White House memos show Obama's caution on pardons

WASHINGTON — President Obama would "very rarely, if ever" grant pardons for major drug offenses and gun crimes, according to White House memos on his executive clemency policy that reveal a cautious approach to his pardon power.

Those memos, obtained by USA TODAY, may partly explain Obama's historically infrequent use of his constitutional power to grant pardons. But even as Obama has "revamped" the pardon office in an effort to get more pardon applications, his official policy on granting pardons has remained unchanged.

That policy, outlined in a 2010 memo from the White House counsel, was largely modeled after the policy of President George W. Bush, outlining six categories of crimes for which clemency would be rarely granted.

Indeed, Obama kept Bush's 2001 pardon policy in place for the first 18 months of his presidency, before issuing his own guidance to the Office of Pardon Attorney in July 2010.

Critics of Obama's lackluster use of the pardon say that 2010 memo shows Obama shouldn't be surprised at the recommendations he's getting from the Justice Department office that screens pardon applications.

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"It's a memo that comes out 18 months after you take the oath, and that essentially tweaks a prior memo form a prior administration that no one thinks was doing a great job in this respect," said Douglas Berman, a law professor at Ohio State University. "And then it takes you four more years to figure out that you're not getting the cases you want to get? Well, you're not really looking."

But the White House says Obama has an "ongoing commitment" to issuing clemency and plans to review more requests in the coming months. Obama most recently shortened the sentences of 22 people convicted of drug crimes.

"The president believes strongly that a critical component of our criminal justice system is for deserving and qualified applicants to have the ability to petition for clemency," said Brandi Hoffine, an assistant White House press secretary.

Under the Constitution, the president "shall have Power to grant Reprieves and Pardons for Offences against the United States." And for much of the nation's history, presidents have used that power frequently in order to forgive past crimes, restore civil rights, show mercy and correct injustices.

But that power has withered over the last 40 years. President Nixon pardoned 51% of applications received, according to statistics compiled by political scientist P.S. Ruckman Jr.

For Bush, the rate was 7.6%. And for Obama, it's half of that.

Both Bush and Obama gave instructions to the Justice Department said they would look unfavorably on pardon applications for certain categories of serious crimes: terrorism and national security cases; violent crimes; crimes against children; gun crimes and public corruption cases.

Obama softened Bush's stance against drug crimes. Whereas Bush was reluctant to issue any pardons for drug trafficking cases, Obama's policy said pardons should be rare only for "large scale drug trafficking offenses in which the applicant had a significant role."

But even with a more liberal policy, Obama has granted just 22 drug-related pardons, compared with Bush's 30.

Obama also added significant financial crimes to the list of cases he would rarely grant pardons on.

Like Bush, Obama maintained a "three-strikes" rule, disfavoring applications where the applicant has three or more criminal convictions.

And while Obama did away with an effective 10-year time limit before someone can apply for a pardon, he expressed a preference for older cases.

"The President believes, however, that where more time has passed since conviction or release, applications will tend to be stronger, in part because the extended time period provides a greater opportunity for the applicant to establish exemplary post-conviction conduct and demonstrate true acceptance of responsibility, remorse and atonement," said the 2010 memo from then-White House counsel Robert Bauer.

But the White House doesn't just communicate to the pardon office by memo. The kinds of cases the president takes action on can send just as clear a message, said Margaret Love, who served as pardon attorney in the Clinton administration and now represents federal convicts seeking clemency.

"The White House was sending a clear signal in those early years that they didn't want anything but old filing-the-edges-off-pennies cases, and so that appears to be the kind of case they got from Justice," Love said.

Filing edges off of pennies was an actual pardon case: In December 2010, almost two years into his presidency, Obama issued his first nine pardons, including the 1963 case of Ronald Lee Foster. He was convicted of mutilating coins to fool vending machines into thinking they were dimes.

USA TODAY reported in February that Obama not only was granting fewer pardons than his predecessors — he was also granting them on increasingly older cases. Of his 64 pardons, only five have been for people convicted in the prior 15 years.

Since then, Obama has given a number of speeches and interviews explaining why he's been so stingy with granting pardons — only 64 over six-plus years, fewer than President Jimmy Carter issued every full year of his presidency.

In interviews with Buzzfeed, the Huffington Post, and in a speech in South Carolina, Obama said he was "revamping" the pardon office and taking a "new approach."

"I noticed that what I was getting was mostly small-time crimes from very long ago," Obama told the Huffington Post. "It'd be a 65-year-old who wanted a pardon to get his gun rights back. Most of them were legitimate, but they didn't address the broader issues that we face, particularly around nonviolent drug offenses. So we've revamped now the DOJ office. We're now getting much more representative applicants."

Neither the White House nor the Justice Department would explain the "revamp," but the Obama administration has taken a number of public steps over the last year.

Last April, Obama replaced Pardon Attorney Ronald Rodgers — a Bush holdover — with Deborah Leff, a journalist-turned-attorney who had worked on the Justice Department's Access to Justice Initiative.

At the same time, the Justice Department announced the criteria for a new Clemency Initiative that would shorten the sentences of non-violent, low-level drug offenders who received longer sentences than they would have under laws in place today.

But that new policy applies only to commutations — the shortening of sentences being served — rather than pardons, which are a complete legal forgiveness of a crime.

"It does strike me as very odd to have a six-year record of pardoning that is quite at odds with what he now says he was expecting after his first year," Love said. "He's only now saying, 'Send me something different,' and even now he's not saying that about pardon cases. He seems to be only saying that about commutation cases.

"As far as I can tell, the pardon caseload is not moving, and I have a lot of cases over there, so I ought to know," she said.

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