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PORTSIDE  December 2011, Week 2

PORTSIDE December 2011, Week 2

Subject:

Presidential Pardons Heavily Favor Whites

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Mon, 12 Dec 2011 00:28:41 -0500

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Presidential Pardons Heavily Favor Whites
by Dafna Linzer and Jennifer LaFleur
ProPublica
December 3, 2011
http://www.propublica.org/article/shades-of-mercy-presidential-forgiveness-heavily-favors-whites

[moderator: the link will also take you to part two
of the story and several valuable sidebars]

First of two parts. Part two here. This story was co-
published with The Washington Post.

White criminals seeking presidential pardons over the
past decade have been nearly four times as likely to
succeed as minorities, a ProPublica examination has
found.

Blacks have had the poorest chance of receiving the
president's ultimate act of mercy, according to an
analysis of previously unreleased records and related
data.

Current and former officials at the White House and
Justice Department said they were surprised and dismayed
by the racial disparities, which persist even when
factors such as the type of crime and sentence are
considered.

"I'm just astounded by those numbers," said Roger Adams,
who served as head of the Justice Department's pardons
office from 1998 to 2008. He said he could think of
nothing in the office's practices that would have skewed
the recommendations. "I can recall several African
Americans getting pardons."

The review of applications for pardons is conducted
almost entirely in secret, with the government releasing
scant information about those it rejects.

ProPublica's review examined what happened after
President George W. Bush decided at the beginning of his
first term to rely almost entirely on the
recommendations made by career lawyers in the Office of
the Pardon Attorney.

The office was given wide latitude to apply subjective
standards, including judgments about the "attitude" and
the marital and financial stability of applicants. No
two pardon cases match up perfectly, but records reveal
repeated instances in which white applicants won pardons
with transgressions on their records similar to those of
blacks and other minorities who were denied.

Senior aides in the Bush White House say the president
had hoped to take politics out of the process and avoid
a repetition of the Marc Rich scandal, in which the
fugitive financier won an eleventh-hour pardon tainted
by his ex-wife's donations to Democratic causes and the
Clinton Presidential Library.

Justice Department officials said in a statement Friday
that the pardon process takes into account many factors
that cannot be statistically measured, such as an
applicant's candor and level of remorse.

"Nonetheless, we take the concerns seriously," the
statement said. "We will continue to evaluate the
statistical analysis and, of course, are always working
to improve the clemency process and ensure that every
applicant gets a fair, merit-based evaluation."

Bush followed the recommendations of the pardons office
in nearly every case, the aides said. The results,
spread among hundreds of cases over eight years, heavily
favored whites. President Obama -- who has pardoned 22
people, two of them minorities -- has continued the
practice of relying on the pardons office.

"President Obama takes his constitutional power to grant
clemency very seriously," said Matt Lehrich, a White
House spokesman. "Race has no place in the evaluation of
clemency evaluations, and the White House does not
consider or even receive information on the race of
applicants."

The president's power to pardon is enshrined in the
Constitution. It is an act of forgiveness for a federal
crime. It does not wipe away the conviction, but it does
restore a person's full rights to vote, possess firearms
and serve on federal juries. It allows individuals to
obtain licensing and business permits and removes
barriers to certain career opportunities and adoptions.

To assess how the pardons office selects candidates for
pardons, ProPublica interviewed key officials, obtained
access to thousands of pages of internal documents and
used statistical tests to measure the effects of race
and other factors on the outcome.

From 2001 to 2008, Bush issued decisions in 1,918 pardon
cases sent to him by the Justice Department, most
involving nonviolent drug or financial crimes. He
pardoned 189 people - all but 13 of whom were white.
Seven pardons went to blacks, four to Hispanics, one to
an Asian and one to a Native American.

Fred Fielding, who served as Bush's White House counsel,
said the racial disparity "is very troubling to me and
will be to [Bush], because we had no idea of the race of
any applicant."

"The names were colorblind to us," Fielding said, "and
we assumed they would be at all levels of clemency
review."

