Interview with Former US Pardon Attorney (Part I)

Interview with Samuel Morrison, Esq. Sam is an attorney based in Washington, DC. For 12 years he worked as an attorney in the United States Pardon Attorney’s Office. In that capacity, his role was to review people who submitted petitions for Executive Clemency. There are several types of Executive Clemency. They include Pardons and Commutations. In this two-part interview, Sam discusses his role. We also learn what steps an individual can take to advance prospects for executive clemency. Visitors can also listen to the audio podcast by clicking the link above. Read the second article by clicking this link.

Discussing Pardons and Sentence Commutations

Welcome to the Earning Freedom Podcast. I am Michael Santos with michalesantos.com and prisonprofessor.com. Today I am really excited because I get to introduce somebody that is going to be of interest to any individual who has either faced criminal charges or is facing criminal charges in the Federal courts. We have with us Samuel T. Morrison who currently runs pardonattroney.com, but he has an insight into how executive clemency works that would be of value to any individual who has been charged in the Federal courts. Sam, I really want to thank you for taking some time out of your busy morning to share your story and provide some insight to listeners of the Earning Freedom Podcast. Where are you located?

Samuel:

Well first of all thanks Michael, I’m glad to be here. I am in Washington D.C., actually I’m physically located at the moment in Fairfax which is the suburb of D.C., so …

Michael:

Okay. Well I had the privilege of meeting Samuel Morrison a couple of months ago when I visited Washington on some other work, work that I try and do to spread awareness on the criminal justice system, so I had the great privilege of shaking his hand, but my history with him began long ago. Do you remember when we first kind of connected Sam?

Samuel:

Well, the first time that I learned about you Michael was when I was consulted by someone else to comment on your clemency petition which was pending at the time.

Michael:

And why would he have contacted you, what was your role that you would have been interested in looking at my clemency petition when I was still in prison really, I think I was probably advancing through my, maybe my 10th or 15th year, I don’t remember because I filed a couple of times but I was in prison, where were you working at the time?

Samuel:

Well probably when you first filed I was staff attorney at the office of the Pardon attorney so …

Michael:

What is the office of the Pardon attorney, for those in our audience who don’t quite understand how that works, what does that mean?

Samuel:

Sure. I think everybody knows that under the constitution, the President of the United States can grant pardons, which includes commutations, which simply means reduction of sentence for federal offences. But the President himself doesn’t actually investigate every petition that’s filed because he simply doesn’t have time and his own immediate staff is too small. So for many years, in fact for over a hundred years that advisory function has been delegated to the department of justice.

Michael

How many people are in that department of justice component that you work with?

Samuel

When I was there, there were a total of six attorneys. Recently they’ve hired several additional attorneys, I believe four; so there’s either ten or eleven attorneys, I think it’s eleven if you count the Pardon attorney herself and then there is a support staff of a similar size. In addition, they are trying to recruit temporary attorneys from around the department of justice to stand anywhere from a few weeks to help them out at the case level.

Michael:

Okay, so you were going on before I interrupted about the process that takes place there, could elaborate for us on what the process is at the Pardon attorney’s office?

Samuel:

Sure. So as I was saying, under the constitution the President ultimately makes these decisions. That however is a little bit misleading because it’s really formed out to this office in the justice department, called the office of the Pardon attorney. So when you fill out an official form regardless of what type of clemency you’re asking for, the forms are submitted to this office in DOJ and they are responsible for doing whatever investigation needs to be done in any particular case and then drafting a recommendation to the President which is called a Letter of Advice and that letter of advice is signed by the Deputy Attorney General who supervises the Pardon office and that goes to the White House counsel’s office and then the President acts on the advice of the Justice department, so that’s prepared by the office of the Pardon attorney and the truth is that nine times out of ten, maybe more, the President does whatever the Pardon office advices, and that actually makes sense for a couple of reasons. One is, he doesn’t really know anything about a case except what they tell him, so they control the flow of information, except in unusual circumstances where people can try to get information directly to the White House, but that’s not that easy to do. And then secondly just for political reasons I think it gives the President some cover, some assurance that if his own justice department says this is a good case, you should grant it, then he feels more comfortable granting it. The flip side is if the Pardon office says, we recommend you should deny this case for whatever reason then President is much less likely to grant the petition. So the real game, the real action in the Pardon arena, in the clemency arena is really the office of the Pardon attorney. If you can persuade the officials in the department to give you a favorable recommendation then you have a very good chance of getting a pardon or a commutation. If you fail to persuade them, your chances aren’t very good, and I was a staff attorney there, so that’s what I did.

