SENTENCE COMMUTATIONS AND THE EXECUTIVE PARDON POWER: ARTICLE: COMPELLING MERCY: JUDICIAL REVIEW AND THE CLEMENCY POWER Skip over navigation
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Copyright (c) 2012 University of St. Thomas Law Journal
University of St. Thomas Law Journal: Fides et lustitia

SENTENCE COMMUTATIONS AND THE EXECUTIVE PARDON POWER: ARTICLE: COMPELLING MERCY: JUDICIAL REVIEW AND THE CLEMENCY POWER

Spring, 2012

University of St. Thomas Law Journal: Fides et lustitia

9 U. St. Thomas L.J. 698

Author

PROFESSOR DANIEL T. KOBIL *

Excerpt

When I first began writing about pardons and commutations in 1991, I looked to the judiciary to improve the clemency process: "[the courts] can and should use judicial review to ensure that the executive is using the clemency power constitutionally." 1 I believed that judicial review of clemency was necessary for two reasons. First, federal statistics showed an alarming decline in the number of pardons and commutations granted by presidents, suggesting that there was a need to look to the courts to help "reinvigorate" the power. 2 Second, clemency decisions can potentially violate Equal Protection or Due Process principles, but without judicial review there is little to prevent even blatant constitutional violations by executives. 3

Today, the need for reform of the federal clemency process is even more apparent. The miserly clemency practices of Presidents George W. Bush and Barack Obama make clemency advocates long for the relative generosity of Presidents Carter and Reagan. 4 There is also a compelling case to be made that the Justice Department's advisory function has been captured--and ultimately undermined--by federal prosecutors who are primarily interested in ensuring that sentences be carried out, and rarely mitigated. 5 And suggestions that racial discrimination could infect the clemency process are no longer hypothetical. A U.S. pardon attorney has left his post and retired after making racially-biased remarks about a clemency applicant. 6 Even more troubling is a study of presidential pardons demonstrating that in recent years racial disparity mars the clemency process, with whites being more than ...
 
 
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