[Senate Report 106-231]
[From the U.S. Government Printing Office]
Calendar No. 445
106th Congress Report
SENATE
2d Session 106-231
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THE PARDON ATTORNEY REFORM AND INTEGRITY ACT
_______
March 9, 2000.--Ordered to be printed
_______
Mr. Hatch, from the Committee on the Judiciary, submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany S. 2042]
The Committee on the Judiciary, to which was referred the
bill (S. 2042) to reform the Department of Justice's Office of
Pardon Attorney, having considered the same, reports favorably
thereon, with amendments, and recommends that the bill, as
amended, do pass.
CONTENTS
Page
I. Purpose..........................................................1
II. Legislative history and need for legislation.....................2
III. Discussion.......................................................9
IV. Vote of the Committee...........................................17
V. Section-by-Section analysis.....................................17
VI. Cost estimate...................................................18
VII. Regulatory impact statement.....................................19
VIII.Minority views of Senators Leahy, Kohl, and Feingold............20
IX. Changes in existing law.........................................29
I. Purpose
The purpose of the Pardon Attorney Reform and Integrity Act
is to reform the way that the Department of Justice's Office of
the Pardon Attorney investigates potential grants of executive
clemency, which include pardons, reprieves, commutations and
remissions of fines. This legislation is necessary to ensure
that the Pardon Attorney, when asked by the President to
investigate a particular proposed clemency grant, identifies
and gathers the information and views held by law enforcement,
and to make sure that crime victims are not revictimized by
being ignored by the clemency process or by hearing of a grant
of clemency to their perpetrator on television.
II. Legislative History and Need for the Legislation
A. Legislative History
On August 11, 1999, President Clinton offered clemency to
16 people who had been convicted of a seditious conspiracy that
involved the planting of over 130 bombs in public locations in
the United States and the killing of 6 people. Those 16 felons
belonged to the violent Puerto Rican separatist organizations
called the Armed Forces for National Liberation (known by its
Spanish initials, ``FALN'') and Los Macheteros, which have
declared war against the United States in order to bring
attention to their political views. Approximately 4 weeks
later, on September 7, 1999, 11 of those terrorists who
accepted the clemency offer were released from prison. The
public reaction in America was widespread outrage. In response
to public concern, the Judiciary Committee undertook an
investigation of the role that the Department of Justice played
in facilitating the President's decision.
The investigation began with Chairman Hatch's requests for
documents from the Department of Justice and, specifically, its
Office of the Pardon Attorney. The Department of Justice
responded that those requests presented ``important
institutional issues'' and required additional time for
response.\1\ Chairman Hatch also requested that representatives
of the Department including the Pardon Attorney and agents of
the Federal Bureau of Investigation (``FBI'') testify at a
hearing scheduled for September 15, 1999. In a letter dated
September 14, 1999,\2\ the Department informed Chairman Hatch
that it would not allow the Pardon Attorney or any FBI
employees to testify before the Committee because of ``the
important constitutional and institutional interests implicated
by your invitation for testimony and the fact that the hearing
may in significant part address the exercise of an exclusive
president prerogative.'' The Department also mentioned that it
was reviewing the matter and ``consulting with the White
House'' about how to proceed.\3\
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\1\ Letter from Jon P. Jennings, Acting Assistant Attorney General,
to the Honorable Orrin G. Hatch, Chairman, Committee on the Judiciary
(September 7, 1999).
\2\ Letter from Jon P. Jennings, Acting Assistant Attorney General,
to the Honorable Orrin G. Hatch, Chairman, Committee on the Judiciary
(Sept. 14, 1999).
\3\ Id.
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Prior to the Judiciary Committee's hearing, the House and
Senate both passed resolutions condemning the President's
decision to grant clemency. The House resolution, H.R. 180,
passed on September 9, 1999, by a vote of 311 to 41 with 72
present. The Senate resolution, S.J. Res. 33, passed on
September 14, 1999, by a vote of 95 to 2.
On September 15, 1999, the Judiciary Committee conducted a
hearing and heard testimony from: Rocco Pascarella, a former
New York City policeman and victim of an FALN bombing; William
P. Newhall, a victim of an FALN bombing; Donald R. Wofford, a
former FBI special agent who investigated FALN crimes in New
York, NY; Richard S. Hahn, a former FBI special agent who
investigated FALN crimes in Chicago, IL; Gilbert G. Gallegos,
national president of the Grand Lodge, Fraternal Order of
Police in Washington, DC; Reverend Dr. C. Nozomi Ikuta, of the
United Church of Christ in Cleveland, OH; and the Honorable
Angel M. Cintron Garcia, the Majority Leader of the House of
Representatives of Puerto Rico. These witnesses testified about
some of the horrible crimes for which the FALN has proudly
claimed responsibility and the diligence with which law
enforcement agents investigated those difficult crimes and
prevented others from occurring. The witnesses also testified
about the shock, grief and horror they felt upon learning that
the President of the United States had decided to releasethe
FALN and Los Macheteros terrorists from prison.
Following that hearing, Chairman Hatch again asked the
Department of Justice to provide documents and testimony
concerning its role in the clemency decision. Again the
Department of Justice refused. Eventually, the Department
turned over several boxes of documents consisting largely of
letters in support of clemency, prison records concerning the
16 clemency offerees, and miscellaneous records not directly
related to the grant of clemency. The Department withheld all
relevant correspondence between it and the White House,
including the reports produced by the Pardon Attorney, on the
grounds of executive privilege.
Chairman Hatch persuaded the Department to provide
testimony to the Committee and scheduled a second hearing for
October 20, 1999, to examine the role played by the Department
and its Office of the Pardon Attorney in the clemency decision.
The Department's witnesses, Deputy Attorney General Eric Holder
and Pardon Attorney Roger Adams, repeatedly asserted executive
privilege when asked about the substance of advice made
available to the President. The Deputy Attorney General
conceded that the Department could have done a better job in
this matter, and in particular, that victims should not be shut
out of the process.
Following that hearing, Chairman Hatch began drafting
legislation aimed at reforming the way in which the Office of
Pardon Attorney investigates potential grants of executive
clemency. Draft legislation was reviewed by Senators from both
parties and by the Department of Justice. Chairman Hatch's
staff reviewed the Department's draft regulations and met with
the Department to discuss them. The parties did not reach an
agreement on the best way to structure the needed reforms.
On February 9, 2000, Chairman Hatch introduced S. 2042, the
Pardon Attorney Reform and Integrity Act, on behalf of himself
and Senators Nickles, Lott, Abraham, Thurmond, Kyl, Ashcroft,
Sessions, Smith of New Hampshire, and Coverdell. Senators
Murkowski and Helms were later added as additional cosponsors.
S. 2042 was referred to the Judiciary Committee.
The bill has the support of individual victims, victims'
organizations, law enforcement, and constitutional scholars.
Letters in support of the bill were received from the Fraternal
Order of Police, the Law Enforcement Alliance of America,
Joseph and Thomas Connor, Diana Berger Ettenson, and the
National Organization for Victims Assistance.\4\ Letters
defending the bill's constitutionality were written by Prof.
Akhil Reed Amar, of Yale Law School, and Prof. Paul G. Cassell,
of the University of Utah College of Law.
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\4\ Additional supporters include the FBI Agents' Association, the
International Association of Bomb Technicians, Federal Criminal
Investigators' Association, the National Association of Police
Officers, and the International Brotherhood of Police Officers.
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On February 10, 2000, the Judiciary Committee met in
executive session to consider the bill, and it was held over to
the next meeting. On February 24, 2000, the Judiciary Committee
met in executive session with a quorum present and considered
and accepted by voice vote a technical and clarifying amendment
offered by Chairman Hatch. The bill, as amended, was then
ordered favorably reported to the full Senate by voice vote.
B. Need for the Legislation
This legislation is needed because the current Justice
Department regulations governing the Office of the Pardon
Attorney are inadequate, a fact demonstrated by the events
leading to President Clinton's grant of clemency to the members
of the FALN and Los Macheteros. Legislation is also
necessitated by the inadequacy of the Justice Department's
proposed new regulations, which fail to address the legitimate
concerns of victims and law enforcement.
1. background: current regulations
The Office of the Pardon Attorney was created, and is
funded, by Congress. In 1891, the Congress appropriated money
for a position (then called the ``attorney in charge of
pardons'') in the Department of Justice that would be charged
with reviewing clemency petitions. To this day, the Office of
the Pardon Attorney depends on funds appropriated annually by
Congress. The Department, through the appropriations process,
requests funding for that office each year. In the most recent
appropriations legislation, the Congress appropriated $1.6
million for the Pardon Attorney for the fiscal year ending
September 30, 2000. This congressional involvement--creation
and funding of the office--justifies the exercise of oversight
authority by the Judiciary Committee.
Although important, the Pardon Attorney's responsibilities
are not complicated: it reviews petitions for clemency and, in
appropriate cases, investigates the potential clemency
recipients and writes a report and recommendation to the
President. Current Department regulations require that the
report contain a recommendation to the President on whether to
grant or deny the proposed clemency.\5\ The regulations also
require individuals seeking clemency to submit a petition to
the Pardon Attorney \6\; ordinarily, this event triggers the
Pardon Attorney's involvement. After receiving such a petition,
the Pardon Attorney makes an initial determination as to
whether the request merits further investigation. Many do not.