Michael:

Could you give us a little bit more insight, it is my understanding there are several different types of executive clemency, there is the pardon, there is the commutation, there is amnesty, there’s a few others I think. Could you help us understand what are the different mechanisms or components that the President can choose to act on?

Samuel:

Sure. In the constitution, it says that the President can grant pardons and reprieves for offences against the United States, except for cases of impeachment, that’s the pardon clause, that’s the constitutional term. Buy what falls within the umbrella of the pardon clause as you pointed out are several different forms of relief. Executive clemency is another umbrella terms for everything the President can do pursuant to the pardon clause. So the broadest form of relief is called a Pardon, and a pardon is official forgiveness for an offence and it can be granted anytime after the commission of the offence but even before there is a conviction, so it’s a very broad power. So, the most famous example of that probably is Gerald Ford’s pardon of Richard Nixon. Richard Nixon probably committed probably committed crimes in the Watergate affair but was never actually prosecuted, much less convicted. But President Ford decided, in order to put the issue behind the country and move on he would grant Nixon a full pardon for anything he may have done. So another form of pardon can be a pardon with conditions attached. Ordinarily a pardon is full and unconditional; it’s either all or nothing, but Presidents have in the past and are authorized to place conditions on any form of the executive clemency. So for example in the past there have been pardons granted on condition that the person agree to employment restrictions or deportation or any number of other things, so that would be a conditional pardon. A commutation is a reduction of sentence and that is typically filed by somebody who’s actually in federal prison and they’re seeking to have their sentence reduced or shortened. An aspect of that would also be called a remission, which is a remission of fine or restitution. So if there’s an outstanding monetary obligation, the President can reduce or even eliminate that monetary obligation. Now in amnesty, is really just another form of pardon, it’s just done in a slightly different way, or merely a clemency whether it’s a pardon or a commutation is to either a specific individual or a list of individuals, sometimes there’ll be a number of people named in one document. An amnesty is only different in the sense that it defines a class of people and grants pardon to anyone who happens to fall within that class. So the most recent example of that would be President Carter’s Vietnam era amnesty proclamation in which he pardoned as a group everyone who had committed certain kinds of service act violations. It didn’t have names in it, but anyone whose case fell within the class as defined in the proclamation was automatically pardoned. So those are all the different kinds of relief. Well there’s one more and that’s called a respite and that is to say a temporary suspension of a sentence, like a stay of execution.

Michael:

In the case of Scooter Libby which was quite famous, who was in the George Bush’s White House and he was convicted and about to be sentenced or he was sentenced and he had some type of executive clemency granted to him, so never had to surrender to a federal prison, what type of pardon was that?

Samuel:

That was a commutation of sentence, so Scooter Libby’s sentence was I believe it was 30 months in prison, two years supervised release and a fine. He sought a full and unconditional pardon, but President Bush decided not to grant that and my understanding is the reason he decided not to grant it is that Scooter Libby wouldn’t accept responsibility for his offence. That being said, the President felt that a prison term was inappropriate, so he commuted the 30-month sentence, but he left intact both the supervised release and the fine.

Michael:

So it is possible because you had mentioned that the commutation release, I understood you to say that a commutation is typically filed by somebody while they are incarcerated, but it seems that it is possible then to file that commutation or to have your sentence commuted even before you surrender, recognize its extraordinary circumstances, but apparently you can get, even you can get sentenced in court, get ex-commuted and never have to surrender to prison.

