Bureaucrat Torpedoes Plea for a Presidential Pardon

Posted on May 14, 2012

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By Dafna Linzer, ProPublica

(Page 2)

Though it was Aaron’s first criminal offense, he received the stiffest sentence of anyone involved in the conspiracy. Only Aaron and the drug supplier, who is scheduled to be released in 2014, remain behind bars.

Aaron’s case gained national attention in 1999 when he appeared in “Snitch,” a PBS “Frontline” documentary about prisoners serving long sentences after refusing to turn informant. The film helped him garner support in Congress and from civil rights organizations. 

In January 2001, Aaron submitted an application for a commutation. He faced a high hurdle. 

Between 1980 and 2010, requests for commutations rose sharply, reflecting lengthier sentences and the elimination of paroles for federal inmates, while the number of successful applicants plummeted. 

“The reason that some people should have their sentences commuted is because they have been over-sentenced,” said Mark Osler, a former federal prosecutor who runs the country’s only law school clinic for commutations. 

Under Ronald Reagan and Bill Clinton, both two-term presidents, one applicant in 100 was successful. Under Bush, approvals fell to barely better than one in 1,000. So far, Obama has commuted the sentences of fewer than one in 5,000. The only person freed by Obama had support from one of the president’s closest congressional allies, Illinois Democratic Sen. Dick Durbin.

Aaron’s high profile boosted his chances, as did his track records as a model inmate. He wrote in an amended petition that he was deeply ashamed of his actions and felt “terrible remorse. I also regret that I further compounded my mistake by not admitting to my participation at trial.” 

But his petition had a critical weakness. 

U.S. Attorney David York, the top prosecutor for the Southern District of Alabama, opposed reducing Aaron’s sentence. 

In 2004, then-Pardon Attorney Roger Adams recommended the White House deny Aaron’s request. Adams said in a recent interview that he wrote the recommendation with some ambivalence.

“Anyone who looks at Clarence Aaron will see a really, really tough case of a young guy in prison for the rest of his life,” Adams said.

His report went to the White House, where it sat for three years among a growing stack of recommendations.

A Cursory Review

In 2008, Rodgers, a former military judge and federal prosecutor, took over the pardon office and changed the way it handled commutation applications.

Under Rodgers’s predecessors, staff lawyers reviewed each case, gathered pre-sentence and Bureau of Prisons progress reports and wrote recommendations based on their research. 

“Some reports were shorter, just a paragraph or two,” said Margaret Love, who served as a pardon attorney from 1990 to 1997. “But there was always enough of a report that you could get an idea of what the basic facts and issues were.” 

For the first 2 1/2 years under Rodgers, however, most petitions were handled by paralegals, not staff attorneys, and recommended for denial in batches, said Samuel Morison, a lawyer who spent more than a decade in the pardons office before leaving in 2010 to work for the Defense Department. He said Rodgers instituted the change when there was a significant backlog.

“The office types up a list of names, along with basic sentencing and offense information for each prisoner, and sends the list to the White House with a note that says the attached cases are meritless and should be denied,” Morison said. 

At the end of 2010, Rodgers reverted to the old system. He now assigns a lawyer, along with paralegals, to review commutation requests, the Justice Department said. 

Still, in the past four years, applications from more than 7,000 prisoners have been denied—22 times as many as were rejected during Reagan’s eight-year presidency. 

The Justice Department insists the accelerated process did not mean applicants got short shrift. 

Rodgers “personally reviewed every application for commutation of sentence before recommending their disposition,” a Justice Department official said. 

The dwindling numbers have caught the eye of Supreme Court Justice Anthony M. Kennedy, who has complained publicly about the lack of commutations. “A people confident in its laws and institutions should not be ashamed of mercy,” Kennedy said in a 2003 speech to the American Bar Association. He urged members to tell president and governors, “this young man has not served his full sentence but he has served long enough. Give him what only you can give him. Give him another chance. Give him a priceless gift. Give him liberty.”

But applicants who most need the pardon office’s support have increasingly hit a wall, advocates say. 

“We have never found a political opposition to the idea or concept of commutations,” said Mary Price, vice president of Families Against Mandatory Minimums, a group that pushes for judicial discretion in sentencing and, in certain cases, shortening of terms. “The chief impediment lies in the pardon attorney’s office.”   

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