If it does, the Pardon Attorney investigates the requested
clemency recipient, typically beginning that investigation by
contacting the U.S. Attorney's office responsible for
prosecuting the case.
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\5\ U.S.A.M. Sec. 1.6(b).
\6\ U.S.A.M. Sec. 1.1.
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What is not required of the Pardon Attorney is equally
important. The Pardon Attorney is not required to notify
victims that a clemency investigation is underway or to
interview those victims for their viewpoint. Nor is the Pardon
Attorney required to ask law enforcement agencies whether the
proposed recipient of clemency could have information related
to open investigations or searches for fugitives. There is also
no requirement for the Pardon Attorney to assess the risks
posed by a particular grant of clemency (especially
commutations that result in a release from custody) either on
specific individuals (such as victims, witnesses and
prosecutors), on particular criminal activity (such as
enhancing a particular criminal organization), or on society at
large (by weakening the country's real or perceived resolve to
fight crime and incarcerate offenders). These areas seem to be
basic topics of investigation that an officer of the Department
of Justice should pursue.
At the conclusion of its investigation, the Pardon Attorney
is required to prepare a report and recommendation for the
President.\7\ That report should summarize the Pardon
Attorney's findings and analyze them in light of generally
accepted grounds for granting clemency. In the case of
commutations, the United States Attorneys' Manual describes
those grounds as follows:
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\7\ U.S.A.M. Sec. 1.6(b).
Generally, commutation of sentence is an extraordinary
remedy that is rarely granted. Appropriate grounds for
considering commutation have traditionally included
disparity or undue severity of sentence, critical
illness or old age, and meritorious service rendered to
the government by the petitioner, e.g., cooperation
with investigative or prosecutive efforts that has not
been adequately rewarded by other official action. A
combination of these and/or other equitable factors may
also provide a basis for recommending commutation in
the context of a particular case.\8\
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\8\ U.S.A.M. Sec. 1-2.113.
The Pardon Attorney's involvement typically ends soon after
the completion of the report, which is sent to the White House.
When the petition for clemency is either granted or denied by
the President, the Department must notify the petitioner.\9\ In
cases where the Pardon Attorney has recommended against
granting clemency, it is presumed that the President concurs
with that conclusion unless, within 30 days after the report is
submitted, the President indicates his disagreement.\10\ If the
President does not act within 30 days in such a case, then the
Department must notify the petitioner that the petition is
denied, and close the case.\11\ The President need not follow
the Pardon Attorney's advice--nor is he required to read any
report. The President has the final say over clemency matters.
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\9\ U.S.A.M. Sec. Sec. 1.7, 1.8(a).
\10\ U.S.A.M. Sec. 1.8(b).
\11\ Id.
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2. how current regulations operated in the faln clemency review
a. The absence of applications
The Pardon Attorney began investigating a potential grant
of clemency for the FALN terrorists even though none of those
terrorists had requested clemency. Indeed, none of the 16 terrorists
ever filed a petition for clemency. The Department of Justice's
regulations require that persons seeking executive clemency ``shall
execute a formal petition'' \12\ and state that investigations begin
``[u]pon receipt of a petition executive clemency.'' \13\ The absence
of petitions from the FALN and Los Macheteros prisoners was not a mere
oversight, but rather a result of their belief that the U.S. Government
has no right to punish them for committing ``political'' acts. This is
important because it reflects their lack of acceptance of
responsibility and feelings of remorse. The filing of petitions is also
important as a matter of administration because the requirement avoids
the situation in the FALN case where the Pardon Attorney investigated
potential offers of clemency to two people who refused to accept it
when offered. The decision to investigate a grant of clemency when no
petition has been received should always raise this question: Who wants
the President to grant clemency, and why, in cases where the potential
recipient has not asked for it?
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\12\ U.S.A.M. Sec. Sec. 1.1.
\13\ U.S.A.M. Sec. 1.6 (a).
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b. The campaign for release
On March 5, 1993, Luis Nieves-Falcon, who is believed to be
a member of the FALN, wrote to President Clinton, Attorney
General Reno, and Pardon Attorney Margaret Love requesting
``immediate and unconditional release from prison of Puerto
Rican independence fighters in U.S. jails and prisons'' and he
enclosed over 4,000 petitions. Love replied by letter on March
18, 1993, informing Nieves-Falcon that clemency is considered
only ``upon formal application by the individual who has been
convicted.'' Nieves-Falcon again wrote to Clinton, Reno, and
Love on March 30, 1993, and again on June 1, 1993, and June 11,
1993. When he wrote again on July 5, 1993, he enclosed 3,000
more letters in support of release. On November 9, 1993,
Nieves-Falcon and two others from ``Offensiva '92'' (one of
whom was Jan Susler of the People's Law Office) wrote ``[a]s
the legal representatives of the Puerto Rican political
prisoners in United States custody for their activities in
support of the independence and self-determination of Puerto
Rico'' and asked that their letter be taken as a formal
application by the prisoners. Love notified the White House of
Offensiva '92's request for the ``immediate and unconditional
release'' of the Puerto Rican terrorists on November 30, 1993.
Over the next few years, Offensiva '92 and other radical
groups organized an enormous letter-writing campaign. Thousands
of well-meaning people signed form letters, and prominent
politicians and activists joined the crusade. Letter writers
included former President Jimmy Carter, New York City Mayor
David Dinkins, a representative from the National Lawyers
Guild, a senator from Tasmania, Australia, and representatives
from the International Association Against Torture, the
National Association of Black Lawyers, the United Methodist
Church's General Commission on Religion and Race, and U.S.
Representatives Jose Serrano (D-NY), Nydia M. Velasquez (D-NY),
and Luis V. Gutierrez (D-IL).
As the letter-writing continued, the movement's leaders
began seeking--and obtaining--face-to-face meetings with top
Government officials. Such meetings occurred on at least nine
occasions. Those officials were not just listening--they
actually provided strategic advice to the terrorists'
sympathizers about how to present the best case for clemency to
the President.
c. Victims were shut out
While the clemency advocates were getting face-to-face
counsel from high Government officials, no one bothered to
notify any of the many victims of FALN and Los Macheteros
crimes that clemency was being considered. The victims learned
of the clemency offer just like everyone else: on television
after the fact. Relatives of people killed by the bombs were
revictimized by hearing on the news that the killers of their
loved ones were being set free. So, too, were those injured and
maimed by FALN bombs. In fact, many people who had been touched
physically, emotionally or financially by America's biggest
bombing conspiracy felt their wounds re-open on August 11,
1999.
The task of identifying and notifying relevant crime
victims is not beyond the capacity of the Department of
Justice. In fact, the Department was already well aware of one
victim, Joe Connor, whose father was killed by the FALN in the
Fraunces Tavern bombing. The Department wrote to Connor while
clemency was being investigated and told Connor about the
Department's ``policy of vigorously investigating and
prosecuting those acts of terrorism.'' The Department certainly
could have given Connor the dignity of a letter informing him
of the ongoing clemency review. Moreover, due to the Victims
Rights and Restitution Act of 1990, it is now routine practice
in U.S. Attorney's offices nationwide to notify crime victims
of material events in the criminal legal process.
d. Possible information on open cases was not even considered
While victim notification is a relatively recent addition
to the Justice Department's responsibilities, asking for
information about unsolved cases is not. Yet no one in the
Pardon Attorney's Office ever inquired whether the FALN and Los
Macheteros prisoners might have information relevant to open
investigations or the apprehension of fugitives. Such an
inquiry should be self-evident with regard to the FALN and Los
Macheteros prisoners because one of their codefendants, Victor
Gerena, is on the FBI's ``ten most wanted'' list. It is also
well known that many of the killings associated with the FALN
bombings, including the infamous lunchtime bombing of New
York's Fraunces Tavern restaurant, remain unsolved. Employees
of the Department of Justice should have asked such questions.
The failure to do so in this case could very likely mean that
Gerena and the other perpetrators of the bombing campaign will
never be brought to justice.
e. Effect of clemency on threat of criminal activity not considered
Another area of inquiry that went unexplored is whether law
enforcement agents had opinions on whether granting clemency to
the FALN and Los Macheteros terrorists would have an impact on
terrorism. Such an inquiry would not have taken a lot of
effort. The Attorney General herself identified the FALN and
Los Macheteros as terrorist organizations posing an ongoing
threat to our Nation and concluded that ``[f]actors which
increase the present threat from these groups [the FALN and Los
Macheteros] include renewed activity by a small minority
advocating Puerto Rican statehood, the 100-year anniversary of
the U.S. presence in Puerto Rico, and the impending release
from prison of members of these groups jailed for prior
violence.'' \14\ This report came from under the same roof as
the Pardon Attorney's. Moreover, another Justice Department
official, FBI Director Louis Freeh concluded that the release
of the FALN terrorists would ``psychologically and
operationally enhance'' the ongoing violent and criminal
activities of Puerto Rican terrorist groups and ``would likely
return committed, experienced, sophisticated and hardened
terrorists to the clandestine movement.'' \15\ Such information
has critical import to possible grants of clemency and must be
included in any report and recommendation.
