Where Are the Obama Pardons?

President Obama rightfully noted the injustice leading to so many people, largely people of color, thrown in prison for long periods of time because of drug crimes. He wanted to pardon many of them. But that hasn’t happened, despite a few yesterday. This led to the resignation of the attorney in charge of the process a few days ago. Why? This is a good piece on the limits of rapid presidential action on complex issues like this.

The pardon office didn’t have the resources it needed to process all the applications it was receiving. Partly this is the fault of Congress, which responded to the Obama administration’s moves in 2014 by trying to defund them. As a result, the office couldn’t hire the extra attorneys it needed to process the new petitions coming in. That’s what Leff’s letter was referring to when she says that “the requests of thousands of petitioners seeking justice will lie unheard.”

But this isn’t entirely Congress’s fault. Leff says she’s been “instructed to set aside thousands of petitions for pardon and traditional commutation” in order to look at the applications the Obama administration asked prisoners to send in 2014. The letter makes it seem that the Obama administration was already dealing with a backlog when it solicited thousands of new applications, without a plan for how it was actually going to process either the new ones or the existing ones.

The pardon attorney didn’t have enough of a role in the pardon process. The president makes the final decision on all pardons and commutations. But before an application reaches the president’s desk, a recommendation is made by the pardon attorney, then by the White House Counsel.

Leff, however, writes that she didn’t have any access to the White House Counsel’s office to explain her recommendations. Furthermore, she says, in an “increasing number of cases,” the Department of Justice “reversed our recommendations.” Given the stinginess of commutations so far, it’s reasonable to assume this means the Department of Justice has been stepping in to recommend that commutations be denied, even when the pardon attorney’s office says they should be granted.

In other words, the president is not all-powerful and big initiatives like this take a lot of resources and attention. The president saying he support something can get a ball rolling, but it can’t go very far without a lot of resources in the face of other parts of the government protecting their own interests by resisting.