The 50-year-old pardon: Obama picks safe clemency cases

Gregory Korte | USA TODAY

Show Caption Hide Caption President Obama pardons Roy Auvil bootlegging in 1964 Roy Auvil, 76, has received a pardon from President Obama, wiping out his 1964 conviction for bootlegging in South Carolina.

WASHINGTON — Of the 64 pardons President Obama has granted over six years, half are for offenses that happened before 1989. Six are from the 1960s.

On average, 23 years have elapsed between the sentencing date and the day Obama has granted a pardon or commutation — an all-time high. A century ago, three or four years was the norm.

It's part of a decades-long trend toward presidents being more cautious in their pardon power, picking older and safer cases for clemency. But Obama has been the most cautious of all, and some critics say he is shirking his constitutional power — some say duty — to "grant reprieves and pardons for offenses against the United States."

"'Safe' is being nice. I would almost say irrelevant. The people who are being pardoned are people on Social Security," said P.S. Ruckman Jr., a political scientist who studies pardons. "The people who need pardons are young and need to establish themselves and get a job, get a Pell grant and go to college."

All Roy Auvil wanted was a gun permit.

The 76-year-old retired truck driver from Illinois said he didn't realize he was a felon until he went to renew his state firearms permit two years ago.

His application was rejected because of a 1964 conviction in South Carolina for operating an unregistered distilling apparatus without posting the required sign. In layman's terms: bootlegging.

The judge gave him a choice: join a chain gang, or leave the Carolinas. Auvil chose the latter, hitchhiked his way home to Illinois, and was released from probation three years later. He started a family, got a truck-driving job, voted, served on jury duty and bought firearms — all without realizing, he says, that he was a convicted felon.

Just before Christmas, Obama granted Auvil a pardon. Auvil's case was the oldest case of the 12 pardons Obama issued last year, but not at all atypical.

Many of Obama's pardons are for old, obscure and sometimes trivial crimes:

• Ronald Lee Foster, of Beaver Falls, Pa., was convicted of mutilating coins in 1963. He had shaved the edges off pennies to fool vending machines into thinking they were dimes. He was pardoned in 2010 at the age of 66.

• David Neil Mercer of Grand Junction, Colo., was convicted in 1997 of violating the Archaeological Resources Protection Act by disturbing Indian artifacts in Utah. He now owns an automotive business and was pardoned last year at the age of 56.

• Bobby Gerald Wilson, of Summerton, S.C., was convicted in 1985 of aiding and abetting in the possession and sale of illegal American alligator hides. He was pardoned in 2011 at the age of 61.

Obama has issued fewer pardons than any president since James Garfield, who served just 199 days in office, and fewer than any two-term president since George Washington, according to Ruckman, a Rock Valley College professor who tracks clemency trends on the blog Pardon Power.

The few pardons Obama is granting often come late in life — sometimes to people on their deathbeds.

Albert Byron Stork, a defense attorney from Delta, Colo., was convicted of tax evasion in 1987, when he took money from his fugitive brother for the down payment of a house. He received a pardon the same day as Auvil — and died of brain cancer two weeks later.

The White House said the president has an "ongoing commitment" to granting clemency.

"The president believes strongly that a critical component of our criminal justice system is for deserving and qualified applicants to have the ability to petition for clemency," said White House spokeswoman Brandi Hoffine. She said Obama "looks forward to reviewing additional requests for clemency in the coming months."

The Office of the Pardon Attorney, in the Justice Department, is responsible for sifting through the hundreds of applications received each year. Pardon Attorney Deborah Leff, a former broadcast journalist and career Justice Department lawyer whom Obama appointed last year, did not return messages seeking comment.

Leff's recommendations go to Deputy Attorney General James Cole, then to White House Counsel Neil Eggleston, and ultimately to the president.

That's how it works in principle. But in practice, the Justice Department is run by career prosecutors who are often hostile to those seeking pardons, defense attorneys say.

"They churn out a steady stream of no," said Sam Morison, a lawyer specializing in pardon cases who worked in the Office of the Pardon Attorney in the Clinton, Bush and early Obama administrations. "That doesn't mean that the president has to do what they say. But the president almost always does what the Justice Department recommends, even when he doesn't agree with what the Justice Department recommends."

But the Justice Department has to recommend some favorable applications, and they tend to be older, easier cases, he said.

Scholars say the pardon power — one of the most absolute and unambiguous powers the president has under the constitution — has all but atrophied from disuse even as Obama battles Congress over his use of executive orders.