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\14\ Five-Year Interagency Counterterrorism and Technology Crime
Plan, Sept. 1999, at 11 (emphasis added).
\15\ Draft letter from FBI Director Louis Freeh to Representative
Henry J. Hyde.
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f. Information from intelligence agencies
The Pardon Attorney did not interview intelligence agencies
concerning possible links between the FALN and Los Macheteros
prisoners and state-sponsored crime and terrorism. If the
Pardon Attorney had done so, perhaps it would have come to
light before the President granted clemency that the FALN and
Los Macheteros have close ties to the Cuban Government and
quite possibly shared with Cuba the spoils of its crimes in
America. According to Jorge Masetti, a former Cuban
intelligence agent, Cuba's intelligence agency helped Los
Macheteros to plan and execute the $7.1 million Wells Fargo
robbery--the biggest cash heist in U.S. history--by providing
funding and training, as well as by assisting in smuggling the
money out of the country. Some sources estimate that $4 million
from the robbery ended up in Cuba. The Pardon Attorney should
be obligated by law to uncover such information when it exists
and make it available to the President who is considering
granting clemency.
g. The pardon attorney's reports did not comply with regulations
Although it submitted a report in December 1996
recommending against the granting of clemency for the FALN
terrorists--which should have ended its involvement--the Pardon
Attorney produced another report 2\1/2\ years later reportedly changing
its recommendation. The second report did not recommend either for or
against the granting of clemency, violating the Justice Department
regulation requiring that in every clemency case the Department ``shall
report in writing [its] recommendation to the President, stating
whether in [its] judgment the President should grant or deny the
petition.''
3. proposed justice department regulations are also inadequate
Legislation is necessary to remedy the deficiencies in the
operation of the Office of the Pardon Attorney that were
exposed during the pendency of the FALN clemency review. A
change of Department regulations will not be sufficient.
Despite having half a year since the public outcry over the
FALN clemency to reform itself, the Department has suggested
only minimal changes in the way it does business. In its draft
regulations, the Department agrees that it should ascertain the
views of victims, but gives the Attorney General the ability to
determine whether or not to do so in each case. The
Department's proposal also fails to notify victims when it
undertakes a clemency investigation or when it makes available
its report to the President.
Equally important, the Department's suggested regulations
ignore the Department's main job: to protect law-abiding people
from criminal acts. The draft regulations do not require the
Pardon Attorney to talk to law enforcement officials about
whether a particular person could provide helpful information
about criminal investigations or searches for fugitives. Nor
would the Department require the Pardon Attorney to ask law
enforcement whether a potential release from prison would pose
a risk to specific people other than victims or to a broader
societal interest such as enhancing a particular criminal
organization or decreasing the deterrent value of prison
sentences. The Department's proposed regulations also ignore
the importance of whether a potential clemency recipient has
accepted responsibility for, or feels remorse over, criminal
acts.
Even if the Department's proposed regulations were
substantially similar to this bill, moreover, those regulations
could not overcome what is perhaps the most important weakness
of all: regulations are not law. They do not have the force of
statutes, and they can be changed very easily. The FALN case
proves the need for a statute because the Attorney General
ignored even the current, weak regulations in the FALN matter.
As discussed above, it is clear that the Pardon Attorney did
not follow the Justice Department regulations requiring
petitions to be submitted before an investigation into a
potential grant of clemency is begun and requiring the Pardon
Attorney to make a recommendation either for or against
clemency.
III. Discussion
A. Overview of Legislation
S. 2042, the Pardon Attorney Reform and Integrity Act,
would provide guidance to the Office of the Pardon Attorney to
gather critical law enforcement and victim information in those
particular cases in which the President chooses to have that
Office conduct a clemency investigation. Such information would
include facts and opinions from law enforcement agencies about
the risks posed by any release from prison. The bill would also
help ensure that the victims of crime will not be shut out of
the clemency process. Specifically, the bill would do the
following:
Give victims a voice by notifying them of key events
in the clemency process and by giving them an
opportunity to submit their opinions;
Enhance the input of law enforcement by requiring the
Pardon Attorney to notify the law enforcement community
of a clemency investigation and permitting law
enforcement to express its views on:
The impact of clemency on the individuals affected by
the decision--for example, victims and witnesses;
Whether clemency candidates have information which
might help in open investigations and searches for
fugitives; and
Whether granting clemency will increase the threat of
terrorism or other criminal activity by enhancing
particular organizations or affecting the public
perception of the Government's resolve to locate,
prosecute and incarcerate criminals.
These provisions would apply only if the President (or his
delegate, including the Attorney General) chose to ask the
Office of the Pardon Attorney to conduct a clemency
investigation in a particular case. This bill would affect only
the Pardon Attorney, and would do so only when the President
decided to give a case to the Pardon Attorney. Accordingly,
this bill would preserve the full range of Presidential
constitutional power to exercise the pardon power solely
according to the President's best judgment. Moreover, this bill
would also leave untouched the current system by which the
Pardon Attorney exercises discretion to determine which
petitions for clemency lack sufficient merit to justify the
commencement of an investigation. The provisions of this bill
are not meant to apply to nonmeritorious clemency petitions.
B. Questions About Constitutionality
The Department of Justice has opined that the Pardon
Attorney Reform and Integrity Act is unconstitutional.\16\ The
rationales for this opinion include the general nature of
executive power, the pardon power, and the President's need to
obtain confidential advice.
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\16\ Letter from Robert Raben, Assistant Attorney General, Office
of Legislative Affairs, to the Honorable Orrin G. Hatch, Chairman,
Senate Committee on the Judiciary (Feb. 17, 2000) (``DOJ letter'').
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1. bill's effect on pardon power generally
The Department's assertion that the Pardon Attorney Reform
and Integrity Act is unconstitutional is based for the most
part on the Department's observation that the pardon power ``is
committed exclusively to the President.'' \17\ According to the
Department, ``because the President's pardon authority is
plenary, even statutes that create what may seem to be only
minor incursions on the President's discretion are
unconstitutional.'' \18\ Professor Amar has concluded that much
of the Department's letter is ``irrelevant and overwrought.''
\19\ If the Department's position is correct, the Office of
Pardon Attorney ``as it currently exists'' would be
unconstitutional.\20\
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\17\ DOJ letter at 2.
\18\ Id. at 4.
\19\ Letter from Akhil Reed Amar, Southmayd Professor, Yale Law
School, to the Honorable Orrin G. Hatch, Chairman, Senate Committee on
the Judiciary (Feb. 23, 2000) (``Amar letter'') at 2.
\20\ Amar letter at 4.
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S. 2042 does not create even a minor ``incursion on the
President's discretion.'' It does not modify, restrict or
condition the President's exercise of the pardon power in any
way. Nor does it attempt to change the effect of any grant of
clemency. Rather, it affects how the DOJ's Office of the Pardon
Attorney--a congressionally created and funded office--performs
its investigation, and its requirements apply only when the
President asks the Pardon Attorney to investigate a particular
clemency request. The bill does not require the President to
ask the Pardon Attorney for advice, nor does it preclude the
President from seeking any other information or advice from any
source whatsoever, including the Attorney General herself. The
bill has no effect on the confidentiality of any information;
it does change the law of executive privilege and does not
purport to give Congress the right to read any information or
advice prepared by the Pardon Attorney or provided to the
President.
Because the Department's arguments do not refer to any of
the actual terms of S. 2042, it is important to keep in mind
the context of the Department's opinion. The Department is
known for taking extreme positions in favor of executive rights
and prerogatives. This is the same Department that responded to
this Committee's requests for documents and testimony by
claiming that Congress lacks any oversight jurisdiction
whatsoever concerning the operations of the Office of the
Pardon Attorney. The Department's position is wrong. Congress
clearly does have such oversight jurisdiction, as pointed out
by the noted constitutional scholar and Yale Law School
Professor Akhil Amar:
[T]he argument that Congress has no proper role in
investigating suspicious pardons orgrants of clemency
is constitutionally cockeyed. True, the Constitution vests the
president and the president alone with the pardon power--but the same
is true of the powers to veto laws, to appoint Cabinet officers, to
command the Armed Forces, to negotiate treaties, and to do a great many
other things. These other powers are not immune from congressional
oversight; why should the pardon power be any different? In theory, any
one of these powers might be used corruptly--for example, in exchange
for a bribe.
And, even if a pardon is utterly final, Congress surely
has a legitimate role in assessing whether the Justice
Department's general system for processing pardon
requests needs revamping. (Congress, after all, foots
the bill for this and all other executive departments.)
\21\
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\21\ Amar, Akhil Reed, ``Scandalized,'' The New Republic, Oct. 11,
1999.
In sum, the Department's hard-line position favoring executive
power is irrelevant to S. 2042, which simply is not an
``incursion'' into the President's pardon power, and is
incorrect with respect to jurisdiction over the Pardon
Attorney, which is a congressionally created and funded office.