Samuel:

No that’s exactly right, there are no legal restrictions on the timing of the President’s authority other than the fact that the offence has to actually have occurred, in other words the President can’t give you license to commit a crime in the future, but as long as the offence has occurred, he’s free to act. Now that raises an important issue that I think your listeners will be interested in. The office of the Pardon attorney has a set of administrative rules that govern the filing of these various kinds of petitions. So for example for a commutation the DOJ’s administrative rules say, not only do you have to have reported to prison before you can file, you have to have exhausted your direct appeal before you can file, otherwise they won’t accept your case, and that is a policy judgment and their notion is, listen we’re not going to spend resources on this if the courts might resolve it. But as the Scooter Libby case illustrates, those rules aren’t binding on the President. There’s another very interesting example of that that President Clinton did, a particular individual had been sentenced to a prison term, it was reversed, the sentence was vacated on appeal and it was remanded to the district court for resentencing. Well before the person was resentenced President Clinton put a ceiling on the sentence that the judge could impose, he put a cap on it. He said, I grant you commutation to more than 36 months. So when the case went back to the district court for resentencing, the judge was not permitted to impose a sentence greater than that because the President hadn’t commuted anything above that, so that’s also quite unusual but it illustrates the broad scope of the Pardon power.

Michael:

Do you remember the defendant and the type of case that was?

Samuel:

Yes that was a guy named Arnold Prosperi and it was a real estate fraud case.

Michael:

Interesting because we’ve recently seen a lot of attention to non-violent drug offenders being commuted and I’d like to get into that in a lot of portion of our episode but it’s clear that the President’s can do this to anybody they choose, it would seem that there has to be a pretty good marketing effort in place in order to get around these administrative policies that the Pardon attorney office imposes, is that accurate?

Samuel:

Yes, you can do if you have the resources and the connections, it is certainly possible to go directly to the White House counsel’s office and plead your case. Now I don’t want to make it sound like that, a routine thing because it’s not, and what would normally happen is if somebody writes directly to the White House counsel’s office, they’re just going to send it to the Pardon office and sent the requester a standard form letter that says we’ve forwarded this your request to the office of the Pardon attorney. But it is certainly true that there have been many instances where people appeal directly to the White House and if it is sufficiently compelling case or a sufficiently compelling issue the President will sometimes intervene based on that request.

Michael:

The case in point would have to be Scooter Libby because he would not have abided by the policies of the Pardon attorney.

Samuel:

That’s correct, he didn’t follow any of the rules, he didn’t even bother to file a petition to the Pardon office.

Michael:

And that brings up another interesting point. I’ve as an individual who has spent most of my life inside a federal prison, I was always interested in the power of commutation and the Pardon power and some of my research showed some really disturbing trends that I’d love for you to elaborate on. I would seem that prior to I would say President Reagan’s term, the office of the Pardon attorney was the commutation part, particularly during Lyndon Johnson’s term it would seem that it was granted much more frequently that it is today and at that time when I came into prison there were only about 27,000 people incarcerated, I think during President Johnson’s term the population was around 25,000 and according to the DOJ website I saw he granted several hundred commutations. What was different at that era than exists post Reagan?

Samuel:

I think the primary difference really is just a change in our culture. We’ve become a much more punitive criminal justice system than we were before. That’s purely political, there’s no real at least in my opinion, and there are people who would dispute this I’m sure but I don’t believe that that’s a public safety, driven by public safety concerns, I think that’s certainly driven by political ideology because the crime rate was dropping even before we started ratcheting up criminal sentences and there’s really no good academic literature that would suggest that simply increasing sentences to draconian levels has anything to do with crime rate or that it contributes to public safety, so it’s just the political program and political attitudes changed. So I can give you a very … 5-minute history of the Pardon power and how it’s changed over time and that responds to this issue that you are raising.

Michael:

And that would be like … or would you say that that time … I’m looking forwards to that 5-minute explanation but did that really begin around 40 or 50 years ago or how long ago?

Samuel:

That began in earnest really with the Reagan administration.

Michael:

Ok so we got … please give a story insight.

