[Senate Report 106-231]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 445
106th Congress                                                   Report
                                 SENATE
 2d Session                                                     106-231

======================================================================



 
              THE PARDON ATTORNEY REFORM AND INTEGRITY ACT

                                _______
                                

                 March 9, 2000.--Ordered to be printed

                                _______
                                

Mr. Hatch, from the Committee on the Judiciary, submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                         [To accompany S. 2042]

    The Committee on the Judiciary, to which was referred the 
bill (S. 2042) to reform the Department of Justice's Office of 
Pardon Attorney, having considered the same, reports favorably 
thereon, with amendments, and recommends that the bill, as 
amended, do pass.

                                CONTENTS

                                                                   Page
  I. Purpose..........................................................1
 II. Legislative history and need for legislation.....................2
III. Discussion.......................................................9
 IV. Vote of the Committee...........................................17
  V. Section-by-Section analysis.....................................17
 VI. Cost estimate...................................................18
VII. Regulatory impact statement.....................................19
VIII.Minority views of Senators Leahy, Kohl, and Feingold............20

 IX. Changes in existing law.........................................29

                               I. Purpose

    The purpose of the Pardon Attorney Reform and Integrity Act 
is to reform the way that the Department of Justice's Office of 
the Pardon Attorney investigates potential grants of executive 
clemency, which include pardons, reprieves, commutations and 
remissions of fines. This legislation is necessary to ensure 
that the Pardon Attorney, when asked by the President to 
investigate a particular proposed clemency grant, identifies 
and gathers the information and views held by law enforcement, 
and to make sure that crime victims are not revictimized by 
being ignored by the clemency process or by hearing of a grant 
of clemency to their perpetrator on television.