Beginning in September 2010, the Justice Department was
required to make available the names of people denied
pardons. Bush's pardon decisions were selected to
examine the impact of the pardons office's
recommendations over a president's full term and to test
how well the office met the president's goal of assuring
fairness in the process.

The department does not reveal race or any additional
information that would identify an applicant, citing
privacy grounds. To analyze pardons, ProPublica selected
a random sample of nearly 500 cases decided by Bush and
spent a year tracking down the age, gender, race, crime,
sentence and marital status of applicants from public
records and interviews.

In multiple cases, white and black pardon applicants who
committed similar offenses and had comparable post-
conviction records experienced opposite outcomes.

An African American woman from Little Rock, fined $3,000
for underreporting her income in 1989, was denied a
pardon; a white woman from the same city who faked
multiple tax returns to collect more than $25,000 in
refunds got one. A black, first-time drug offender -- a
Vietnam veteran who got probation in South Carolina for
possessing 1.1 grams of crack - was turned down. A
white, fourth-time drug offender who did prison time for
selling 1,050 grams of methamphetamine was pardoned.

All of the drug offenders forgiven during the Bush
administration at the pardon attorney's recommendation -
34 of them - were white.

Turning over pardons to career officials has not removed
money and politics from the process, the analysis found.
Justice Department documents show that nearly 200
members of Congress from both parties contacted the
pardons office regarding pending cases. In multiple
instances, felons and their families made campaign
contributions to the lawmakers supporting their pleas.
Applicants with congressional support were three times
as likely to be pardoned, the statistical analysis
shows.

In reviewing applicants, pardon lawyers rely on their
discretion in ways that favor people who are married and
who have never divorced, declared bankruptcy or taken on
large amounts of debt. The intent, officials say, is to
reward people who demonstrated "stability" after their
convictions. But the effect has been to exclude large
segments of society.

The ProPublica data show that applicants whose offense
was older than 20 years had the best odds of a pardon.
Married people, those who received probation rather than
prison time, and financially stable applicants also
fared better. When the effects of those factors and
others were controlled using statistical methods,
however, race emerged as one of the strongest predictors
of a pardon.

The most striking disparity involved African Americans,
who make up 38 percent of the federal prison population
and have historically suffered from greater financial
and marital instability. Of the nearly 500 cases in
ProPublica's sample, 12 percent of whites were pardoned,
as were 10 percent of Hispanics.

None of the 62 African Americans in the random sample
received a pardon. To assess the chances of black
applicants, ProPublica used the sample to extrapolate
the total number of black applicants and compare it with
the seven blacks whom Bush pardoned. Allowing for a
margin of error, this yielded a pardon rate of between 2
percent and 4 percent.

Roger Adams served as head of the Justice Department's
pardons office from 1998 to 2008. (Katherine Frey/The
Washington Post)

Adams, the head of the pardons office under Bush, said
applicants were not penalized based on race. In fact,
Adams went out of his way, he said, to help black
applicants.

"People in general more and more feel that it is
appropriate to give extra consideration to a member of a
minority group," he said.

Applicants are not asked about their race. But race is
listed in many of the law enforcement documents
collected for the application, including pre-sentence
reports, rap sheets and Federal Bureau of Prisons
records.

Under Justice Department regulations, Adams said,
lawyers in the pardons office conduct a rigorous review
of an applicant's offense. They then examine character,
reputation and post-conviction behavior - tests of what
Adams termed "attitude."

"Is the person seeking a pardon for forgiveness or
vindication?" Adams said. "Are they going to wave a flag
around that says a pardon proves they didn't do as bad
as the government said?" If so, he said, "it is counted
against them."

Samuel Morison, a lawyer who worked in the pardons
office for 13 years, said there is an institutional
interest in preserving the convictions secured by the
government's prosecutors.

"The pardon office is not a neutral arbiter, because the
Justice Department was a party to every criminal case it
examines," Morison said.

The yardsticks used by the office under Adams continue
to be used under his successor, Ronald L. Rodgers, a
former federal prosecutor and military judge.

