Spurred by a study showing that whites were four times likelier than minorities to receive a presidential pardon, the House Judiciary Committee has asked Atty. Gen. Eric H. Holder Jr. to explain changes he plans to make in the pardon process. Eliminating disparities is easier said than done, but some reforms are obvious.
Although presidents can issue pardons for any reason and without consulting anyone, typically applications are processed by the Justice Department and then forwarded with recommendations to the president. The department's Office of the Pardon Attorney employs several criteria in considering applications, including expressions of remorse, stable family relationships, community involvement and military service. The office also requires applicants to wait five years after their release to apply. (The president is not bound by that rule and can pardon people who are still in prison.)
In December, the Washington Post published the stark results of an investigation of the pardon process by the independent journalism organization ProPublica. In multiple cases it found shockingly different treatment for white and minority applicants even when their criminal histories were similar. Such discrimination is especially outrageous when it affects a practice designed to reward rehabilitation. And it comes against a backdrop of bipartisan parsimony in the granting of pardons. President George W. Bush pardoned only 189 people, all but 13 of whom were white. So far President Obama has pardoned only 22 people, two of them minorities. Bush followed the office's recommendation in nearly every case, Obama in every one.
Dealing with racial disparities would be easier if they could be ascribed to intentional discrimination. But the problem is that the pardon attorney's office pursues seemingly neutral policies that it should realize have a racially disparate impact. For example, one measure of an applicant's worthiness for a pardon is whether he has established a stable life after release; proof of stability includes an intact marriage and freedom from debt, qualifications that skew against minorities. The office also accepts recommendations from politicians interceding on behalf of their constituents or contributors, who turn out, not surprisingly, to be overwhelmingly white.
Racial disparities in sentencing were one reason Congress established a sentencing commission to devise guidelines to limit the discretion of judges. But it would be difficult to translate that approach to pardons because there is an inevitable subjectivity in determining, for example, whether an applicant has demonstrated remorse. Nor would it be wise to transfer the initial screening of pardon requests to the White House, which is infinitely more susceptible to political pressure than the pardon attorney's office.
So what can be done? Before submitting his recommendations, the pardon attorney should scrutinize them for racial disparities and, if they exist, be willing to take another look at the applicant pool to be sure there wasn't inadvertent bias. Criteria for assessing rehabilitation that disproportionately disadvantage blacks and other minorities should be reconsidered; divorce or credit card debt are not necessarily signs of moral weakness. Finally, the number (if not the proportion) of pardons for minorities would increase if both the pardon attorney and the president embraced the spirit as well as the letter of the pardon power.