Rajagopalan: Bias and presidential pardons

Kavitha Rajagopalan is a senior fellow at the World Policy Institute.

White criminals are four times more likely to receive a presidential pardon than anyone else. That's according to ProPublica, a nonprofit investigative news group, which analyzed previously unreleased pardoning records. Blacks remain the least likely to receive clemency.

According to the analysis, President George W. Bush pardoned 189 people, all but 13 of whom are white. Of the 22 people Obama has pardoned so far, only two are minorities.

Given that minorities -- African-Americans in particular -- are disproportionately represented in federal incarceration figures, this is a deeply troubling finding. African-Americans make up 37.9 percent of inmates, according to Bureau of Prison statistics, yet received just 3.7 percent of all pardons granted under Bush.

ProPublica found that racial disparities exist even when white and minority criminals are convicted of similar types of crimes and are serving similar sentences.

Clemency petitions don't always come from the most sympathetic figures, of course. Appeals run the gamut, including from convicted tax evaders and narcotics dealers. But presidential pardon and commutation have a long-standing and well-supported place in Department of Justice history. Lyndon Johnson and Dwight Eisenhower each pardoned, commuted or rescinded the convictions of more than 1,100 people.

The process came under scrutiny when Bill Clinton pardoned a major Democratic Party campaign contributor as one of his last acts in office. In the wake of that scandal, Bush and Obama have granted far fewer pardons from the applications that have crossed their desks than previous presidents. And they have adhered closely to the recommendations of the Office of Pardon Attorney. An Obama spokesman said the White House doesn't "consider or even receive information on the race of applicants."

But the pardon lawyers advising the White House have a lot of leeway in how they assess applicants -- and they seem to favor those whom they deem to be "stable." They use their own discretion to define stability but, the analysis shows, primarily tend to favor applicants who are married and who've never taken on large debt or declared bankruptcy. The result has been a heavy negative impact on African-American applicants, who are less likely to be married and financially stable than white applicants.

The process points to what scholars who study racial justice describe as hidden bias -- in other words, institutional racism. Race is a socioeconomic status much more than a biological one, and across the board, race has emerged as the strongest predictor of whether an inmate will be pardoned.

The pardon office is also not immune to politics. Justice Department records indicate that about 200 members of Congress contacted pardon attorneys about cases under review, and many felons and their families were found to have made contributions to the politicians supporting their pleas. Not surprisingly, ProPublica found that applicants with congressional support were three times as likely to be pardoned.

It all cries out for more sunlight. The Office of the Pardon Attorney should make its methods public and subject them to review by independent advisers. The process appears to reinforce racial bias -- regardless of the office's intent. And, until the office's process can be assessed and potentially reformed, the White House should seek additional sources of guidance in making these crucial decisions.