2. case law concerning the pardon power
Rather than analyzing cases applicable to Congress' power
to regulate the agencies it creates and funds, the Department
instead relies upon the few Supreme Court cases concerning
congressional attempts to change the President's authority
pursuant to the Pardon Power. Those cases are not on point with
respect to S. 2042 because it does not affect any pardon power
decisions. The bill is consistent with the Supreme Court's
opinions relating to the pardon power. The bill neither
``change[s] the effect of * * * a pardon'' as described in
United States v. Klein, 80 U.S. (13 Wall.) 128 (1872), nor will
it ``modif[y], abridge[], or diminish[]'' the President's
authority to grant clemency as discussed in Schick v. Reed, 419
U.S. 256, 266 (1974). In fact, the bill will have no effect
whatsoever on the President's ability to exercise the pardon
power as he or she sees fit.
Moreover, the Department ignores the fact that, despite
Klein, the Supreme Court has also upheld at least two cases
limiting the effect of pardons. In Carlesi v. New York, 233
U.S. 51 (1914), the Court found that it was within the power of
the legislative branch to determine what effect a pardon would
have on future criminal sentences. And in Knote v. United
States, 95 U.S. 149 (1877), the Court held that the President
cannot use the pardon power to order the treasury to refund
money taken from a prisoner--even though that prisoner had been
pardoned for the crime that gave rise to the Government's
seizure of that money. Even though these cases are no more
relevant to the Pardon Attorney bill than those cited by the
Department (because the bill does not limit the effect of
pardons), the fact that the Supreme Court has approved certain
limitations on the President's pardon authority demonstrates
that this area of law is not absolutely immune from Congress as
the Department suggests.
The fact that S. 2042 does not limit the President's
deliberation over pardons is the reason that the Department's
heavy reliance on Public Citizens v. Dep't of Justice, 491 U.S.
440 (1989) is misplaced. There the Court considered the
application of a statute, the Federal Advisory Committee Act
(FACA), to the Department which would have subjected the
process involving judicial nominations to ``bureaucratic
intrusion and public oversight.'' Id. at 454 n.9. At issue was
the allegation that the Department of Justice could not consult
with the American Bar Association concerning judicial nominees
unless the ABA made its meetings on the subject presumptively
open to the public. Id. at 446-47. The Court reached no firm
conclusion about the constitutionality of such a requirement in
that case, holding only that the constitutional issues were
``serious[].'' Id. at 467. FACA, as the concurring Justices
construed it, literally applied to the President himself, and
to any advice--even informal advice from friends-that he might
seek. FACA's language literally applied to all groups of
persons ``utilized by the President.'' As the Court majority
pointed out, a literal reading of the act would seem to deprive
the President of the ability to confer in confidence with the
NAACP or the American Legion or his own political party.
Obviously, there is a vast difference between FACA, making
public what had previously been confidential executive branch
deliberations, and S. 2042, which has no impact whatsoever on
the laws and privileges that shield the Pardon Attorney's work
from public view. Justice Kennedy's concurrence in Public
Citizen expressed fear that the statute in that case would
``potentially inhibit the President's freedom to investigate,
to be informed, to evaluate, and to consult during the
nomination process * * *.'' Id. at 488 (Kennedy, J.,
concurring). Nothing in S. 2042 would remotely have these kinds
of effects. Indeed, the Pardon Attorney bill explicitly states
that the President will retain the ability to seek information
and advice from whatever sources he or she chooses.
A Supreme Court decision more directly on point is Nixon v.
Administrator of General Services, 433 U.S. 425 (1977), which
concerned a statute that instructs the executive branch on how
to maintain Presidential records. The Court rejected as
``archaic'' the view that separation of powers requires ``three
airtight departments of government.'' Id. at 443 (internal
quotation omitted). Instead, the Court instructed that ``the
proper inquiry focuses on the extent to which it prevents the
Executive Branch from accomplishing its constitutionally
assigned functions.'' Id. at 443. ``Only where the potential
for disruption is present,'' the Court held, ``must we then
determine whether that impact is justified by an overriding
need to promote objectives within the constitutional authority
of Congress.'' Id. In the context of the Pardon Attorney bill,
the modest step of requiring the Pardon Attorney to consult
with law enforcement and victims would not ``disrupt'' the
proper exercise of the President's pardon power in any way.
Indeed, the Department's analysis of the bill does not offer
any example of how the bill would disrupt executive functions.
To the contrary, the Department's current analysis \22\ of the
issues relies on the sweeping claim that ``any'' intrusion by
the legislative branch is unconstitutional, without regard to
the effects.\23\ Whatever the merits of such a broad view of
executive power, it is plainly not the law.
---------------------------------------------------------------------------
\22\ The Department concedes that its current analysis differs from
the position its own Office of Legislative Affairs took in 1975. See
DOJ letter at p. 5 n.3 (discussing Memorandum for Hon. James. T. Lynn,
Director of OMB, from Asst. A.G. Michael M. Uhlman, Office of
Legislative Affairs, in which the Office reasons that Congress ``might
also be able to authorize an executive branch agency to make pardon
suggestions'').
\23\ DOJ letter at 3.
---------------------------------------------------------------------------
3. congress' alleged attempt to influence pardons
The Department's assertion that the Pardon Attorney bill is
unconstitutional because it attempts to allow Congress to
express its opinion on clemency matters is utterly without
basis. According to the Department, the Pardon Attorney bill is
unconstitutional because it ``seeks to influence the
President's consideration of clemency'' and its ``manifest
purpose'' is ``to ensure that the President is aware of views
that Congress believes the President should consider * * *''
\24\ This argument is a misreading of both the Constitution and
the Pardon Attorney bill.
---------------------------------------------------------------------------
\24\ DOJ letter at 3.
---------------------------------------------------------------------------
The Supreme Court tacitly acknowledged in United States v.
Klein, 13 Wall. 128, 139 (1871) that a congressional
``suggestion of pardon'' does not raise constitutional issues.
(The Department acknowledges that this is the Department's
reading of Klein.) \25\ Indeed, if it were unconstitutional for
Congress to express an opinion on clemency matters, a ``sense
of the Senate'' resolution on pardon matters--including the one
condemning President Clinton's decision to free the FALN
terrorists--would also be unconstitutional. Clearly, this is
not the law.
---------------------------------------------------------------------------
\25\ DOJ letter at 5 n.3 (discussing Memorandum for Hon. James. T.
Lynn, Director of OMB, from Asst. A.G. Michael M. Uhlman, Office of
Legislative Affairs, in which the Office reasons that Congress ``might
also be able to authorize an executive branch agency to make pardon
suggestions'').
---------------------------------------------------------------------------
Moreover, the Pardon Attorney bill does not have either the
intent or the effect of making the President aware of certain
views. The bill requires the Pardon Attorney to interview
certain sources of potentially relevant information, but does
not require the Pardon Attorney to seek out or report any
particular views. The Department seems to assume that the bill
requires the Pardon Attorney to express only the view against
clemency, an assumption for which there is no basis.
4. notice to victims and confidentiality of advice
The Department's argument that the bill's victim-
notification requirements ``impermissibly interfere with the
President's right to maintain confidentiality of the pardon
decision-making process'' \26\ is perhaps the Department's
weakest point. The Pardon Attorney bill does not require public
disclosure of any deliberations or advice given to the
President, including the Pardon Attorney's report and
recommendation. On the contrary, the bill simply provides
victims notice that certain material events in the clemency
process have occurred. Analogous notifications to victims are
given in most of the criminal proceedings throughout the
country due to laws such as the Federal Victims' Rights and
Restitution Act of 1990. In fact, the U.S. Attorney's Manual
already requires the Pardon Attorney to provide notice to the
petitioner when the President grants or denies a clemency
request, and when a clemency petition is deemed denied, which
occurs in the absence of Presidential action 30 days after the
Pardon Attorney submits a report recommending denial of
clemency.\27\ Revealing such information--even to victims--does
not compromise the confidentiality of the President's
deliberations and advice any more than notice of a sentencing
hearing compromises a judge's ability to talk candidly with
probation officers and law clerks.
---------------------------------------------------------------------------
\26\ DOJ letter at 5.
\27\ U.S.A.M. Sec. Sec. 1.7, 1.8.
---------------------------------------------------------------------------
Moreover, allowing victims to voice their opinions is
important both to the interests of justice and to the victims
themselves. As Prof. Paul G. Cassell explained in his testimony
on behalf of the National Victims' Constitutional Amendment
Network before the Subcommittee on the Constitution,
Federalism, and Property Rights of the Senate Judiciary
Committee:
Providing victims an opportunity to be heard before
clemency decisions are made, as many of these states
have done, makes considerable sense both as a matter of
public policy and fundamental justice. Just as
sentencing judges and prosecutors possess important
information about a case, so too do victims have vital
information about the effects of the crime that ought
to be considered before any clemency decision is
finalized. As the President's Task Force on Victims of
Crime has explained, No one know better than the victim
how dangerous and ruthless the [clemency] candidate was
before * * *.'' Victim participation at the clemency
stage is also vital to insure that victim participation
at earlier points in the process is not rendered
irrelevant. It makes little sense to give victims a
right to be heard at proceedings concerning plea
bargains, sentencing and parole (as provided in Senate
Joint Resolution 3 and in the laws of Missouri and many
states) if, after all that, a pardon or commutation can
be granted without their involvement or, indeed, even
their knowledge. It is, moreover, important that
victims be notified that a possible commutation of
sentence when that commutation might entail release of
an offender. Victims have legitimate interests in
release decisions, the President's Task Force
concluded, ``not only because of the desire for the
service of a just sentence but also because of their
legitimate fear of revictimization once the defendant
is released.'' \28\
---------------------------------------------------------------------------
\28\ See Statement of Paul G. Cassell on behalf of the National
Victims' Constitutional Amendment Network before the Subcommittee on
the Constitution, Federalism, and Property Rights of the Sen. Judiciary
Committee (May 1, 1999).
