Shockingly, the pardon attorney misrepresented the prosecutor and judge’s views to the Bush White House so that it appeared that both thought a commutation was premature. But for those misstatements, says the White House attorney who handled Aaron’s application, Aaron’s sentence would have been commuted, and he would be free today. Instead, he is entering his third decade of his life sentence.
The Post-ProPublica story revealed other problems that help to explain why Presidents Bush and Obama have commuted a miserly twelve federal sentences over the past dozen years. For example, the OPA is not taking seriously its responsibility to fully review and give advice on the thousands of petitions it handles. A former OPA staffer recalled that most denial recommendations are simply long lists of applicants’ names, sent to the White House with no explanation of the most basic facts, such as the individuals’ crimes, rehabilitation, or special circumstances. One applicant we know, a nonviolent drug offender, applied for clemency three times, only to receive her third and final denial at her home, months after completing her 17-year sentence!
As revelatory as it was, the Post-ProPublica story also raised a number of important questions: How many other petitions for clemency were rejected because of the pardon attorney’s misrepresentations? Were those misrepresentations intentional? If President Bush’s administration was interested in finding deserving candidates for clemency, as at least two former White House attorneys have claimed on the record now, why didn’t the OPA send them any? Is the Obama Administration being similarly frustrated?
We already have some evidence to suggest the answer to that last question is yes. In 1995, Barbara Scrivner was sentenced to 30 years in federal prison for the minor and addiction-fueled part she played in her husband’s methamphetamine business. As with Clarence Aaron, her extraordinary rehabilitation helped her win support for a commutation from the prosecutors who tried her and the judge who sentenced her. Even her congressman weighed in on her behalf. It wasn’t enough. President Obama denied her commutation request last November. If someone with the support of the prosecutors, the judge, and a congressman can’t get a favorable recommendation from the OPA, who can?
Our Constitution gives the president exclusive power “to grant reprieves and pardons.” This awesome authority is important to our criminal justice system. Presidents can help to ensure that all individuals receive the justice they deserve and, in some cases, the mercy they have earned. But it is Congress that created and funds the OPA. If the OPA is withholding or misrepresenting critical information in a manner that frustrates the president’s constitutional responsibility, Congress must act. Taxpayers should not be forced to subsidize a government office that is abusing its power, nor should applicants for executive clemency face a deck that was stacked in secret. Congress must investigate.
Stewart is president of FAMM (Families Against Mandatory Minimums) and Robert L. Ehrlich is senior counsel at King & Spalding and a former Maryland Governor. While in office, Governor Ehrlich granted clemency to over 200 people.