          II. Legislative History and Need for the Legislation


                         A. Legislative History

    On August 11, 1999, President Clinton offered clemency to 
16 people who had been convicted of a seditious conspiracy that 
involved the planting of over 130 bombs in public locations in 
the United States and the killing of 6 people. Those 16 felons 
belonged to the violent Puerto Rican separatist organizations 
called the Armed Forces for National Liberation (known by its 
Spanish initials, ``FALN'') and Los Macheteros, which have 
declared war against the United States in order to bring 
attention to their political views. Approximately 4 weeks 
later, on September 7, 1999, 11 of those terrorists who 
accepted the clemency offer were released from prison. The 
public reaction in America was widespread outrage. In response 
to public concern, the Judiciary Committee undertook an 
investigation of the role that the Department of Justice played 
in facilitating the President's decision.
    The investigation began with Chairman Hatch's requests for 
documents from the Department of Justice and, specifically, its 
Office of the Pardon Attorney. The Department of Justice 
responded that those requests presented ``important 
institutional issues'' and required additional time for 
response.\1\ Chairman Hatch also requested that representatives 
of the Department including the Pardon Attorney and agents of 
the Federal Bureau of Investigation (``FBI'') testify at a 
hearing scheduled for September 15, 1999. In a letter dated 
September 14, 1999,\2\ the Department informed Chairman Hatch 
that it would not allow the Pardon Attorney or any FBI 
employees to testify before the Committee because of ``the 
important constitutional and institutional interests implicated 
by your invitation for testimony and the fact that the hearing 
may in significant part address the exercise of an exclusive 
president prerogative.'' The Department also mentioned that it 
was reviewing the matter and ``consulting with the White 
House'' about how to proceed.\3\
---------------------------------------------------------------------------
    \1\ Letter from Jon P. Jennings, Acting Assistant Attorney General, 
to the Honorable Orrin G. Hatch, Chairman, Committee on the Judiciary 
(September 7, 1999).
    \2\ Letter from Jon P. Jennings, Acting Assistant Attorney General, 
to the Honorable Orrin G. Hatch, Chairman, Committee on the Judiciary 
(Sept. 14, 1999).
    \3\ Id.
---------------------------------------------------------------------------
    Prior to the Judiciary Committee's hearing, the House and 
Senate both passed resolutions condemning the President's 
decision to grant clemency. The House resolution, H.R. 180, 
passed on September 9, 1999, by a vote of 311 to 41 with 72 
present. The Senate resolution, S.J. Res. 33, passed on 
September 14, 1999, by a vote of 95 to 2.
    On September 15, 1999, the Judiciary Committee conducted a 
hearing and heard testimony from: Rocco Pascarella, a former 
New York City policeman and victim of an FALN bombing; William 
P. Newhall, a victim of an FALN bombing; Donald R. Wofford, a 
former FBI special agent who investigated FALN crimes in New 
York, NY; Richard S. Hahn, a former FBI special agent who 
investigated FALN crimes in Chicago, IL; Gilbert G. Gallegos, 
national president of the Grand Lodge, Fraternal Order of 
Police in Washington, DC; Reverend Dr. C. Nozomi Ikuta, of the 
United Church of Christ in Cleveland, OH; and the Honorable 
Angel M. Cintron Garcia, the Majority Leader of the House of 
Representatives of Puerto Rico. These witnesses testified about 
some of the horrible crimes for which the FALN has proudly 
claimed responsibility and the diligence with which law 
enforcement agents investigated those difficult crimes and 
prevented others from occurring. The witnesses also testified 
about the shock, grief and horror they felt upon learning that 
the President of the United States had decided to releasethe 
FALN and Los Macheteros terrorists from prison.
    Following that hearing, Chairman Hatch again asked the 
Department of Justice to provide documents and testimony 
concerning its role in the clemency decision. Again the 
Department of Justice refused. Eventually, the Department 
turned over several boxes of documents consisting largely of 
letters in support of clemency, prison records concerning the 
16 clemency offerees, and miscellaneous records not directly 
related to the grant of clemency. The Department withheld all 
relevant correspondence between it and the White House, 
including the reports produced by the Pardon Attorney, on the 
grounds of executive privilege.
    Chairman Hatch persuaded the Department to provide 
testimony to the Committee and scheduled a second hearing for 
October 20, 1999, to examine the role played by the Department 
and its Office of the Pardon Attorney in the clemency decision. 
The Department's witnesses, Deputy Attorney General Eric Holder 
and Pardon Attorney Roger Adams, repeatedly asserted executive 
privilege when asked about the substance of advice made 
available to the President. The Deputy Attorney General 
conceded that the Department could have done a better job in 
this matter, and in particular, that victims should not be shut 
out of the process.
    Following that hearing, Chairman Hatch began drafting 
legislation aimed at reforming the way in which the Office of 
Pardon Attorney investigates potential grants of executive 
clemency. Draft legislation was reviewed by Senators from both 
parties and by the Department of Justice. Chairman Hatch's 
staff reviewed the Department's draft regulations and met with 
the Department to discuss them. The parties did not reach an 
agreement on the best way to structure the needed reforms.
    On February 9, 2000, Chairman Hatch introduced S. 2042, the 
Pardon Attorney Reform and Integrity Act, on behalf of himself 
and Senators Nickles, Lott, Abraham, Thurmond, Kyl, Ashcroft, 
Sessions, Smith of New Hampshire, and Coverdell. Senators 
Murkowski and Helms were later added as additional cosponsors. 
S. 2042 was referred to the Judiciary Committee.
    The bill has the support of individual victims, victims' 
organizations, law enforcement, and constitutional scholars. 
Letters in support of the bill were received from the Fraternal 
Order of Police, the Law Enforcement Alliance of America, 
Joseph and Thomas Connor, Diana Berger Ettenson, and the 
National Organization for Victims Assistance.\4\ Letters 
defending the bill's constitutionality were written by Prof. 
Akhil Reed Amar, of Yale Law School, and Prof. Paul G. Cassell, 
of the University of Utah College of Law.
---------------------------------------------------------------------------
    \4\ Additional supporters include the FBI Agents' Association, the 
International Association of Bomb Technicians, Federal Criminal 
Investigators' Association, the National Association of Police 
Officers, and the International Brotherhood of Police Officers.
---------------------------------------------------------------------------
    On February 10, 2000, the Judiciary Committee met in 
executive session to consider the bill, and it was held over to 
the next meeting. On February 24, 2000, the Judiciary Committee 
met in executive session with a quorum present and considered 
and accepted by voice vote a technical and clarifying amendment 
offered by Chairman Hatch. The bill, as amended, was then 
ordered favorably reported to the full Senate by voice vote.

                      B. Need for the Legislation

    This legislation is needed because the current Justice 
Department regulations governing the Office of the Pardon 
Attorney are inadequate, a fact demonstrated by the events 
leading to President Clinton's grant of clemency to the members 
of the FALN and Los Macheteros. Legislation is also 
necessitated by the inadequacy of the Justice Department's 
proposed new regulations, which fail to address the legitimate 
concerns of victims and law enforcement.