Theodore B. Olson, a former solicitor general who has
represented high-profile pardon applicants, said he has
long been frustrated by the slow pace of the process and
its lack of transparency. The Justice Department says
the office has increased its efficiency, deciding cases
in a little more than two years, an improvement since
2005, when the wait was twice that.

When a pardon is denied, the notice comes with no
explanation.

"It just comes out of the blue," Olson said. "You can't
explain to your client why, especially when you think
you've made a strong case."

Parallel Cases, Disparate Outcomes

Denise Armstead's beauty salon sits on a busy corner in
Little Rock's west side. A big sign out front beckons
customers from the largely African American
neighborhood.

Armstead, who is black, became a hair stylist straight
out of high school and dreamed of owning her own salon.
Like many small-business owners, she kept her own
receipts. An accountant filled out her tax forms.

In 1994, the federal government accused Armstead, then
35, of failing to report $32,000 in income over four
years. She hired a lawyer and fought the charges,
ultimately getting them reduced to a single count of
under-reporting her income in 1989.

Her lawyer, a former Internal Revenue Service employee,
advised that a trial would cost more than the $3,000
fine, she said. In a plea bargain, she received three
years' probation and paid the fine in installments.

In the same city, Margaret Leggett and her husband, who
are white, were also accused of violating federal tax
laws. In 1981, Leggett rented an apartment under a
fictitious name and her husband created a fake bank
account and fake Social Security numbers. They then
filed for multiple tax refunds totaling more than
$25,000.

Leggett pleaded guilty to conspiracy to defraud the
government by making false claims. In her mid-30s, she
was sentenced to three years in prison but was released
after three months. Her husband paid a $5,000 fine and
served 15 months in prison.

Years later, Armstead and Leggett each applied for a
pardon. On paper, both were strong candidates. They had
accepted responsibility in court and completed their
sentences with good behavior.

Neither had any other criminal convictions. Both were
active in their churches. Leggett and Armstead had both
filled out lengthy applications in which they listed
their crime, punishment and professional and personal
history.

In April 2006, Bush followed the pardon attorney's
recommendation and approved a pardon for Leggett. A year
later, Bush again followed the attorney's advice and
turned down Armstead.

Armstead had a personal reason for seeking a pardon: She
had hoped to become a nurse. She was inspired to change
professions while caring for her mother, who was dying
of renal failure.

"I would take off work and take her to the clinic," she
said.

An Arkansas nursing license requires a criminal-
background check. Her felony record stood as a potential
obstacle, her attorney told her. He recommended she
apply for a presidential pardon. She was not aware that
her 2002 request had been denied until a reporter
informed her this year.

According to Justice Department memos, Armstead was
denied "for a four-year course of criminal conduct for
which [she] failed to take responsibility." The four
years referred to the four charges of tax evasion in the
original indictment against her.

Adams said that he did not remember Armstead's case but
that, in general, applicants need to show remorse for
any conduct they were indicted for, not just the charges
to which they pleaded guilty.

"What the person did, as opposed to what they pled
guilty to, is a relevant factor in judging how honest
they are," Adams said. "This spills over to attitude."

A former White House lawyer said he had no idea the
pardons office was considering indictments rather than
only convictions in their deliberations.

"I definitely didn't know that," said Kenneth Lee, the
associate White House counsel during Bush's second term
who dealt with the pardons office. "If we knew these
kinds of things, our decision making may have been
different."

Leggett lives with her husband in Hot Springs, Ark.,
where they own a boat repair shop. She said she did not
remember why she sought the pardon.

Kenneth Stoll prosecuted both Armstead and Leggett when
he was an assistant U.S. attorney in Little Rock. Stoll
said he does not recall either woman. The pardons office
sought a recommendation for Leggett from the
prosecutors' office after Stoll had retired. He was not
asked his opinion. But, he says now, Leggett's crime was
a more significant offense.

Leggett and her husband have been married for more than
30 years. They have owned or operated nearly a dozen
businesses.

