Sunday, January 12, 2014

Guest Column: Obama, Pa. governors are throttling clemency

MATTHEW T. MANGINO, Times Guest Columnist
Delaware County Daily Times
January 6, 2014

The holidays are over and the season was full of surprises -- none more than President Barack Obama’s decision a week before Christmas to exercise his rarely used authority to forgive. On Dec. 19, the president issued 13 pardons representing a quarter of all pardons granted during his five years in office.
President Obama is, as were the 43 presidents who preceded him, empowered by Article II, Section 2 of the U.S. Constitution, “to grant reprieves and pardons for offenses against the United States.”

As President Bill Clinton wrote in the New York Times more than a decade ago, “A president may conclude a pardon or commutation is warranted for several reasons: the desire to restore full citizenship rights, including voting, to people who have served their sentences and lived within the law since; a belief that a sentence was excessive or unjust; personal circumstances that warrant compassion; or other unique circumstances.”

A ProPublica analysis of Justice Department statistics last November found that President Obama had granted pardons at a lower rate than presidents Ronald Reagan, George H.W. Bush, Bill Clinton, or George W. Bush had at the same point in their administrations.

President Obama has pardoned only 52 people. President Harry S. Truman pardoned 1,537 people. In fact, Truman pardoned his first prisoner eight days after taking office -- an office he assumed by the death of Franklin Delano Roosevelt, not through an election. In contrast, according to the New York Times, President Obama waited 682 days into his presidency before using his power.

President Obama is not to be blamed for clemency falling out of vogue. The demise of the pardon is a byproduct of being “tough on crime.” Draconian sentencing laws driven by the war on drugs, prisons bursting at the seams, and a never-ending parade of new laws criminalizing everything imaginable are also evidence of a system run amok.

The first Supreme Court case to address a president’s power to pardon defined it as “an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed.”

This “act of grace” has been used by presidents and governors to right wrongs, provide a ray of hope to those imprisoned and to empower elected leaders to forgive, to bestow a sense of decency and empathy for those in prison who are sick and dying.

President Obama is not the only executive throttling clemency. In Pennsylvania, clemency for serious offenders, no matter how long ago their crimes, has all but disappeared.

Article IV, Section 9 of the Pennsylvania Constitution vests exclusive authority in the governor to grant reprieves, commutations and pardons. The governor may exercise the authority for any reason or no reason at all—with the exception of capital cases and sentences of life in prison. In those cases, the governor can only commute or pardon upon receipt of a unanimous recommendation from the Pennsylvania Board of Pardons.

It was not always like that in Pennsylvania. In 1994, Gov. Robert P. Casey paroled Reginald McFadden, who was serving a life sentence for murdering an elderly Philadelphia woman. By a 4-1 vote, the Board of Pardons recommended clemency for McFadden.

Not long after his release, McFadden murdered two more people in New York.

According to the Philadelphia Inquirer, the news broke a month before the 1994 gubernatorial election, and was credited in part for Tom Ridge’s victory over then-Lt. Gov. Mark Singel, who had been among the pardons board members voting for McFadden’s release.

Between 1971 and 1994, there were on average 12 life sentences per year commuted. Since 1995, there have been six. Gov. Ed Rendell commuted five life sentences, Gov. Mark Schweiker commuted one, Gov. Tom Ridge zero and Gov. Tom Corbett has yet to commute a life sentence.

There is no question that the power to pardon has been abused in the past. The seemingly arbitrary manner in which a president or governor can act in matters of clemency has fueled a disdain for this unique authority.

However, the corrective powers of the pardon when used in a principled and honorable fashion has the capacity to redeem the authority of the justice system and instill an element of compassion in an otherwise impersonal, callous and mechanical system.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book, “The Executioner’s Toll, 2010” is due out this summer. You can reach him at and follow him on Twitter @MatthewTMangino.

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