---------------------------------------------------------------------------
5. opinions clause
The opinions clause says that the President ``may require
the Opinion, in writing, of the principal Officer in each of
the executive Departments, upon any Subject relating to the
Duties of their respective Offices.'' Art. II, sec. 2. The
``principal officer'' of the Department of Justice is the
Attorney General, not lower level officials such as the Pardon
Attorney. As one noted Constitutional scholar put it, ``the
`principal Officer' language * * * exemplifies the Founders'
expectation that the President will ordinarily pick, act
through, and monitor only a handful of personal lieutenants--
his inner circle.'' \29\ No one would suggest that the Pardon
Attorney is the principal officer of the Department or one of
the President's ``handful of personal lieutenants.''
---------------------------------------------------------------------------
\29\ Amar, Akhil Reed, ``Some Opinions on the Opinion Clause,'' 82
Va. L. Rev. 647, 667 (1996).
---------------------------------------------------------------------------
The Pardon Attorney bill was not meant to apply to
situations where the President solicits advice directly from
the Attorney General. In drafting the bill, we used the term
``Attorney General'' as a global term meaning the Pardon
Attorney or anyone at the Department of Justice because this
use is a widely followed convention in legislative drafting.
The technical and clarifying amendment--changing the term
``Attorney General'' to ``Pardon Attorney'' wherever it appears
(except the last paragraph, which requires the Attorney General
to promulgate regulations)--alleviates any concerns relating to
the opinion clause because it clarifies that the provisions of
the Pardon Attorney bill do not come into play when the
President solicits opinions and advice directly from the
Attorney General. The amendment also adds a phrase explicitly
clarifying that the bill shall not be construed to ``limit the
President's ability to seek advice directly from the Attorney
General or any informal advisor regarding any pardon matter.''
6. article ii executive power and congressional oversight
The Department alleges that the Pardon Attorney bill
``may'' impinge upon the President's power to ``take care that
the laws be faithfully executed'' and his authority to exert
``general administrative control of those officers executing
the laws.'' \30\ But it is Congress, not the President, that
has the authority--indeed, the responsibility--to examine and
legislate the manner in which the Justice Department performs
its work. Congress created an ``attorney in charge of pardons''
within the Department of Justice in 1891, and appropriated
money for an ``attorney in charge of pardons'' in that same
year. To this day, the Office of the Pardon Attorney depends on
funds appropriated annually by the Congress. In the most recent
appropriations legislation, the Congress appropriated $1.6
million for the Pardon Attorney for the fiscal year ending
September 30, 2000. This congressional involvement--creation
and funding of the office-provides a compelling basis for the
Judiciary Committee's investigation and the present
legislation. Professor Amar explained:
---------------------------------------------------------------------------
\30\ 30 DOJ letter at 5.
The Constitution does no require that such a low-level
office even exist. It is up to the Congress to decide
whether to create such an office; and how to fund it.
The most relevant constitutional power here is
Congress's power of the purse, not the President's
power of the pardon.\31\
---------------------------------------------------------------------------
\31\ Amar letter at 3.
The power of the Congress ``to conduct investigations is
inherent in the legislative process. That power is broad. It
encompasses inquiries concerning the administration of existing
laws as well as proposed or possibly needed statutes.'' Watkins
v. United States, 354 U.S. 178, 187 (1957). The scope of this
power is as penetrating and far-reaching as the potential power
to enact and appropriate under the Constitution. Eastland v.
United States Servicemen's Fund, 421 U.S. 491, 504 n. 15 (1975)
(quoting Barenblatt v. United States, 360 U.S. 109, 111
(1959)). The Supreme Court has also recognized ``the danger to
effective and honest conduct of the Government if the
legislative power to probe corruption in the Executive Branch
were unduly hampered.'' Watkins, 354 U.S. at 194-95. Once
having established its jurisdiction and authority, and the
pertinence of the matter under inquiry to its area of
authority, a committee's investigative purview is substantial
and wide-ranging. Wilkinson v. United States, 365 U.S. 408-09
(1961).
Congress also has broad powers under the Constitution to
``make all Laws which shall be necessary and proper for
carrying into Execution the foregoing Powers, and all other
Powers vested by this Constitution in the Government of the
Unites States, or in any Department of Officer thereof.'' The
areas in which Congress may potentially legislate or
appropriate are, by necessary implication, even broader. Thus,
in determining whether Congress has jurisdiction to oversee and
enact legislation, deference should be accorded to Congress'
decision.
Because of this legal history, the administration of the
Department of Justice and its various components has long been
considered an appropriate subject of Congressional oversight.
Early this century, in McGrain v. Daugherty, 273 U.S. 135, 151
(1927), the Supreme Court endorsed Congress' authority to study
``charges of misfeasance and nonfeasance in the Department of
Justice.'' In that case, which involved a challenge to
Congress' inquiry into the DOJ's role during the Teapot Dome
scandal, the Court concluded that Congress had authority to
investigate ``whether [DOJ's] functions were being properly
discharged or were being neglected or misdirected, and
particularly whether the Attorney General and his assistants
were performing or neglecting their duties in respect of the
institution.'' Id. at 177. These precedents make clear that the
Judiciary Committee has jurisdiction to investigate the Pardon
Attorney's role in the pardon process, and to enact legislation
concerning the way in which that office operates.
IV. Vote of the Committee
On January 24, 2000, with a quorum present, the Judiciary
Committee met in executive session and considered and accepted
by voice vote a technical and clarifying amendment offered by
Chairman Hatch. The bill, as amended, was then ordered
favorably reported to the full Senate by voice vote.
V. Section-by-Section Analysis
Section 1.--Short title
The bill is titled the ``Pardon Attorney Reform and
Integrity Act.''
Section 2.--Reprieves and pardons
Definitions. Subsection (a) defines ``executive clemency''
as any exercise of the President's power under article II,
section 2 to grant reprieves and pardons, including pardons,
commutations, reprieves and remissions of fines. It defines
``victim'' to match the definition employed in the Victims
Rights and Restitution Act of 1990 (42 U.S.C. 10607(e)).
Reporting Requirement. Subsection (b) requires the Pardon
Attorney to prepare a written report and make it available to
the President whenever the President asks for an investigation
into a particular potential grant of executive clemency. Each
such report must contain a description of the efforts made by
the Pardon Attorney to comply with the bill's requirements, and
must attach copies of any written statements submitted by
victims.
Determinations Required. Subsection (c) requires the Pardon
Attorney to: (1) determine the opinions of relevant victims
concerning potential grants of executive clemency, and to
inform those victims that they may submit written statements
for inclusion with the Pardon Attorney's report and
recommendation; (2) determine the opinions of relevant law
enforcement officials about whether specific potential grants
of executive clemency are appropriate, whether such grants
would cause danger to society, and whether the potential
recipients of such grants have accepted responsibility for, or
expressed remorse over, their criminal conduct; (3) determine
the opinions of relevant law enforcement officials about
whether the potential recipients of executive clemency may have
information relevant to ongoing investigations, prosecutions,
or efforts to apprehend fugitives; and (4) determine the
opinions of relevant law enforcement and intelligence officials
regarding whether specific grants of executive clemency would
affect the threat of terrorism or other criminal activity.
Notification to Victims. Subsection (d) requires the Pardon
Attorney to notify relevant victims of the following material
events in the clemency process: (A) when the Pardon Attorney
begins a review or investigation of potential grant of
executive clemency; (B) when the Pardon Attorney submits its
report and recommendation to the President; (C) when the
President decides to grant or deny clemency. In addition, when
the President's decision to grant executive clemency will
result in the release of a prisoner, the Pardon Attorney must
notify relevant victims prior to any such release from prison
if practicable.
No Effect on Other Actions. Subsection (e) clarifies that
this bill does not: (1) limit the President's ability to seek
advice directly from the Attorney General or any informal
advisor regarding any pardon matter; (2) prevent any Justice
Department officials from contacting anyone in connection with
the investigation or review of any potential grant of executive
clemency; (3) prohibit the inclusion of any information or
advice in any report to the President; or (4) affect the manner
in which the Pardon Attorney determines which petitions or
requests for executive clemency lack sufficient merit to
warrant any investigation.
Applicability. Subsection (f) clarifies that this bill does
not apply to any petition or request for executive clemency
which the Pardon Attorney determines lacks sufficient merit to
warrant any investigation.
