Despite slipstreaming the Joe Arpaio pardon into a Friday night news dump that includes a major natural disaster, it’s still engendered a fair amount of comment. I wanted to pull over into one of my own posts a couple of lengthy comments I wrote elsewhere, because otherwise I will never be able to find the information again.
1. What is all this confusing “clemency” and “commutation” and “pardon” stuff?
It so happens that the Dept. of Justice actually has an “Office of the Pardon Attorney” that, in Normal Times, people apply to as part of the process to get a presidential pardon or commutation of sentence for a federal crime conviction.
Here’s how the DoJ FAQ page distinguishes between these interlocked concepts.
In the federal system, commutation of sentence and pardon are different forms of executive clemency, which is a broad term that applies to the President’s constitutional power to exercise leniency toward persons who have committed federal crimes.
A commutation of sentence reduces a sentence, either totally or partially, that is then being served, but it does not change the fact of conviction, imply innocence, or remove civil disabilities that apply to the convicted person as a result of the criminal conviction. A commutation may include remission (release) of the financial obligations that are imposed as part of a sentence, such as payment of a fine or restitution. A remission applies only to the part of the financial obligation that has not already been paid. A commutation of sentence has no effect on a person’s immigration status and will not prevent removal or deportation from the United States. To be eligible to apply for commutation of sentence, a person must have reported to prison to begin serving his sentence and may not be challenging his conviction in the courts.
A pardon is an expression of the President’s forgiveness and ordinarily is granted in recognition of the applicant’s acceptance of responsibility for the crime and established good conduct for a significant period of time after conviction or completion of sentence. It does not signify innocence. It does, however, remove civil disabilities – e.g., restrictions on the right to vote, hold state or local office, or sit on a jury – imposed because of the conviction for which pardon is sought, and should lessen the stigma arising from the conviction. It may also be helpful in obtaining licenses, bonding, or employment. Under some – but not all – circumstances, a pardon will eliminate the legal basis for removal or deportation from the United States. Pursuant to the Rules Governing Petitions for Executive Clemency, which are available on this website, a person is not eligible to apply for a presidential pardon until a minimum of five years has elapsed since his release from any form of confinement imposed upon him as part of a sentence for his most recent criminal conviction, whether or not that is the conviction for which he is seeking the pardon.
That, of course, is when the President follows the process. The President can, as noted, issue a pardon however and whenever they want — (“The regulations contained in 28 CFR §§ 1.1 thru 1.11 are advisory only and for the internal guidance of Department of Justice personnel. They create no enforceable rights in persons applying for executive clemency, nor do they restrict the authority granted to the President under Article II, Section 2 of the Constitution.”) — though those exceptional cases have historically been of significant national import, such as Ford’s preemptive pardon of Nixon, or Carter’s blanket pardon of Viet Nam draft dodgers (imprisoned or not), and not political statements made to drive home some sort of point.
More explanations and trivia about pardons can be found here.
2. But Obama (and other Presidents) have pardoned people, too
The pardon power has always been controversial, and often the “just before I leave office” flock of pardons has often engendered a lot of anger when it’s focused on cronies and the like (Clinton’s were particularly controversial, rightly or wrongly).
Of those that Obama pardoned or commuted sentences for — well, those people had already been sentenced and, in fact, had often served time for their crimes. For the most part, they were also over-trumped drug charges – e.g., “All eight commutations were for nonviolent drug-related offenses; four of the beneficiaries received life sentences simply for possession and/or conspiracy to distribute.”
Obama also followed a standard process — applications for pardon (forgiveness of a crime) or clemency (ending of a sentence), that were reviewed by the Justice Dept., and recommendations of worthy cases provided to him, of which he selected some to grant.
Trump followed no process for the Arpaio pardon that we know of. He found a dog whistle cause for a long-time supporter that would let him thumb his nose at liberals and Hispanics and the judicial system. He “vetted” the decision at a rally of screaming supporters. And he executed it before any judicial sentence was actually pronounced.
No. Comparison.
3. But what about Chelsea Manning and Oscar Rivera? Those were political pardons by Obama, right?
Chelsea Manning– whose actions Obama had publicly deemed criminal — had her sentence commuted (not pardoned) after trial and conviction (and public apology), and after serving seven years of a 35 year (not life) prison term, from which she would have been eligible for parole after serving a third.
Regarding the material she leaked / whistleblew on, while at trial, her actions were deemed (among other charges) “aiding the enemy,” but a Defense Dept. report later said that the leaks she made had no strategic impact. Among the conditions in the clemency granted, Obama noted that her sentence had been disproportionately longer than similar leakers / whistle-blowers.
Again, this clemency (not pardon) went through a lengthy process, was advocated for by a wide array of people (and against by others), and chosen as a deliberate act with clear reasoning given.
Oscar Rivera was a FALN / Puerto Rican revolutionary who had his sentence commuted (again, not pardoned) after 35 years in federal prison, longer than any other convicted FALN inmate. At age 74, it seems unlikely that he will commit any more crimes of the sort that landed him in prison.
Joe Arpaio’s crime seems relatively trivial (no armed robbery, no geopolitical brouhaha, no charges of sedition or endangering the nation), but is not in the eyes of Hispanics in Arizona (or elsewhere), given the law enforcement harassment they had to endure under his policies. Nor was this a one-off occurrence in an “otherwise respectable” career, but just a capstone on a career as a “tough guy” who would control the border and subject prisoners to whatever the hell he wanted to and harass any Person of Color he took a mind to, and no weenie federal government was going to stop him.
Until it did.
Until it then didn’t.
Arpaio was pardoned (no commutation, as no sentence was pronounced and no time served, and essentially any civil penalties associated with the crime struck from the book), and the message from Trump seems to be, “Defy a federal court order, and if you’re my buddy, I got your back — especially if I can put judges, liberals, and Hispanics in their place. Oh, hey all you guys being looked at for the whole Russia thing? Remember this.”
Comparing the commutation of sentences by Obama and the pardon of Arpaio, the cases do not seem analogous.
Thanks for this
Here's an interesting historical discussion.
http://www.history.com/news/history-lists/7-famous-presidential-pardons