For most of our nation's history, the president's constitutional pardon power has been used with generosity and regularity to correct systemic injustices and to advance the executive's policy goals. Since 1980, however, presidential pardoning has fallen on hard times, its benign purposes frustrated by politicians 'fear of making a mistake, and subverted by unfairness in the way pardons are granted. The diminished role of clemency is unfortunate, since federal law makes almost no provision for shortening a prison term and none at all for mitigating the collateral consequences of conviction. It would be bad enough in these circumstances if presidents had made a conscious choice not to pardon at all, or to make only occasional symbolic use of their constitutional power. But what makes the situation intolerable is that, as the official route to clemency has all but closed, the back-door route has opened wide. In the past two administrations, petitioners with personal or political connections in the White House bypassed the pardon bureaucracy in the Department of Justice, disregarded its regulations, and obtained clemency by means (anal sometimes on grounds) not available to the less privileged. Much responsibility for the disuse and disrepute into which a once-proud and useful institution of government has fallen must be laid at the door of the Justice Department, which has failed in its responsibilities as steward of the pardon power, exposing the president to embarrassment and the power to abuse. To date, President Obama has taken no steps to reform and reinvigorate a pardon process that has, in Justice Anthony Kennedy's words, been "drained of its moral force." Why has the president's pardon power essentially ceased to function? Is it attributable to political caution, or is there something else at work? To find the answer, this Article first looks at pardoning practices in the nineteenth and early twentieth centuries, a time when the pardon power played an important operational role in the federal justice system. It describes how pardon evolved into parole, and how after 1930 pardon came to be used primarily to restore rights of citizenship. It then examines the reasons for pardon's decline in the 1980s and its collapse in the Clinton Administration. Finally, it argues that President Obama should want to revive the power, and suggests how he might do it.
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