Though she was divorced when she applied for a pardon,
Armstead would still appear to meet the "stability"
test. She said her life has remained on an even keel --
she continues to operate her beauty salon and does not
have excessive debts.

For applicants who appear to be solid candidates, the
pardons office considers the views of prosecutors and
judges. Armstead's case never reached that stage.

But the pardons office solicited advice on Leggett - and
received lukewarm answers.

The U.S. attorney's office in Little Rock took no
position, and the judge did not object to a pardon. But
Leggett's bid was opposed by a high-ranking Justice
Department official. Eileen J. O'Connor, the assistant
attorney general in charge of all criminal tax matters,
advised the pardons office that Leggett's application
should be denied because she did not "fully admit
unconditional responsibility" for her crime.

O'Connor noted that Leggett omitted from her pardon
application that she had rented the apartment under a
false name and made a utility deposit as part of the
ruse to file false returns.

"It appears that she has attempted in her quest for a
pardon to minimize her involvement in the crime and
shift the blame to her husband," O'Connor wrote.

This could have posed a serious problem for Leggett. The
Justice Department explicitly states that applicants
need to take personal responsibility for their crimes
and show remorse.

But in this instance, pardons office lawyers appear to
have accepted what Leggett's husband said at trial,
which is that he had talked his wife into participating
in the scheme.

Another factor in pardon applications is whether the
person has a practical need for presidential mercy.

"If a person doesn't have a reason, it doesn't hurt,"
Adams said of the policy. "And if a person wants
forgiveness, that is fine, but if the need is for
licensing or business ownership or to obtain a
franchise, that will help, and the office will try to
push it farther."

But that did not help Armstead.

An Obscure Office

The declared intent of the Founding Fathers was to have
presidential pardon power right miscarriages of justice.
Former Supreme Court chief justice William H. Rehnquist
called pardons a "fail safe" against the "unalterable
fact that our judicial system, like the human beings who
administer it, is fallible."

Today, the pardons office places little emphasis on
trying to help those who might be innocent. Applicants
who claim they were victims of unjust treatment "bear a
formidable burden of persuasion," the pardons office
says on its Web site. In practice, officials say, that
burden is insurmountable.

Article II of the Constitution gives presidents the
authority to "grant reprieves and pardons for offenses
against the United States." It was among the few royal
powers carried over from the British monarchy. In 1788,
Alexander Hamilton wrote in Federalist No. 74 that the
president would be the best "dispenser of the mercy of
government." Groups of men, he argued, were too easily
swayed by popular passions.

In 1893, Grover Cleveland issued an executive order
delegating the paperwork on pardons to a single office
inside the Justice Department. Today, the office employs
a lead pardon attorney, a deputy and four additional
lawyers. They review hundreds of pardon applications a
year.

Leggett and Armstead's applications reached Washington
just as this office gained more clout than it ever had.

Marc Rich, seen here in a photo taken in November 1998,
was pardoned by President Clinton on his last day in
office. The decision caused an uproar once it was
reported that Rich's ex-wife had donated almost half a
million dollars to the Clinton presidential library.
(Guido Roeoesli/AFP/Getty Images)

The reason could be traced to one of President Bill
Clinton's last acts, his pardon of Marc Rich. The
decision became a scandal after reports that Rich's
former wife, a big Democratic donor, gave $450,000 to
the Clinton Presidential Library. In congressional
hearings that followed, it emerged that Eric H. Holder
Jr., then deputy attorney general, had encouraged Rich's
attorneys to apply directly to the White House.

In response, the incoming Bush administration vowed that
the pardons office would vet every applicant.

The office lists on its Web site a five-point test for
applicants. The first test is straightforward:
Candidates must wait five years after completion of
their sentences before applying.

Next, lawyers consider the "conduct, character and
reputation" of applicants after they served their
sentences. The third point is the need of the applicant,
and the fourth is the opinion of prosecutors and judges.

The final point is acceptance of responsibility for
their crimes, remorse and atonement.

