03 February 2009

George W. Bush Short On Forgiveness and Mercy

All of the 189 pardons granted by George W. Bush were granted merely relieved an individual of the collateral effects of a crime for which the sentence was fully served, in 170 cases, for minor offenses producing sentences of not more than two years in prison, and almost two-thirds of the time after a sentence including no prison time at all.

Seventeen more pardons were for drug offenses that carried longer sentences, and eight of the eleven commutations granted by George W. Bush were for drug offenses. In the case of each of the eight drug offense commutations, long sentences had already been served for the crime of conviction.

Just one of the pardons, and three of the commutations, were for non-drug offenses that carried significant sentences (more than three years in prison). Only one of the pardons (for someone who had been out of prison for thirty-five years) and three of the commutations (the border patrol agents) involved an individual sentenced to a term of more than three years for a non-drug crime.

The final figures on President Bush’s clemency record establish that he granted fewer pardons and commutations than any two-term president since Thomas Jefferson, and fewer per term than any full-term president since John Adams, with the exception of his father. Statistically, he is tied with his father for the lowest favorable grant rate for pardon petitions (9.8%), and his grant rate for commutations barely registers (.012%). While he pardoned fairly regularly through out his two terms, 76 of his 189 pardons and seven of his eleven commutations were granted in his final year.

President Bush received more clemency petitions than any president since FDR (not counting petitions received pursuant to general grants of amnesty), and he denied more. In eight years, he denied almost 7500 commutation and 1800 pardon requests, three times the number denied by Bill Clinton. . . .

All of the 189 pardon recipients had fully served their sentence, and almost 2/3 of them were convicted more than 20 years before they were pardoned. Twenty-five grants went to people whose convictions were more than 35 years old, and nine were convicted in the 1940’s and 50’s. Only a handful of grantees were convicted fewer than ten years before they were pardoned. Two pardons were awarded posthumously (one accidentally).

By far the most frequently pardoned offenses fall into the general category of theft and fraud. But President Bush also pardoned 35 drug offenders and 12 people convicted of a firearms or explosives offense. In addition to the usual complement of bootleggers (11), tax evaders (8), and car thieves (7), there are bank embezzlers, forgers, counterfeiters, mail thieves, gamblers, illegal dumpers, draft dodgers, endangered species and election law violators, and the obligatory odometer cheat. Only one of the 189 was convicted of an immigration law violation, and President Bush appears to have granted no pardons to avert deportation.

In the main, the offenses pardoned were minor ones, as evidenced by the fact that few of those pardoned spent any significant amount of time in prison, and more than two thirds spent no time in prison at all. Only 19 of the 189 spent more than two years in prison, and 17 of these were convicted of drug offenses. (The other two were an S&L fraudster sentenced to three years, and an armed bank robber sentenced to 12 years’ imprisonment in 1964.) . . .

Very few pardon recipients appear to have been well known outside of their communities . . .though one recipient was recommended by a former state governor and a retired federal judge. David McCall . . . was recommended by U.S. Senator Kay Bailey Hutchinson. Charles Thompson Winters, who was pardoned posthumously, was well known in the Jewish community as an ardent supporter of the young state of Israel. . . .

[O]nly five or possibly six of the 189 pardon grants went to people of color, including African-Americans. Four of the eight drug commutations went to African-Americans.

From here.

The most notorious of his eleven commutations was that granted to Scooter Libby, Vice President Cheney's chief of staff who was convicted of misconduct in connection with the Valerie Plame investigation and sentenced to two and a half years in prison. Only two of the other ten commutations (granted to border control agents) were related to controversy over the underlying case. The other eight reduced the length of already lengthy drug sentences.

Of the 11 individuals whose sentences were commuted by President Bush, eight were convicted of drug offenses in the early 1990s (in one case 1989), and three of them were within a few months of release from prison by the time their petitions were granted. Six of the eight had served more than 14 years in prison, and a seventh had served all but a few months of his 9-year sentence. The eighth drug commutee had served more than half of a 14-year prison sentence.

Notably, the drug sentencing guidelines under which the inmates receiving commutations were granted have been disavowed by the United States Sentencing Commission, declared to be non-binding by the U.S. Supreme Court, and have been the subject of considerable legislative action to make them less harsh.

The Scooter Libby case is briefly summarized as follows:

The prison sentence of I. Lewis 'Scooter' Libby has been commuted by United States President George W. Bush. Libby is the former chief of staff for U.S. Vice President Dick Cheney, and was at the center of the CIA leak scandal, where the identity of former CIA agent Valerie Plame was allegedly leaked to the media by White House officials.

