Nov. 14, 2008 -- A record number of felons are seeking presidential pardons or commutations as President George W. Bush enters the final months of his term, creating one of the largest backlogs in clemency applications in recent history.
More than 2,300 people applied for a pardon or commutation in fiscal 2008, which ended Sept. 30, the largest number for any single year since at least 1900, according to Justice Department Statistics. The unprecedented number of applications and the lengthy time needed to make final decisions have led to a backlog of more than 2,000 pending clemency applications.
Who will, and will not, get clemency in the waning days of the Bush presidency -- a time when many presidents have granted sometimes controversial pardons -- remains the subject of speculation and controversy.
A number of high-profile felons have already sought clemency, among them Michael Milken, the junk-bond king and financier convicted of securities fraud in 1990; John Walker Lindh, the so-called American Taliban; Randy "Duke" Cunningham, the former California congressman who was convicted of tax evasion; and Edwin Edwards, the former governor of Louisiana convicted in 2000 of racketeering, according to the Justice Department.
And possible investigations into the Bush administration's interrogation and domestic surveillance policies has also raised the theoretical question of whether Bush will attempt to grant a blanket, preemptive pardon to members of his administration.
Bush, who came into office in the wake of the scandal surrounding Bill Clinton's pardon of fugitive financier Marc Rich, has so far used his pardon power sparingly. He has approved 157 pardons and six commutations, the lowest number of any president since World War II, except for his father, George H.W. Bush, who approved 74 pardons and three commutations in his four years as president.
The number of requested and pending applications jumped at the end of the Clinton administration and has remained high in the past eight years.
The president has virtually unchecked power to issue pardons and reprieves for federal crimes, except in cases of impeachment.
Pardon experts said a blanket, preemptive pardon of members of the Bush administration would be unprecedented, and unlikely.
Other presidents have granted controversial pardons -- President Gerald Ford pardoned Richard Nixon; Andrew Johnson pardoned Confederate soldiers after the Civil War; Jimmy Carter issued a blanket amnesty for Vietnam War-era draft-dodgers.
But legal scholars say there has been no comparable grant of amnesty for what would presumably be a large group of government officials for unspecified conduct. There would be other barriers, as well. Though a blanket amnesty would forestall potential criminal cases, legal analysts said a pardon could be read as a tacit admission of guilt.
Among those who've raised the preemptive pardon issue is Harold Krent, the dean of the Chicago-Kent School of Law, who studies presidential power. But he said it would be difficult to issue a blanket amnesty to administration officials without defining in some way the extent of the possibly illegal activity. "You would almost have to say that a person was tortured in order to absolve somebody of the torture," he said.
Unlike other controversial pardons, Krent said the extent of any potential illegal activity in the Bush Administration is not known. "We, as a society, lose the benefit from the closure and mere transparency that comes through a criminal trial," he said.
A White House spokesman would not comment on whether preemptive pardons were under consideration.
Process of Presidential Pardons
A pardon is an official act of forgiveness that removes civil liabilities stemming from a criminal conviction, while a commutation reduces or eliminates a person's sentence.
The Justice Department, which makes recommendations to the president about who should receive clemency, said it had not received applications from other high-profile convicts such as Jack Abramoff, Martha Stewart, Alaska Sen. Ted Stevens, who was recently convicted of lying on financial disclosure forms, or I. Lewis "Scooter" Libby, Vice President Dick Cheney's former chief of staff, who was convicted last year of perjury and obstruction of justice. Bush commuted Libby's sentence in July.
The president has the power to grant pardons or commutations on his own, even if felons have not applied through the Department of Justice.
Regardless of what happens to members of the Bush administration and high-profile figures like Libby, there are still thousands of largely unknown people seeking pardons or reduced prison sentence.
Critics say Bush has largely ignored his power to correct what they see as the excesses of a rigid criminal justice system -- what Alexander Hamilton called cases of "unfortunate guilt" -- and that large backlogs have meant that some clemency applications have lingered in the Department of Justice and the White House for years before action is taken.
"I think it's an absolute disgrace the way Democratic and Republican administrations, the Bush Administration apparently being the worst, have departed from giving many commutations and pardons except in political cases," said Phillip Heymann, a former Deputy Attorney General in the Clinton White House who now teaches at Harvard Law School. "I think it would be wonderful if we tore up everything to do with pardons and started over and made it a classy operation, with people carefully going over applications."
Current and former government officials say the backlog is causing long delays. Margaret Love, the U.S. Pardon Attorney from 1991 to 1997 who now represents people seeking pardons, said the Office of the Pardon Attorney, which makes recommendations to the president about who should receive clemency, is moving through cases without reviewing them in the same detail that it used to.
Love said many of her clients are no longer being referred by the office for an FBI background investigation, one of the initial steps for potentially promising pardon applications. She said she has clients who are awaiting decisions on applications filed during the Clinton Administration.
"They are denying people who meet the standards without an investigation," she said. "I cant get them to first base."
Ronald Rogers, the U.S. Pardon Attorney, declined to be interviewed. A Justice Department spokesman declined to comment other than to refer to 2001 congressional testimony from Roger Adams, the former pardon attorney.
In that testimony, Adams said the office's "initial investigative step," when reviewing commutation applications, was to read an applicant's pre-sentencing report, judgment of convictions and prison progress report.
In a recent court affidavit, a pardon office official said the office reviewed those documents in "many cases," which Love described as a "change in policy."
"The Department of Justice has basically closed down the pardon program for all intents and purposes for meaningful release of ordinary people," she said. "I don't think any substantive thought is given to the issues raised by the people who are applying."
The backlog in applications, according to Love, is a result of the tough-on-crime attitude of the 1980s, including the explosion in drug cases, mandatory-minimum sentencing laws and the abolition of parole. Bush has received 7,707 petitions for a reduced prison sentence, nearly six times the number received by President Ronald Reagan.
Several outside experts and government officials said presidents often see little political upside, and a lot of risk, in granting pardons.
Said Daniel Kobil, a professor at Capital University School of Law in Ohio, who studies presidential clemency, "I think we're seeing a Willie Horton-ization of the clemency power," a reference to the convicted felon whose release under a Massachusetts weekend furlough program helped torpedo Gov. Michael Dukakis' 1988 presidential campaign.