Pardons office lawyers assess whether applicants lead
what Adams called "stable" lives. An applicant who had
been divorced would give pause. Owing excessive debt to
credit card companies or banks - as many Americans do -
could also be a red flag.

"A person in debt is always in some risk of doing
something inappropriate to get out of it," Adams said.
"It's only natural for the office to be a little
cautious."

A review of pardons cases found that some applicants
were rejected because they had filed for bankruptcy in
the years after their conviction or were unemployed, a
situation that is not unusual for convicted criminals,
who often have trouble rebuilding their lives.

But Bush pardoned white applicants who had filed for
bankruptcies, had driven drunk or had illegally
possessed firearms. Two successful applicants lied to
the FBI during the background checks that are part of
the application process.

A Choke Point

By Bush's second term, it was clear that putting
decisions in the hands of the pardons office had
dramatically slowed the flow of pardons. Elected as a
"compassionate conservative," Bush was on pace to become
the least-forgiving two-term president in history.

In 2006, White House Counsel Harriet Miers became so
frustrated with the paucity of recommended candidates
that she met with Adams and his boss, Deputy Attorney
General Paul McNulty.

Adams said he told Miers that if she wanted more
recommendations, he would need more staff. Adams said he
did not get any extra help. Nothing changed.

"It became very frustrating, because we repeatedly asked
the office for more favorable recommendations for the
president to consider," said Fielding, who was Bush's
last White House counsel. "But all we got were more
recommendations for denials."

In 2007, the pardons office was hit with its own
scandal.

Nigerian-born Chibueze Okorie, at The Church of
Gethsemane, in Park Slope, Brooklyn, N.Y., where he has
ministered for two decades. (Dan Nguyen/ProPublica)

Adams had opposed a pardon for Chibueze Okorie, a
Nigerian-born minister beloved by his Brooklyn church.
Okorie faced deportation because of a 1992 conviction
for possessing heroin with intent to distribute.

"This might sound racist," Adams told colleagues,
according to a report from the Justice Department's
inspector general, but Okorie is "about as honest as you
could expect for a Nigerian. Unfortunately, that's not
very honest."

When asked by investigators in the inspector general's
office to explain his remarks, Adams said that Nigerian
immigrants "commit more crimes than other people" and
that an applicant's nationality is "an important
consideration" in pardons, according to the report.
"It's one the White House wants to know about," Adams
told investigators.

The inspector general's office disagreed.

"We believe that Adams' comments - and his use of
nationality in the decision-making process - were
inappropriate," the report concluded. "We were extremely
troubled by Adams' belief that an applicant's 'ethnic
background' was something that should be an 'important
consideration' in a pardon decision."

Adams said his comments about Okorie were focused on his
ethnicity, not his race, and were taken out of context
by the inspector general's office.

Adams left his post and retired. He was replaced in
April 2008 by Rodgers, a former military judge who had
prosecuted major drug crimes for the Justice
Department's criminal division. Shortly after taking
over, Rodgers hired the office's first African American
staff attorney.

As the Bush presidency drew to a close, the inability to
grant more pardons continued to vex White House
officials. Throughout 2008, the White House sent e-mails
to the pardons office asking for more candidates. White
House lawyers repeatedly asked the office to reconsider
cases in which it had recommended denials.

On Sept. 16, 2008, Lee, the associate White House
counsel, asked about two pending applicants whose
attorneys had contacted the White House.

"As noted previously, we are hoping to get as many
clemency recommendations as possible over the next few
months," Lee wrote. "To the extent that these two
petitions may be 'easy' cases (and I defer to you on
that question), it would be helpful if these and other
'easy' cases are given priority."

Rodgers forwarded the e-mail to a staff attorney with a
warning to ignore anything in Lee's note that "could be
construed as armchair quarterbacking."

With no more than 30 recommendations from the pardons
office by the fall, the White House pushed to reverse
two denials, Lee and others said in interviews. Then it
did something Bush had vowed to avoid, taking up a
pardon application from a felon whose case had not been
reviewed by the pardon attorney.