Bush's intervention ensures that Libby will not serve jail time, however Libby must still pay a US $250,000 fine and undergo two years of probation. In a statement, Bush said, "I respect the jury's verdict. But I have concluded that the prison sentence given to Mr. Libby is excessive. Therefore, I am commuting the portion of Mr. Libby's sentence that required him to spend thirty months in prison."

He continued, "My decision to commute his prison sentence leaves in place a harsh punishment for Mr. Libby. The reputation he gained through his years of public service and professional work in the legal community is forever damaged. His wife and young children have also suffered immensely. He will remain on probation. The significant fines imposed by the judge will remain in effect. The consequences of his felony conviction on his former life as a lawyer, public servant, and private citizen will be long-lasting."

A federal court convicted Libby of perjury and obstruction of justice on March 6, 2007, and sentenced him to 2 1/2 years in prison. Bush issued the order to commute Libby's prison term after a federal appeals court ruled that Libby could not delay his prison term while his case was on appeal.

The case of the border patrol agents is briefly summarized as follows:

On his last full day in office, President George Bush issued commutations for former U.S. Border Patrol agents Ignacio Ramos and Jose Compean. These were notably commutations and not full pardons. . . The commutations will end the jail time on March 20, 2009. Ramos is serving an 11-year prison sentence; Compean is serving a 12-year term. They were convicted of shooting and wounding Osvaldo Aldrete Dávila (who was unarmed) in El Paso County, Texas. After the shooting, the officers were accused disposing of shell casings, lying to their supervisors, and filing a false investigative report.

The White House issued a statement that made clear that this was mercy and not forgiveness for the crimes: “The president has reviewed the circumstances of this case as a whole and the conditions of confinement and believes the sentences they received are too harsh and that they, and their families, have suffered enough for their crimes . . Commuting their sentences does not diminish the seriousness of their crimes. Ramos and Compean are convicted felons who violated their oaths to uphold the law and have been severely punished.”

They will remain convicted felons and face the ongoing restrictions accorded that status in terms of gun ownership, employment etc.

The assistance of a lawyer was not helpful in securing a pardon. Fewer than eighteen of the pardons came without a recommendation from the Justice Department, and between eight and none of the commutations were recommended by the Justice Department.

George W. Bush did not make any general grants of amnesty, although a notable grant of amnesty was contained in legislation related to the treatment of Guantanamo Bay detainees which was approved by Congress and supported and signed by the President. The pertinent part of the Detainee Treatment Act of 2005 provides (empahsis added):


(a) Protection of United States Government Personnel- In any civil action or criminal prosecution against an officer, employee, member of the Armed Forces, or other agent of the United States Government who is a United States person, arising out of the officer, employee, member of the Armed Forces, or other agent's engaging in specific operational practices, that involve detention and interrogation of aliens who the President or his designees have determined are believed to be engaged in or associated with international terrorist activity that poses a serious, continuing threat to the United States, its interests, or its allies, and that were officially authorized and determined to be lawful at the time that they were conducted, it shall be a defense that such officer, employee, member of the Armed Forces, or other agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful. Good faith reliance on advice of counsel should be an important factor, among others, to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful. Nothing in this section shall be construed to limit or extinguish any defense or protection otherwise available to any person or entity from suit, civil or criminal liability, or damages, or to provide immunity from prosecution for any criminal offense by the proper authorities.

(b) Counsel- The United States Government may provide or employ counsel, and pay counsel fees, court costs, bail, and other expenses incident to the representation of an officer, employee, member of the Armed Forces, or other agent described in subsection (a), with respect to any civil action or criminal prosecution arising out of practices described in that subsection, under the same conditions, and to the same extent, to which such services and payments are authorized under section 1037 of title 10, United States Code.

George W. Bush had far less expansive pardon powers when he was Governor of Texas and used even those limited pardon powers sparingly (full documentation of his use of the pardon power as Governor is available through the Texas State archives). "George W. Bush during his six years as governor of Texas presided over 152 executions, more than any other governor in the recent history of the United States." His review of pardon requests during his term as Governor was often cursory. Relying upon a law review article, one source states that, "during his prior term as Governor of Texas, George W. issued fewer pardons than any Texas Governor since the 1940s (16 up to January 2000, as opposed to 70 for his immediate predecessor Ann Richards, 822 for 2-term governor Bill Clements, and 1048 for John Connally, Texas governor from 1963-69)." George W. Bush commuted just one death sentence while he was Governor of Texas, that of Henry Lee Lucas who died three years later of natural causes. Lucas confessed to many murders that he could not possibly have committed.

All three of the federal executions since 1963 took place during the Bush Administration. There have been no executions pursuant to a U.S. military court martial since 1961.


Anonymous said...

Please fix your first sentence (pun also intended). Or does GWB really need 189 pardons?

Andrew Oh-Willeke said...

Thanks. Done.