Regulations. Subsection (g) requires the Attorney General,
within 90 days after enactment, to promulgate regulations for
compliance with this act.
VI. Cost Estimate
U.S. Congress,
Congressional Budget Office,
Washington, DC, March 6, 2000.
Hon. Orrin G. Hatch,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 2042, the Pardon
Attorney Reform and Integrity Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Lanette J.
Keith, who can be reached at 226-2860.
Sincerely,
(for Dan L. Crippen, Director).
Enclosure.
congressional budget office cost estimate
S. 2042--Pardon Attorney Reform and Integrity Act
CBO estimates that implementing S. 2042 could increase
discretionary spending by up to $2 million a year, assuming the
appropriation of the necessary amounts. Because the bill would
not affect direct spending or receipts, pay-as-you-go
procedures would not apply. S. 2042 contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act and would impose no costs on
state, local, or tribal governments.
S. 2042 would set requirements for reports written by the
Office of the Pardon Attorney, within the Department of Justice
(DOJ), regarding petitions for clemency. The legislation would
require each report to include opinions of federal, state, and
local law enforcement officials, judges, prosecutors, probation
officers, prison officials, and victims. In addition, the bill
would require the office to notify the victims of each offense
committed by an individual who is subject to a grant of
clemency.
The Office of the Pardon Attorney receives and reviews
approximately 1,000 petitions for clemency each year with 15
full-time staff members and a current annual budget of $1.6
million. Many of the petitions require little investigation
beyond gathering a pre-sentence report and any published court
options. If a summary denial is not determined after the
initial review, further investigation may include contacting
victims and officials involved in the case. Currently, the
office investigates all petitions for clemency; therefore, we
assume all petitions would fall under the provisions of S.
2042.
Based on information from DOJ, CBO expects that S. 2042
could double the workload of the Office of the Pardon Attorney.
The increase in workload would stem from the additional time
and effort necessary to meet the bill's requirements to contact
and determine the opinions of all individuals involved in each
case. CBO estimates that implementing S. 2042 would increase
discretionary spending by up to $2 million a year, assuming the
appropriation of the necessary amounts. The cost to implement
this legislation could vary, however, depending on DOJ's
interpretation of the requirements that would be established by
the bill.
The CBO staff contact for this estimate is Lanette J.
Keith, who can be reached at 226-2860. This estimate was
approved by Peter H. Fontaine, Deputy Assistant Director of
Budget Analysis.
VII. Regulatory Impact Statement
Pursuant to paragraph 11(b), rule XXVI of the Standing
Rules of the Senate, the Committee, after due consideration,
concludes that S. 2042 will not have direct regulatory impact.
VIII. MINORITY VIEWS OF SENATORS LEAHY, KOHL, AND FEINGOLD
i. introduction
President Clinton's August 11, 1999 offer of clemency to 16
members of the FALN, a Puerto Rican separatist group, was an
exercise of the Presidential prerogative to grant pardons. We
disagree with the President's decision and yet recognize that
the U.S. Constitution has expressly granted the President the
exclusive authority to take such action.
We believe strongly in the right of victims to be included
in all phases of the criminal process, including reviews
conducted in connection with petitions for executive clemency.
Moreover, we support efforts by the Department of Justice to
implement regulations and policies to ensure that victims are
included in the clemency process in the future.
Consequently, we share the goals of the sponsors of S. 2042
to protect victims in the clemency process. Given this
bipartisan support for the goals of the legislation, the
partisan wrapping in which this bill has been cloaked is both
unnecessary and unfortunate. Discussion about the bill should
focus not on the merits of the President's grant of clemency to
16 members of the FALN, but rather on the propriety and
constitutionality of the statute sought to be enacted.
At the time of the Judiciary Committee's reporting of this
measure without objection, it was noted that the Department of
Justice was consulting with the Chairman, Ranking Democrat and
other interested members of the Committee on improvements to
their internal guidelines, improvements that could make this
bill unnecessary. Rather than pursue those discussions, the
majority now seems obsessed with scoring a partisan legislative
victory.
Unfortunately, this bill remains a work in progress.
Serious concerns about the constitutionality and practical
effect of S. 2042 have been raised that need to be weighed
carefully. Indeed, according to the Congressional Budget Office
Cost Estimate of March 6, 2000, the bill could double the
workload of the Office of the Pardon Attorney (``OPA'') and
more than double the discretionary spending needed for that
Office.
Moreover, as discussed in more detail below, the new
statutory obligations proposed by S. 2042 could delay the
ability of the President to act independently and quickly in
those special cases which such prompt attention is warranted.
ii. factual errors in the majority report
Without dissecting or commenting on the accuracy of every
factual assertion made in the Committee Report, particularly
those not directly related to the legislation, several errors
in the majority report are deserving of correction at the
outset.
First, the Report maligns the Justice Department for
withholding information sought by the Committee on the grounds
of executive privilege. Rpt. at 4. It is worth noting that the
privilege was asserted by the President, not the Justice
Department. Tr. at 12.
Second, the Report erroneously suggests that after
receiving a petition for clemency, the Office of the Pardon
Attorney makes an initial determination whether there will be
further investigation and that for many petitions there is not.
Rpt. at 6. The Pardon Attorney detailed the procedures of his
Office at a September 13, 1999, briefing and during his October
20, 1999, testimony before the Committee. He advised that
petitions are initially assigned to a line attorney in the
Office. That attorney conducts some investigation, such as
obtaining the Judgment of Conviction, the Presentence Report
and a prison report. Tr. at 18. If the information from those
sources is deemed insufficient, or if the petition is deemed to
have some merit, further investigation is done--such as the
contacting of the appropriate United States Attorney's Office.
In short, the Pardon Attorney does some investigation in nearly
every case and significant work has frequently already been
done before a United States Attorney's Office is contacted.
Given this fact, S. 2042, as currently drafted, may well apply
to far greater numbers of cases than was apparently intended.
Third, the Report states that none of those offered
clemency ``ever filed a petition for clemency.'' Rp. at 8
(emphasis in original). As the Deputy Attorney General
(``DAG'') explained during his October 20, 1999, testimony, the
clemency petitions for the FALN members ``were filed on their
behalf by their attorney.'' Tr. at 38.
Fourth, the majority asserts that the Department's proposed
regulations ``ignore the importance of whether a potential
clemency recipient has accepted responsibility for, or feels
remorse over, criminal acts.'' Rpt. at 12. As set forth in the
guidelines already on the books, this is already a factor
considered in pardon reviews. See U.S.A.M. Sec. Sec. 1-2.111;
1-2.112(c).
Fifth, the majority claims that the bill's requirements
would ``affect only the Pardon Attorney, and would do so only
when the President decided to give a case to the Pardon
Attorney.'' Rpt. at 14. As a practical matter, nearly every
petition for executive clemency is reviewed and investigated by
the Pardon Attorney. Last year, the Pardon Attorney received
1,009 petitions for clemency, 748 of which were for
commutations and 261 of which were for pardons.
The volume of petitions has always been high. For example,
during the seven years President Clinton has been in office,
5,324 petitions were filed. President Clinton granted 146
pardons and 15 commutations. During President Bush's four years
in office, the Pardon Attorney received 1,466 petitions.
President Bush granted 74 pardons and 3 commutations. The
Pardon Attorney received 3,404 petitions during President
Reagan's eight years in office and he granted 393 pardons and
16 commutations. During President Carter's four years in
office, the Pardon Attorney received 2,627 petitions. President
Carter granted 539 pardons and 29 commutations. During
President Ford's two-and-one-half year term, the Pardon
Attorney, received 1,527 petitions. President Ford granted 382
pardons and 22 commutations. Finally, 2,592 petitions were
received during President Nixon's abbreviated two terms and he
granted 863 pardons and 60 commutations.
The Pardon Attorney advised that he was only aware of two
instances where clemency was granted outside of the Pardon
Attorney process: President Ford's pardon of Richard Nixon and
President Bush's pardon of Iran-Contra figures.
In short, this bill will affect nearly every petition for
executive clemency because no president will have the time to
review, investigate and assess the merits of hundreds of
petitions a year without the help of the Pardon Attorney.
Finally, in an attempt to defend against an assertion by
the Justice Department that the bill attempts to influence the
President's consideration of petitions for clemency, the
majority claims that the bill ``does not have either the intent
or the effect of making the President aware of certain views''
and ``does not require the Pardon Attorney to seek out or
report any particular views.'' Rpt. at 19. To the contrary, the
bill requires the Pardon Attorney to seek out the views and
opinions of ``law enforcement officials, investigators,
prosecutors, probation officials, judges, and prison officials
involved in apprehending, prosecuting, sentencing,
incarcerating, or supervising the conditional release from
imprisonment of the [petitioner]'' on a whole host of matters.