Samuel:

So I’ll give you just a very high level overview of how this changed over time. As you pointed out, before the last 20 years the federal criminal justice system was very small compared to the states. So in the 19th Century, the President actually performed a [0:18:01] appellate function and [0:18:04] parole function through the clemency power, and the reason for that was there is no constitutional right to a direct appeal. The first appeal statute didn’t even exist until the late 19th century and the first general right of appeal in all federal cases didn’t exist until like 1913 I believe. Also the first parole statues and the first probation statutes weren’t passed until the early 20th century. So those mechanism were all introduced, direct appeal, probation and parole were all ways of diverting people out of the prison system that didn’t need to be there either on the front end or on the back end. So up until the early 20th century the Presidents spent a fair amount of time correcting legal errors or releasing people from prison that didn’t need to be there anymore. Gradually over the course of the 20th century those functions began to be performed by these other legal and administrative mechanisms, which is actually a good thing because we don’t want to unnecessarily put that burden on the President himself. So you did see a decline in the second third of the 20th century in the number of commutations. Now that being said, they were still granted far more frequently than they are today. So prior to FDR the average number of commutations was over a hundred a year in a prison population that had about 10,000 people. During FDR’s administration that dropped to about 40 a year, but still you had a very small prison population.

Michael:

When was the 40 a year, at what time?

Samuel:

In the 1930s and early 1940s.

Michael:

Okay.

Samuel:

But again, remember as a percentage of the prison population that was a huge number, the equivalent number today would be 300 or 400 a year, and we’re obviously nowhere close to that. Then in a very interesting story of historical parallel to where we are today, in the early 1960s as you mentioned John F. Kennedy and Lyndon B. Johnson commuted the sentences of hundreds of people who were serving mandatory minimum drug sentences which by today’s standards seems fairly lenient but by the standards of the time we’re considered very strict. They were imposed in the 1950s and so by the early 1960s there were all these people in federal prisons serving mandatory minimum drug sentences and Presidents Kennedy and Johnson quite deliberately instead of consciously said, that’s not a good idea, let’s find the people that don’t need to be there anymore, and so again they commuted hundreds of sentences in prison population of at that point maybe 20,000. Then, let’s fast forward to the present, that started really under Nixon is where it began, it was this famous war and crime, but just get a sense of the cultural differences that I’m talking about, even President Nixon granted hundreds of pardons and I think maybe a hundred commutations roughly speaking, I don’t remember the exact number but it was something like that, so even this famously tough-on-crime President was far more generous than any recent President has ever been. What really kicked it in the high gear however was the reforms that happened under the Reagan administration, so that’s when we had the Sentencing Reform Act which introduced the Sentencing guidelines, it introduced a whole new [0:22:06] of mandatory minimum sentences that had been repealed in the 1970s, it downgraded basically the Pardon function, the Pardon attorney became much less important a figure within the justice department, he no longer reported to the attorney general. Reagan decided that the Pardon attorney would report to the deputy attorney general. That’s important because the attorney general is a member of the cabinet, he’s not just a law enforcement officer, he’s also a political advisor of the President and he carries much more weight with the President because of his status. The deputy attorney general is the chief prosecutor, he’s the #2 person in the justice department and his or her (it’s a woman now) her primary function is to oversee all criminal prosecutions. So at the same time we eliminated parole, we instituted mandatory guidelines, we instituted a whole new raft of mandatory minimum sentences, we downgraded the status of the clemency power, and the justice department quite consciously decided to exercise its ability to control the clemency power in the 1980s and the early 1990s and how could they do that, I thought this was the President’s power, where they can do it quite easily because as I said before they control the flow of information. So if the only thing the President knows is what the justice department tells the President, and they exercise a lot of control over what the President politically can do and so it they say no, over and over and over again even when it’s unreasonable, that kind of ties the President’s hands, what they’re saying essentially is, Mr. President you’ll either do what we advice you or you’re on your own and most Presidents, and President Reagan and I think the first President Bush didn’t complain about that because that was their agenda, they weren’t interested in doing commutations. Interestingly enough both President Clinton and the second President Bush, George W. Bush complained to the justice department quite vigorously that they were not receiving enough favorable recommendations and they complained that the Justice department and the Pardon office was being too strict and was not being reasonable enough in the recommendations that they were making and in both cases the Pardon office simply didn’t respond. They either made excuses or they dragged their feet knowing that the president was time limited and there wasn’t too much he could do about it and President Clinton reacted by granting a whole bunch of pardons and commutations that were not really valid at all and therefore made some mistakes like the Marc Rich case famously, and President Bush with very few exceptions like Scooter Libby basically shut the process down. He didn’t want to make a Marc Rich mistake. So he said, well if you’re not going to give me the service that I want, then I’m just not going to do anything.

