Margaret Love: Former U.S. Pardon Attorney

We were honored to host Margaret Love, the former U.S. Pardon Attorney and executive director of the Collateral Consequences Resource Center, as our August 2023 White Collar Support Group Tuesday Night Speaker Series presenter. Marge talked with us about how the federal pardon program is supposed to work, how it broke, and where relief is actually coming from now. You can watch the full recording above.

Give this one an hour for a single admission Marge makes early. The person who once ran the pardon office has nearly stopped taking pardon clients, and she is willing to say out loud why. If you are weighing whether to spend real money on an application, or you are the spouse writing that check, or you want to know why a decades-old case still costs you a license or a job, she gives you the arithmetic before she gives you any encouragement.

What broke the federal pardon system, and when

Marge trained as a historian before she trained as a lawyer, and she treats the collapse as a datable event rather than a mood. The office has administered the president’s clemency power since the Justice Department was created in 1870, and for most of that run it was orderly housekeeping. Cases in, cases out, a real share of applicants pardoned or commuted every year, right through the George H.W. Bush administration.

Then several things landed at once. Parole was abolished for federal sentences, mandatory minimums came into full swing, and cheap background screening turned an old conviction into a permanent barrier to work. Demand for relief spiked at the exact moment a president determined to look tough on crime lost interest in supplying it. The part most people have backwards, she corrects in one sentence:

Prior to Bill Clinton, there had been only a handful of pardons ever since the Civil War that had not been recommended by the Department.

She can name that handful. She also warned her superiors what was coming, was out of the department not long after, and tells that story better than we can summarize it.

Is a federal pardon application still worth filing?

This is the question our members bring most often, and Marge answers it with a number rather than encouragement.

there are now almost 4,000. I paused for a minute to let that number sink in. Almost 4,000 pardon applications.

Behind those post-sentence applications sit roughly 16,000 to 17,000 prisoner petitions for commutation. Her own pending files numbered in the forties, some waiting more than a decade. At the time of the talk the sitting president had granted about a hundred commutations, nearly all to people already released to home confinement under the COVID program, plus a handful of pardons. Meanwhile she had recently filed cases she considered strong that had not reached the first step of an investigation.

She is careful about what she can and cannot see, because the process has always been close to a black box and she reads it only from what happens to her own clients’ files. If you want the inside of that box mapped, Rachel Barkow later counted for us the layers of review a petition passes through before anyone near the president sees it. Marge does have a fix in mind, one structural change she would make if a president asked her, and she lays it out in about a minute. Our group has circled this subject with Professor Mark Osler and in Jeff’s comments to Bloomberg on the ethics of pardons. Marge is the one who ran the office, which makes her version land differently.

Where relief comes from now: the courts and the states

Her answer is that the action has left the White House, and that people should follow it. The First Step Act removed the Bureau of Prisons as the gatekeeper it had been since the 1970s and let incarcerated people file their own motions for a sentence reduction. Most members meet that statute through earned time credits and a release date; this is the half of it Marge is more interested in. She objects to the name compassionate release for it, and her reason is not semantics. That authority was never meant only for the sick and the elderly, and what the courts are building with it is much closer to clemency.

Post-sentence relief is the harder half, because no federal statute substitutes for a pardon. So she points at fifty states inventing remedies at once: record clearing, functional pardon boards in a dozen or so of them, occupational licensing reform, fair chance hiring. What she wants federally is a judicial certificate, a document from the sentencing court that lifts the legal disabilities and says on the record that the price has been paid. Sheldon Whitehouse and John Cornyn, two senators usually on opposite sides of criminal justice questions, introduced exactly that bill. Her illustration is the indignity our members know well: a tax count from thirty-five years ago, and a client who only wants to go hunting again. It belongs to the same family as the question members keep bringing us about what an old conviction does to international travel, a small freedom closed by operation of law with no expiration date on it.

About Margaret Love

Margaret Love served as U.S. Pardon Attorney between 1990 and 1997 and has worked in executive clemency and restoration of rights ever since. She has written and lectured widely on pardon policy and practice and on the collateral consequences of a conviction, and is recognized as one of the nation’s leading authorities on clemency and related relief. She is executive director of the Collateral Consequences Resource Center, the nonprofit she helped start in 2014, whose Restoration of Rights Project tracks restoration law in all fifty states. She also handles commutations, which, with parole abolished for federal sentences imposed after 1987, are among the few ways left to shorten a prison term.