"For all that presidents attempt to accumulate power, they rarely exercise their pardon power," said Jeffrey Crouch, an assistant professor at American University and the author of The Presidential Pardon Power. "Clemency is part of the Constitution, and the courts have generally protected it from congressional interference, so the president doesn't risk losing it by not using it."

One reason for the decline in pardons may be its perceived abuse under recent presidents. President Ford pardoned former President Nixon for his crimes in the Watergate scandal. President George H.W. Bush pardoned figures in the Iran-Contra affair. President Clinton granted 140 pardons on his last day in office, including one to fugitive financier Marc Rich, whose ex-wife had contributed $201,000 to Democratic causes in an effort to secure the pardon.

Delegating the decisions to the Justice Department helps to depoliticize the pardon power, but it's also led to its own problems. An internal Justice Department investigation found that President George W. Bush's pardon attorney withheld information from the White House about a commutation he opposed.

And in 2010, the nonprofit news organization Pro Publica published an investigation in the Washington Post revealing that, under Bush and Obama, white criminals were four times more likely to get a pardon than black offenders.

CLEMENCY INITIATIVE

Last year, the Justice Department announced a clemency initiative in an attempt to rectify some of the inequities in the system. Inmates who would have gotten lighter sentences under current federal guidelines were encouraged to apply to have their sentences commuted, or reduced.

But the Justice Department says that's a separate issue from pardons. A Justice Department handbook outlines five factors the government considers in a pardon application: post-conviction behavior, the age and seriousness of the offense, remorse, the need for a pardon, and recommendations from law enforcement.

Under current federal guidelines, a conviction must be at least five years old before the Justice Department will consider a pardon application.

Auvil waited 48.

In 1964, Auvil was working in a canning company for $1.05 an hour. On the night of April, 2, 1964, he was caught in the woods outside Loris, S.C. With him was a still, 98 gallons of whiskey, and another man also convicted of the crime. He died in 1990.

The story of how he was caught is pretty straightforward, Auvil said. "Have you ever tried to run in a swamp with hip boots on?" He won't say how long he had been "bootlegging," as he calls it, but he told the judge it was his first time in the woods.

Auvil talked his way out of the chain gang and returned home to Illinois. "I've lived a normal life, to tell you the truth. To find out two years ago that I'm a dang felon — excuse my language. I was dumbfounded," he said.

That moment came when Auvil applied to renew his Illinois firearms owner identification card, and it was rejected. The state police told him that the court in South Carolina evidently dug up his old conviction from 1964 and put it into the National Instant Criminal Background Check System. (The Illinois State Police, the FBI and the U.S. District Court for South Carolina all could not explain how that would happen.)

Auvil turned to Brian Fengel, the police chief of Bartonville, Ill., who suggested Auvil seek a pardon.

The pardon process can be bureaucratic, time-consuming and inscrutable. The 23-page application asks about employment history, alcohol and drug use, mental health treatment, delinquent debts, lawsuits, military disciplinary history and charitable activities.

"The paperwork is horrendous. I have a file folder it's about three inches thick full of paper," Fengel said. Auvil had to write the National Archives for his conviction records, get character references and explain why he wanted a pardon.

It took Auvil about two years to get his pardon — swift justice in a system that can often take five years or more. Justice Department lawyers first review the application, but the U.S. attorney who prosecuted the case and the judge who handed down the sentence are both consulted.

In Auvil's case, neither objected. The prosecutor died in 1993 and the judge in 1999.

Then comes an FBI background investigation. For Auvil, that was the most intrusive part of the process. Agents talked to his neighbors, members of his church and the soup kitchen where he volunteered. When he moved to Florida as a snow bird, the agents followed, knocking on even more doors.

"That was stupid. Three FBI agents all together," Auvil said. "Why would they send three FBI agents? That makes me sound like a damn desperado."

The White House announced his pardon Dec. 17, but the Justice Department told Auvil not to discuss it until he received the signed paperwork — signed not by the president, but by Leff, the pardon attorney. Auvil received the pardon in the mail Jan. 15 and immediately bought a frame to put it in.

Auvil made a copy of the original in case he needs it to prove he's been restored to his civil rights, but that seems unlikely.

"I've had a gun card. I've served on jury duty before. I voted. I vote every year. I drove a truck, I hauled stuff, I handled money and checks. I've done all kinds of stuff that felons aren't supposed to do," he said. "I've lived a normal life, to tell you the truth."

And that's why pardon experts like Morison say presidents risk trivializing the pardon power by using it so sparingly.

"I'm sure he's happy to get a pardon. He deserves a pardon. It's a relatively minor offense, and he's lived an upright life. But it's not really going to transform his life," he said.

"The irony is the people who need pardoning the most are the people least likely to get it," Morison said.

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