Isaac Toussie, a New York developer and Republican
political donor, pleaded guilty in 2001 and 2002 to mail
fraud and a real estate scheme in which false documents
had been submitted to allow low-income buyers to obtain
insured mortgages from the Department of Housing and
Urban Development. Toussie served five months in prison,
another five months of home detention and three years of
supervised release. He also paid a $10,000 fine.

Toussie had not waited the requisite five years, but one
of his attorneys, Bradford Berenson, had been an
associate White House counsel during Bush's first term.
Berenson took Toussie's case directly to the White House
- and it worked. On Dec. 23, 2008, Toussie's name was on
the final list of pardons granted by Bush.

That action sparked fury among hundreds of New Yorkers
who were involved at the time in a civil litigation suit
against the Toussie family over a second real estate
project.

After eight years of caution on pardons, Bush had
stumbled. On Dec. 24, 2008 - four weeks before Obama's
inauguration -- Bush became the first president to
announce withdrawal of a pardon.

Bush left office having denied more than twice as many
applicants as Clinton. Richard Nixon pardoned more
people in a single year than Bush pardoned during two
full terms.

Second Chances

Then-President-elect Obama and President Bush leave the
White House for the limousine ride to the Capitol for
Obama's inauguration on Jan. 20, 2009. (Mandel
Ngan/AFP/Getty Images)

In the final hour of his presidency, Bush confided to
Obama his deep frustrations with the pardon process. In
the limousine ride the two men shared up Pennsylvania
Avenue on Inauguration Day, Bush offered his successor
this piece of advice: "Announce a pardon policy early on
and stick to it."

Bush wrote in his memoir that he had been besieged by
last-minute pardon requests from politically connected
people who did not go through the pardons office.

"At first I was frustrated," he wrote. "Then I was
disgusted. I came to see massive injustice in the
system. If you had connections to the President, you
could insert your case into the last-minute frenzy.
Otherwise, you had to wait for the Justice Department to
conduct a review and make a recommendation."

Bush resolved to rebuff the personal requests.

The incoming administration needed little prodding on
this issue. Obama's top legal advisers already were
convinced that the pardon system put the poor at a
disadvantage. Gregory Craig, who would become Obama's
White House counsel, said he began raising the
possibility of reform during the transition.

Craig said pardons were "clearly much more available to
people with economic means than those without."

Working with then-Deputy Attorney General David Ogden,
Craig developed a plan to take the vetting of pardon
applicants away from career prosecutors.

"I couldn't completely understand the standards being
applied by the pardons office," Ogden said in an
interview. "They seemed very subjective in some cases,
and I thought the standards should come from the
president, not from the pardons office."

Craig said he believes pardon applications should be
sifted by an independent commission of former judges,
prosecutors, defense attorneys and representatives of
faith-based groups. The commission would make
recommendations directly to the president.

Officials envisioned a process in which the president
would announce decisions quarterly instead of the
traditional grants at Thanksgiving and Christmas. A team
of lawyers also suggested that the president explain his
decisions, to build confidence in the process and
encourage people to apply.

Officials were struck by comparisons between the federal
system and those of the states. Depending on the state,
pardons can be granted by governors, legislatures or
state pardon boards. During the period in which Bush
pardoned 189 people, Pennsylvania pardoned more than
1,000.

Several states have adopted the practice of explaining
their decisions. Virginia issues public notices praising
specific aspects of an applicant's rehabilitation.

Obama officials believed changes in the pardon system
could be made by executive order. But two years later,
pardon reform efforts were dead. The effort faded away
as its key proponents, Ogden and Craig, left the
administration.

"We just never got there before I left," said Ogden, who
resigned in 2010.

The pardons office continues to function much as it did
under Bush, with Obama pardoning only applicants
recommended by the office. Obama has denied 1,019 pardon
requests, more than Clinton denied during his two terms.

Post researcher Julie Tate and ProPublica researchers
Liz Day and Robin Respaut contributed to this report.

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