Sec. 2(c)(2)-(4). It also requires the Pardon Attorney to
determine the opinions of victims. Sec. 2(c)(1). Moreover, the
bill requires the Pardon Attorney to include as part of any
report to the President any written statement submitted by a
victim. Sec. 2(b)(2). To claim that the bill does not have the
effect of making the President aware of ``certain'' views is
disingenuous. Obviously the bill will have the effect of making
the President aware of the views of victims and may make him
aware as well of the views of all the people or institutions
listed in the bill.
iii. support for inclusion of victims in the clemency process
We have expressed concern from the outset that the views of
victims should be considered in the clemency review process. By
letter, dated September 21, 1999, to Attorney General Janet
Reno, Senator Leahy asked to be advised on this issue and
inquired whether there were procedures and policies in place to
ensure that rights of crime victims are respected in the
clemency process.
The Department of Justice responded, by letter, dated
September 29, 1999, from Acting Assistant Attorney General Jon
P. Jennings, and advised Senator Leahy that ``[t]he impact of a
crime on a victim(s) is important not only throughout trial and
sentencing, but also in considering a petition for executive
clemency.'' The letter confirmed that ``[i]n connection with
the evaluation of clemency petitions that appear to have some
merit or that raise complex factual or legal issues, the Pardon
Attorney routinely requests information, comments, and
recommendations from United States Attorneys, including, where
appropriate, information on the victim impact of a petitioner's
crime.'' The letter also pointed out that the United States
Attorneys Manual provides that United States Attorneys ``can
contribute significantly to the clemency process'' by relaying,
among other things, ``information bout the victim impact of the
petitioner's crime.'' See U.S.A.M. Sec. 1-2.111.
At the hearing of the Senate Committee on the Judiciary on
this issue on October 20, 1999, Senator Leahy again reiterated
that victims should be consulted about clemency petitions. He
also observed that even if the Department's regulations were
perfected to require such consultation, the President would
always be free to grant clemency outside of the regular
process--as President Ford did in pardoning Richard Nixon and
as President Bush did in pardoning those convicted of Iran-
Contra offenses. Tr. at 27-28.
iv. the office of the pardon attorney
As noted above, at the request of the Committee, the Pardon
Attorney, Roger Adams, conducted a briefing on September 13,
1999, to explain the policies and procedures of the office of
the Pardon Attorney. He also testified at the October 20, 1999,
hearing. The Pardon Attorney explained that the clemency review
process begins when a petition arrives at OPA. Petitions for
executive clemency are usually signed by the defendant, but may
also be signed by an attorney. Petitions are not accepted if
they are signed by third parties. Once a petition is accepted,
it is assigned to one of the attorneys within OPA for
investigation.
In the first stage of investigation, the line attorney will
obtain and review the Judgment of Conviction, the Presentence
Report prepared in conjunction with the petitioner's
sentencing, and a prison report. Legal databases are also
reviewed for any reported opinions relating to the petitioner's
conviction. According to the Pardon Attorney, ``[i]n the large
majority of cases'' the information available in these
documents is usually enough and a short report is prepared,
relayed to the Office of the Deputy Attorney General, reviewed
by that Office and then, if approved, signed by the Deputy
Attorney General and sent to the White House Counsel's Office
for review by the President Tr. at 19.
In ``a minority of cases,'' the Pardon Attorney will
conduct more extensive investigation. For instance, if the
reviewing attorney has questions, the case is a difficult one,
the case is likely to attract attention, or the information
reviewed suggests that a petition may have merit, the attorney
will seek additional information from the relevant United
States Attorney's Office (``USAO'') Tr. at 19-20. If a United
States Attorney's Office is contacted, that Office is asked for
a recommendation and a recommendation is sought from the
sentencing judge as well. Tr. at 20. The USAO is provided with
a copy of the United States Attorneys Manual section that
details the role of the United States Attorney in clemency
matters. Tr. at 19-20. As this further investigation
progresses, OPA retains any correspondence sent by the
petitioner or third parties relating to the application. If a
representative of the prisoner, such as his attorney or family
member, is willing to travel to Washington, a meeting with OPA
will be granted. Tr. at 20. Following this more extensive
investigation, a report and recommendation is drafted. The
report is then sent to the DAG's Office and, when approved,
forwarded to the President by way of the White House Counsel's
Office.
The report generated by the Pardon Attorney's Office
contains a recommendation with regard to the petition for
clemency. This recommendation is frequently, but not always, a
``yes'' or ``no'' on the question of granting clemency. In
formulating his recommendation, the Pardon Attorney typically
considers a variety of factors, including any disparity in
sentencing and any opinions of judges and United States
Attorneys.
The process of reviewing petitions for executive clemency
is extremely confidential. The Office of the Pardon Attorney
and the Department of Justice do not make public their reports
to the President, the nature of their recommendations or
documents submitted in connection with the petition. The
information and documents are not subject to disclosure
pursuant to FOIA requests and are not even disclosed to the
petitioner. Attorney General regulations do permit
disclosure``when in the judgment of the Attorney General their
disclosure is required by law or the ends of justice.'' 28 C.F.R.
Sec. 1.5.
The Deputy Attorney General testified before the Committee
that in his view the Department does ``a pretty good job in
consulting with victims'' but that it ``can do a better job.''
Tr. at 47. He agreed that the Department ``ought to think about
ways in which we can put mechanisms in place so that the
Justice Department * * * makes contact with victims and makes
that perhaps a part of our recommendation.'' Tr. at 47. The
Deputy Attorney General further explained that any such
mechanisms should be imposed upon the Justice Department as
opposed to the Office of the Pardon Attorney because the Pardon
Attorney has ``a rather small staff.'' Tr. at 47.
v. current regulations
Currently existing regulations and guidelines bear on the
executive clemency review process. Regulations pertaining to
the Department of Justice are set out in 28 C.F.R.
Sec. Sec. 1.1-1.10. These govern, inter alia, procedures to be
followed by persons filing petitions and by the Attorney
General in the review of petitions. Regulation Sec. 1.6(a)
requires the Attorney General to ``cause such investigation to
be made of the matter as he/she may deem necessary and
appropriate, using the services of or obtaining reports from,
appropriate officials and agencies of the Government * * *''.
Section 1.6(b) requires the Attorney General following the
investigation to ``report in writing his or her recommendation
to the President, stating whether in his or her judgment the
President should grant or deny the petition.'' The regulations
further specify circumstances under which a petitioner should
be advised of action taken on his petition by the President.
Section 1.10 explicitly limits the regulations as
``advisory only and for the internal guidance of Department of
Justice personnel'' and clearly states that they do not
``restrict the authority granted to the President under Article
II, Section 2 of the Constitution.''
The ``exercise of the powers and performance of the
functions vested in the Attorney General'' by the above-
described regulations has been generally delegated to the
Pardon Attorney. See 28 C.F.R. Sec. Sec. 0.35-.36.
The United States Attorneys Manual includes guidelines
about when and how United States Attorneys Offices can
contribute to the clemency review process. For instance,
U.S.A.M. Sec. 1-2.111 states:
The United States Attorney can contribute significantly
to the clemency process by providing factual
information and perspectives about the offense of
conviction that may not be reflected in the presentence
or background reports or other sources, e.g., the
extent of the petitioner's wrongdoing and the attendant
circumstances, the amount of money involved or losses
sustained, the petitioner's involvement in other
criminal activity, the petitioner's reputation in the
community and, when appropriate, the victim impact of
the petitioner's crime. On occasion, the Pardon
Attorney may request information from prosecution
records that may not be readily available from other
sources.
(Emphasis added.)
The Manual's guidelines indicate the importance given law
enforcement views on clemency petitions, stating that ``the
United States Attorney's perspective lends valuable insights to
the clemency process'' and that ``[t]he views of the United
States Attorney are given considerable weight in determining
what recommendations the Department should make to the
President.'' U.S.A.M. Sec. 1-2.111. In addition, the guidelines
indicate that in pardon cases involving prominent individuals
or notorious crimes ``the likely effect of a pardon on law
enforcement interests or upon the general public should be
taken into account.'' U.S.A.M. Sec. 1-2.112(B). In addition,
the guidelines state that ``victim impact may also be a
relevant consideration,'' id., and whether a victim ``has made
restitution to its victims'' is an ``important consideration.''
U.S.A.M. Sec. 1-2.112(C).
The Department of Justice is in the process of drafting
amended regulations, for approval by the President, that would
specifically require input from victims in the clemency review
process. These efforts should be encouraged.
vi. requirements of s. 2042
The bill would impose statutory requirements on the Pardon
Attorney with respect to investigations, notifications and
reports to the President. With respect to investigations, the
bill would require the Pardon Attorney to determine in each
case: (1) the views of victims of the offenses for which
clemency is sought on the potential grant of clemency; (2) the
views of a variety of law enforcement officials, and
prosecutors, probation officers, judges and prison officials,
on the propriety of clemency and on whether the petitioner has
expressed remorse, accepted responsibility and is a danger to
any person or society; (3) the views of relevant federal, state
or local law enforcement officials on whether the petitioner
may have information relevant to an ongoing investigation or
prosecution; and (4) the views of federal, state and local law
enforcement on the potential effect that a grant of clemency
could have ``on the threat of terrorism or other ongoing or
future criminal activity.'' Sec. 2(c) (1)-(4).
