Saturday, September 05, 2015

 

New (and good) work by Margaret Colgate Love


Yesterday Slate.com reporter Leon Neyfakh posted a great piece about a new article by former US Pardon Attorney Margaret Colgate Love.  As many of you know, I've had an ongoing friendship and dialogue with Ms. Love over the past several years. Most recently, we debated key clemency issues last April here at St. Thomas. Admittedly, the discussion is often lopsided: She knows more about the institution than I do, and she has certain written more often about clemency policy. It is her writing that I assign to my clinic students (in fact, we will be discussing it next class). It is always best to be in dialogue with people who know more than you do; that way you learn with every discussion.

One of the key points of disagreement between us has been this: I have long argued that the pardon power won't be effectively used until the process is pulled out of the Department of Justice, and Ms. Love has held (often compellingly) that clemency could work within DOJ. As Mr. Neyfakh reports, she has reconsidered that view:


For a long time, Margaret Love resisted this point of view, and was unwilling to give up on the idea that, with the right changes, the Justice Department could still be turned into a reliable manager of mercy. But in a new law review paper posted last week, Love announced that she has changed her mind. She has watched, she writes, as the Justice Department has become more and more reluctant to recommend clemency candidates to the president and has concluded that the process is irreparably broken. If it is to be fixed, she now believes, responsibility for choosing candidates for clemency and putting them in front of the president must be taken away from the Justice Department.

For a long time, Margaret Love resisted this point of view, and was unwilling to give up on the idea that, with the right changes, the Justice Department could still be turned into a reliable manager of mercy. But in a new law review paper posted last week, Love announced that she has changed her mind. She has watched, she writes, as the Justice Department has become more and more reluctant to recommend clemency candidates to the president and has concluded that the process is irreparably broken. If it is to be fixed, she now believes, responsibility for choosing candidates for clemency and putting them in front of the president must be taken away from the Justice Department…..

Love is not the first person to argue that the Justice Department has become ill-equipped to be dealing with clemency. But the fact that she has come around to joining other experts who have made the point—including the law professors Rachel Barkow and Mark Osler, authors of a 2014 paper that was picked up by the New York Times editorial board—is significant, in part because she’s such a prominent voice in the debate over the pardon power, and in part because she’s someone who actually worked inside the Justice Department. The question is what took Love so long: After all, if the problem she has identified is a fundamental conflict of interest on the part of the Justice Department, doesn’t that mean it’s always been there? 

“I was just kind of stubborn about it, because I believed in the Justice Department,” she said. “I thought we could bring back the old times, and now, I guess I’m just not persuaded that it’s possible, not at this time.” 

 It's going to be interesting to see what happens in this discussion through the end of this administration and the beginning of the next….

# posted by Mark Osler @ 12:00 AM
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