May 21, 2013
Shades of Mercy: Presidential Forgiveness Heavily Favors Whites
Posted on Dec 4, 2011
By Dafna Linzer & Jennifer LaFleur, ProPublica
On Sept. 16, 2008, Lee, the associate White House counsel, asked about two pending applicants whose attorneys had contacted the White House.
“As noted previously, we are hoping to get as many clemency recommendations as possible over the next few months,” Lee wrote. “To the extent that these two petitions may be ‘easy’ cases (and I defer to you on that question), it would be helpful if these and other ‘easy’ cases are given priority.”
Rodgers forwarded the e-mail to a staff attorney with a warning to ignore anything in Lee’s note that “could be construed as armchair quarterbacking.”
With no more than 30 recommendations from the pardons office by the fall, the White House pushed to reverse two denials, Lee and others said in interviews. Then it did something Bush had vowed to avoid, taking up a pardon application from a felon whose case had not been reviewed by the pardon attorney.
Toussie had not waited the requisite five years, but one of his attorneys, Bradford Berenson, had been an associate White House counsel during Bush’s first term. Berenson took Toussie’s case directly to the White House—and it worked. On Dec. 23, 2008, Toussie’s name was on the final list of pardons granted by Bush.
That action sparked fury among hundreds of New Yorkers who were involved at the time in a civil litigation suit against the Toussie family over a second real estate project.
After eight years of caution on pardons, Bush had stumbled. On Dec. 24, 2008—four weeks before Obama’s inauguration—Bush became the first president to announce withdrawal of a pardon.
Bush left office having denied more than twice as many applicants as Clinton. Richard Nixon pardoned more people in a single year than Bush pardoned during two full terms.
In the final hour of his presidency, Bush confided to Obama his deep frustrations with the pardon process. In the limousine ride the two men shared up Pennsylvania Avenue on Inauguration Day, Bush offered his successor this piece of advice: “Announce a pardon policy early on and stick to it.”
Bush wrote in his memoir that he had been besieged by last-minute pardon requests from politically connected people who did not go through the pardons office.
“At first I was frustrated,” he wrote. “Then I was disgusted. I came to see massive injustice in the system. If you had connections to the President, you could insert your case into the last-minute frenzy. Otherwise, you had to wait for the Justice Department to conduct a review and make a recommendation.”
Bush resolved to rebuff the personal requests.
The incoming administration needed little prodding on this issue. Obama’s top legal advisers already were convinced that the pardon system put the poor at a disadvantage. Gregory Craig, who would become Obama’s White House counsel, said he began raising the possibility of reform during the transition.
Craig said pardons were “clearly much more available to people with economic means than those without.”
Working with then-Deputy Attorney General David Ogden, Craig developed a plan to take the vetting of pardon applicants away from career prosecutors.
“I couldn’t completely understand the standards being applied by the pardons office,” Ogden said in an interview. “They seemed very subjective in some cases, and I thought the standards should come from the president, not from the pardons office.”
Craig said he believes pardon applications should be sifted by an independent commission of former judges, prosecutors, defense attorneys and representatives of faith-based groups. The commission would make recommendations directly to the president.
Officials envisioned a process in which the president would announce decisions quarterly instead of the traditional grants at Thanksgiving and Christmas. A team of lawyers also suggested that the president explain his decisions, to build confidence in the process and encourage people to apply.
Officials were struck by comparisons between the federal system and those of the states. Depending on the state, pardons can be granted by governors, legislatures or state pardon boards. During the period in which Bush pardoned 189 people, Pennsylvania pardoned more than 1,000.
Several states have adopted the practice of explaining their decisions. Virginia issues public notices praising specific aspects of an applicant’s rehabilitation.
Obama officials believed changes in the pardon system could be made by executive order. But two years later, pardon reform efforts were dead. The effort faded away as its key proponents, Ogden and Craig, left the administration.
“We just never got there before I left,” said Ogden, who resigned in 2010.
The pardons office continues to function much as it did under Bush, with Obama pardoning only applicants recommended by the office. Obama has denied 1,019 pardon requests, more than Clinton denied during his two terms.
Post researcher Julie Tate and ProPublica researchers Liz Day and Robin Resaut contributed to this report.
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