Once in a great while, journalists unearth a story that shocks the conscience and demands immediate action. Today's article on the racial disparities in the awarding of presidential pardons is one such instance.
Published in collaboration with The Washington Post, the story discloses for the first time that whites seeking pardons are nearly four times as likely to succeed as people of color. Sophisticated statistical analysis shows that this disparity cannot be explained by such factors as age, marital status, type of crime or sentence.
The president's authority to pardon criminals, as Dafna Linzer and Jennifer LaFleur point out, is one of the essential powers of the chief executive, enshrined in the Constitution at its inception. The Framers accorded presidents this king-like authority because they knew there would be cases in which the judiciary erred or was influenced by passions of the moment. Recent presidents have drifted far from that ideal.
Linzer and LaFleur's reporting shows a claim of innocence is virtually disqualifying. Instead of using their powers as a remedy for unfair prosecutions, Presidents George W. Bush and Barack Obama have largely delegated their pardon authority to a Justice Department office staffed by career prosecutors. Roger Adams, the man who headed the Office of the Pardon Attorney for most of the Bush presidency, said race was not a factor in assessing who to recommend for a pardon.
But statistics and records suggest that Justice Department officials are doing something in their work that decisively favors white applicants. Adams said that when he sifted pardons, he tried to assess the criminal's "attitude" toward the justice system. Such a subjective standard opens the door to possible bias. Do whites and blacks have the same attitude of "respect" towards cops, courts and judges? Does that come through in the 23-page pardon application?
Justice Department officials insist the office does have clear standards. Pardon applicants are required to demonstrate "stability" -- defined as long-term marriages, low credit-card and bank debts, and a solid job history. Never mind that many Americans in today's economy would have trouble meeting these tests. The documents reviewed by Linzer and LaFleur show that whites who failed to meet some of these standards were approved while blacks with similar applications were rejected. It is clear that whatever rules exist, they are inconsistently applied.
The pardon office is an ideal subject for investigative reporting since it does not explain its decisions, gets little if any congressional oversight, and was, until recently, able to shield its key data from the Freedom of Information Act.
Many people reading this story will conclude that they are looking at the face of racism in the 21st century -- not Bull Connor unleashing attack dogs but bureaucrats in a room making subtle distinctions with life-changing implications. Fred Fielding, the White House counsel under Bush, said he believed the process was colorblind and that race was not disclosed to any of those involved. This is untrue. In fact, an attorney in the pardon office can learn the race of every applicant from the documents assembled from law-enforcement files.
When we opened the doors at ProPublica nearly four years ago, we vowed to include in each story possible solutions to the problems we uncovered. That proved a difficult task in some cases.
When it comes to pardons, there are concrete solutions to many of the problems outlined in today's report, some of which have already been studied by the Obama administration.
The president, for example, could immediately require any member of Congress who writes on behalf of a pardon applicant to disclose campaign donations received from the criminal or immediate family.
Attorney General Eric Holder could order an immediate review of pardons granted by past presidents to see when and under what circumstances the racial disparities arose. ProPublica laboriously tracked down a random sample of nearly 500 pardon decisions and spent months researching the racial background, criminal record and other aspects of each one. The Justice Department has the data to do this for every pardon case -- a study that would be even more definitive.
Finally, President Obama could restart the work undertaken by Gregory Craig, his former White House counsel, toward creating an independent group to advise the White House on pardon applications. Such a step would parallel what is done in some states, and would likely remove some of the pro-prosecution leanings of the current process. Specifically, the president could announce that claims of innocence will not disqualify those seeking pardons. This could be done by Executive Order (with a tiny shift in appropriated money by Congress).
Over the past several decades, the United States has reacted to rising crime rates by arresting, charging and convicting growing numbers of people. That increased emphasis on incarceration has been accompanied by a steady drop in the number of presidential pardons.
That can change.
Steiger is ProPublica's editor-in-chief, and Engelberg is the managing editor.
