Shades of Mercy: Presidential Forgiveness Heavily Favors Whites

By Dafna Linzer & Jennifer LaFleur, ProPublica

First of two parts. This story was published by ProPublica 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.

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.

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.

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 Chance

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 Resaut contributed to this report.