disparities in the federal prison population, Clinton and his Justice Department have shot them down. The result is that federal prisons are crammed with people serving what even hard-line criminal justice experts consider to be grossly excessive terms. They cannot be paroled, because Congress has abolished parole. That's why "the need for clemency has never been greater," says Love, who resigned in 1997 after 20 years at the Justice Department, and is now a fellow in law and government at American University. "To make the pardon power effectively unavailable through disuse or misuse is a terrible waste of what should be the President's most beneficent power." The cost is measured both in blighted lives and in the waste of tax money on needless incarceration of people who, if freed before prison life took too heavy a toll on them, could become productive citizens. On the brighter side, Love is hopeful that the flap over the Puerto Rican nationalists may prompt the next President to "take a very serious look at the pardon power" and restore it to its former role.
(According to documents made public by Congress, Love, who declines to discuss specific cases, recommended in 1996 that Clinton deny clemency to the Puerto Rican nationalists.) Until the past two decades, Presidents granted clemency in large numbers of routine cases on the basis of detailed reviews and recommendations from Justice Department lawyers. This not only helped salvage convicts who had turned their lives around, it also gave Presidents a measure of insulation from attacks on the handful of clemency grants in politically charged cases. Still, some grants of clemency have spawned great political controversy.
President Carter took political heat for commuting the sentences of another group of Puerto Rican nationalists convicted of crimes of terrorism. President Ford was severely hurt in the 1976 election by his pardon of President Nixon. And President Bush was bitterly assailed for his Christmas Eve 1992 pardons of six Iran-Contra defendants, including former Defense Secretary Caspar Weinberger. A less controversial, but more instructive, episode was President Kennedy's use of the clemency power to release more than 100 drug offenders serving unduly long prison terms under mandatory sentencing statutes. That was before Democrats became saddled with the soft-on-crime label. It was before Michael S. Dukakis was skewered (first by Al Gore, then by George Bush) on the "Willie Horton" issue. And it was before Bill Clinton (it appears) vowed not to let that happen to him. Now it has happened to him, in a way. The irony is that so smart a politician is so widely suspected of seeking political advantage through an action that looks like a political liability for both him and his wife, the Senate candidate. Is there anything that Clinton can do at this point to look less like a politician, and more like a courageous statesman, in his stewardship of the pardon power? There is. Following President Kennedy's example, he can push his Justice Department to comb its files and identify a few hundred prisoners who have strong claims to clemency, and then set them free. All of them. Stuart Taylor Jr.