With respect to the preparation of the report and
recommendation for the President, S. 2042 would require the
Pardon Attorney to ``make available'' to the President a
written report, which (1) includes a ``description of the
efforts'' made by the Pardon Attorney to satisfy the
investigative steps detailed above and to make the required
notifications; and (2) attaches any written statements
submitted by victims. Sec. 2(b)(1)-(2).
With respect to notifications, the bill would require the
Pardon Attorney to notify relevant victims of (1) the
``undertaking by the Pardon Attorney of any investigation of a
potential grant of executive clemency in a particular matter or
case;'' (2) the ``making available'' of the Pardon Attorney's
report to the President; and (3) the decision of the President
on the petition. Sec. 2(d) (emphasis added).
S. 2042 contains a provision that purports to exclude from
the bill's reach ``any petition or other request for executive
clemency that, in the judgment of the Pardon Attorney, lacks
sufficientmerit to justify investigation, such as the
contacting of a United States Attorney. ``Sec. 2(f).
Finally, S. 2402 directs the Attorney General to promulgate
regulations governing the required procedures within 90 days.
Sec. 2(g).
vii. the constitutional questions
The Department of Justice has reviewed S. 2042 as it was
introduced and concluded that it is unconstitutional. The
Department's views in this regard were relayed in a letter
dated February 17, 2000 to Chairman Hatch by Assistant Attorney
General Robert Raben.
The principal of constitutional flaw of the bill, according
to the Department, is that it would impermissibly infringe on
the exclusive pardon power of the President by directly and
indirectly influencing the information to be considered by him
in the review process. Tracing the history of the pardon power,
the Department notes that ``the Framers debated, and rejected,
possible limitations on the President's authority to grant
pardons. A proposal to restrict the President's pardon power by
requiring consent of the Senate to pardon decisions was soundly
defeated.'' Raben letter at p. 3 (citing 2 Max Farrand, The
Records of the Federal Convention of 1787 419 (rev. Ed. 1966)).
The Justice Department concludes that ``by mandating that the
Attorney General make a report available to the President
whenever he seeks her advice regarding a clemency petition that
is not, in the Attorney General's opinion, patently frivolous,
the bill is fundamentally inconsistent with the Framers'
decision to exclude Congress from the pardon process.
Similarly, by requiring victim notification of various
intermediate steps in the clemency review process, the bill
seeks to influence the Presidents consideration of clemency.''
Raben letter at 3.
The Department further argues that ``[t]he fact that the
bill does not require the Attorney General to submit any of the
statutorily required information to the President, and instead
requires only that she make such information available to him,
does not eliminate the constitutional infirmity.'' Raben letter
at 4. The Justice Department argues that the bill, in violation
of the Opinions Clause, U.S. Const. art. 2 Sec. 2, ``may
unconstitutionally condition the President's power to obtain
opinions from his principal officers by requiring that the
Attorney General undertake a detailed investigation to gather
and make available to the President specific information each
time he seeks her advice'' in a clemency matter. Raben letter
at 6.
The majority takes issue with Department's legal analysis
and factual assumptions about the effect of S. 2042. The
Committee Report relies on the opinions of Professor Akhil Reed
Amar and Paul G. Cassell in support of its position that the
bill is not constitutionally flawed.
Professor Cassell has asserted in his letter of February
22, 2000, that the bill is constitutional, essentially because
it ``only applies when the President chooses to delegate to the
Pardon Attorney the responsibility for initially investigating
a clemency request,'' Cassell letter at 5, and ``does not
regulate or frustrate the President's deliberation over
pardons.'' Cassell letter at 6.
Professor Amar, who, like the Justice Department, had
apparently reviewed S. 2042 prior to the committee technical
amendment, states in his letter of February 23, 2000 that the
``Raben letter makes some good points; but overstates its case.
* * * I think the bill can rather easily be modified to avoid
constitutional difficulties. I conceded that even with my
proposed modifications, it is possible--though unlikely, I
think--that a Supreme Court majority might somehow conclude
that the modified version should be invalidated.'' Amar letter
at 2. Amar believes that any such conclusion, however, would be
erroneous.
Professor Amar concludes that the first potential
constitutional problem--that it ``might be seen to infringe the
President's pardon power''--could be cured if S. 2042 were to
regulate the Pardon Attorney directly, instead of the Attorney
General and include language clarifying that the bill would not
``limit the ability of the President to seek advice directly
from the Attorney General, or any informal advisor, regarding
any pardon matter.'' Amar letter at 3 (internal quotation
omitted.) Professor Amar believes that with theses changes,
which were made by technical amendment, S. 2042 would be more
likely to be upheld as constitutional, although he concedes;
``Granted, this statue might at times discourage the President
from involving the Pardon Attorney. And this discouragement
might perhaps be unwise as a matter of policy.'' Amar letter at
3.
Professor Amar also raises a second potential
constitutional infirmity--the potential violation of the
Opinions Clause and the President's right to get information
from his Cabinet officers. According to Professor Amar, the
President's unfettered freedom ``to brainstorm with a trusted
cabinet member in a confidential setting is a valuable part of
the American Presidency, and should not lightly be altered.''
Amar letter at 5. Furthermore, the President should be free
``to seek advice about pardons from any informal advisor of his
choice--his spouse, his pollster, his chief of staff. his best
friend, his Cabinet Secretary, his favorite Senator, etc.''
Amar letter at 3.
Nevertheless, Professor Amar opines that the Constitution
would allow Congress to regulate what the Pardon Attorney is
required to tell the President but not what the Attorney
General must tell the President, drawing a fine constitutional
distinction between regulating the Attorney General and
regulating the Pardon Attorney. Amar letter at 5. He thus
concludes that his proposed modifications would cure this
potential constitutional infirmity.
Professor Amar raises yet a third concern. He states:
``Were the bill to pass without significant support from
members of both parties, the result would in my judgment be
constitutionally unfortunate. This is an important bill that
seeks to modify the structure of executive department and to
adjust the current mode by which the President often exercises
an important constitutional power.'' Amar letter at 5.
Finally, Armar urges the majority to invite further
comments from the Justice Department if his suggested
modifications are adopted and notes that ``giving the
Department a chance to review the revised bill would give me
more confidence that may proposed revisions would indeed do the
trick.'' Amar letter at 5. This has not been done.
Accordingly, the debate over the potential constitutional
and policy pitfalls of this bill is ongoing, underscoring the
fact that it remains a work in progress.
viii. further considerations in light of the preston king pardon
On February 21, 2000, Preston King was granted a timely
pardon by President Clinton, which allowed him to return to the
United States for the funeral of his brother, civil rights
activist Clennon W. King Jr.
Preston King, a professor at the University of Lancaster in
Britain, was prosecuted in 1961 for the kind of civil
disobedience that our country now views as the crux of the
civil rights movement. Almost four decades ago, Mr. King
refused to report for an Army physical until an all-white draft
board in Albany, Georgia addressed him as ``mister,'' as they
did white draftees. The draft board, which had first addressed
him as ``Mr. Preston King'' had begun to address him as
``Preston'' upon learning he was black. For his refusal to
submit to this type of state-sponsored discrimination, Mr. King
was convicted of draft evasion and sentenced to 18 months in
prison. He fled the United States 39 years ago before serving
his sentence.
The American public has accepted the timely pardoning of
Preston King as a just and worthy exercise of the President's
exclusive right to grant clemency. Indeed, even the judge who
presided over Mr. King's case in 1961 called for this pardon.
In statements to the press, the White House has said that
President Clinton took into account all of the circumstances
surrounding this matter and came to the conclusion that
clemency was warranted.
President Clinton was able to exercise his discretion in an
unfettered manner in the King case. He apparently acted
speedily to ensure that Mr. King could attend the funeral in
the United States of his brother without fear of arrest. As we
continue to refine S. 2042 and consider its merits, we should
all remember that some requests for pardons are plainly
meritorious and deserve the President's quick attention,
without unforeseen and unintentional impediment from this bill.
We should consider whether the statutory obligations to be
imposed by S. 2042 could inadvertently delay the ability of the
President to act independently and quickly in those special
cases when his quick attention is warranted.
ix. conclusion
Although we disagreed with the President's decision on
offering clemency to 16 FALN members, we recognize that the
power to grant pardons is constitutionally vested exclusively
in the unfettered discretion of the President. That being said,
we support the rights of all victims to be included in all
phases of the criminal process, including in clemency reviews,
and encourage the Department of Justice to continue its efforts
to amend its regulations to ensure greater participation of
victims in the clemency review process.
Rather than approach this matter as an improvement to the
process used by Republican and Democratic President alike in
order to better include the views of crime victims, the
majority insists on packaging this matter in starkly partisan
terms. That is both unfortunate and unnecessary.
The version of S. 2042 reported by the Committee raises a
number of significant constitutional and practical problems.
Addressing these problems in a constructive and bipartisan
manner has been unnecessarily complicated by the partisan
attacks on the President, his wife, the Attorney General and
the Pardon Attorney stemming from the FALN clemencies.
Patrick Leahy.
Herb Kohl.
Russ Feingold.
IX. Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, the Committee finds no changes in
existing law caused by passage of S. 2042.