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