Michael:

Why was the Pardon attorney so reluctant to recommend people who may not be necessary to be continued in confinement?

Samuel:

Well that will be … that’s a somewhat contentious question I suppose. I was in the Pardon office from 1997 until 2010 and in my experience the primary driving factor was essentially ideological, not in the Republican/Democrat sense but in the sense that these were all either former prosecutors or people who had bought into the prosecutorial mentally and they viewed the function and the mission of the justice department as a prosecutorial one where they are able to convict people and where they are going to punish people and where are to punish them as harshly as we can and they simply had a knee-jerk reaction against commutation because they viewed it as giving up on a case that they’d won and they didn’t want to recommend favorable too often because that ceded a certain amount of control to the President, they wanted to control who is in prison and who wasn’t. So at the [0:26:51] think about it, we are now in a position where we need the clemency power more than we have in over a hundred years, because we don’t have parole anymore, because we do have guidelines, the supreme court it is true has now made the guidelines advisory and that has helped some, that has evened the balance a little bit, judges have more discretion than they used to. But also remember, prison sentences now are so severe that there are almost no jury trials anymore, because you can threaten somebody with a sentence that is so draconian that it becomes unreasonable for them to take the risk of going to trial. So the justice department by the way they charge cases by manipulating the sentences that are out there are able to essentially coerce and threaten people into pleading guilty who might otherwise go to trial, so you also don’t have juries intervening in the process, and for political reasons we’ve had no commutations. So now we’re in a position essentially where we were in the early twentieth century.

Michael:

Well I got to say that’s all the more reason to be learning more about Sam Morrison’s practice and we’re going to be talking about that in the follow-up episode. I want to point one other thing, when I went to prison we had fewer than 25,000 people in federal prison that was back in 1987. When I emerged from federal prison in 2013, we have I think more like 220,000 people in federal prison and commutations as Mr. Morrison said during earlier years were several hundred a year, when we had 200 and there were only 20,000 people in there, now we have 200,000 plus in there, and prior to this recent grant by President Obama how many were we giving a year, how many were given in 2013, commutations would you guess?

Samuel:

Well I believe that President Obama has done roughly 60 in the last two years, so before that it was literally a handful.

Michael:

So when you say 60 in the last two years, he gave 46 a couple of weeks ago, so right there we are looking at about 10 is all he’s given.

Samuel:

Right. So the first five years he did virtually nothing.

Michael:

So a dozen people had their sentences commuted. Now we’re ratcheting up, we’ve got leaders like Sam Morrison who are working to help individuals position themselves for, but it is a very, very heavy lift, the one that I wasn’t able to overcome but I think that the tides are turning and in our next episode on the Earning Freedom Podcast we will be learning more about what an individual can do who wants to position himself or herself for some form of executive clemency, either a commutation of sentence of perhaps a pardon later on during the journey. We’re going to learn exactly how those benefits can really change your life. So thank you so much Mr. Morrison, we’ll start again. I’m just going to close this episode and we’ll start another one back to back for episode #2 in the Earning Freedom Podcast. If you are listening and you like what we’re doing please go to Apple i-tunes, subscribe to the Earning Freedom Podcast, rate and review and that way we can get more distribution. Thank you so much. I’m Michael Santos, we will have show notes at michaelsantos.com.