                   1. background: current regulations

    The Office of the Pardon Attorney was created, and is 
funded, by Congress. In 1891, the Congress appropriated money 
for a position (then called the ``attorney in charge of 
pardons'') in the Department of Justice that would be charged 
with reviewing clemency petitions. To this day, the Office of 
the Pardon Attorney depends on funds appropriated annually by 
Congress. The Department, through the appropriations process, 
requests funding for that office each year. In the most recent 
appropriations legislation, the Congress appropriated $1.6 
million for the Pardon Attorney for the fiscal year ending 
September 30, 2000. This congressional involvement--creation 
and funding of the office--justifies the exercise of oversight 
authority by the Judiciary Committee.
    Although important, the Pardon Attorney's responsibilities 
are not complicated: it reviews petitions for clemency and, in 
appropriate cases, investigates the potential clemency 
recipients and writes a report and recommendation to the 
President. Current Department regulations require that the 
report contain a recommendation to the President on whether to 
grant or deny the proposed clemency.\5\ The regulations also 
require individuals seeking clemency to submit a petition to 
the Pardon Attorney \6\; ordinarily, this event triggers the 
Pardon Attorney's involvement. After receiving such a petition, 
the Pardon Attorney makes an initial determination as to 
whether the request merits further investigation. Many do not. 
If it does, the Pardon Attorney investigates the requested 
clemency recipient, typically beginning that investigation by 
contacting the U.S. Attorney's office responsible for 
prosecuting the case.
---------------------------------------------------------------------------
    \5\ U.S.A.M. Sec. 1.6(b).
    \6\ U.S.A.M. Sec. 1.1.
---------------------------------------------------------------------------
    What is not required of the Pardon Attorney is equally 
important. The Pardon Attorney is not required to notify 
victims that a clemency investigation is underway or to 
interview those victims for their viewpoint. Nor is the Pardon 
Attorney required to ask law enforcement agencies whether the 
proposed recipient of clemency could have information related 
to open investigations or searches for fugitives. There is also 
no requirement for the Pardon Attorney to assess the risks 
posed by a particular grant of clemency (especially 
commutations that result in a release from custody) either on 
specific individuals (such as victims, witnesses and 
prosecutors), on particular criminal activity (such as 
enhancing a particular criminal organization), or on society at 
large (by weakening the country's real or perceived resolve to 
fight crime and incarcerate offenders). These areas seem to be 
basic topics of investigation that an officer of the Department 
of Justice should pursue.
    At the conclusion of its investigation, the Pardon Attorney 
is required to prepare a report and recommendation for the 
President.\7\ That report should summarize the Pardon 
Attorney's findings and analyze them in light of generally 
accepted grounds for granting clemency. In the case of 
commutations, the United States Attorneys' Manual describes 
those grounds as follows:
---------------------------------------------------------------------------
    \7\ U.S.A.M. Sec. 1.6(b).

        Generally, commutation of sentence is an extraordinary 
        remedy that is rarely granted. Appropriate grounds for 
        considering commutation have traditionally included 
        disparity or undue severity of sentence, critical 
        illness or old age, and meritorious service rendered to 
        the government by the petitioner, e.g., cooperation 
        with investigative or prosecutive efforts that has not 
        been adequately rewarded by other official action. A 
        combination of these and/or other equitable factors may 
        also provide a basis for recommending commutation in 
        the context of a particular case.\8\
---------------------------------------------------------------------------
    \8\ U.S.A.M. Sec. 1-2.113.

    The Pardon Attorney's involvement typically ends soon after 
the completion of the report, which is sent to the White House. 
When the petition for clemency is either granted or denied by 
the President, the Department must notify the petitioner.\9\ In 
cases where the Pardon Attorney has recommended against 
granting clemency, it is presumed that the President concurs 
with that conclusion unless, within 30 days after the report is 
submitted, the President indicates his disagreement.\10\ If the 
President does not act within 30 days in such a case, then the 
Department must notify the petitioner that the petition is 
denied, and close the case.\11\ The President need not follow 
the Pardon Attorney's advice--nor is he required to read any 
report. The President has the final say over clemency matters.
---------------------------------------------------------------------------
    \9\ U.S.A.M. Sec. Sec. 1.7, 1.8(a).
    \10\ U.S.A.M. Sec. 1.8(b).
    \11\ Id.
---------------------------------------------------------------------------

    2. how current regulations operated in the faln clemency review

a. The absence of applications

    The Pardon Attorney began investigating a potential grant 
of clemency for the FALN terrorists even though none of those 
terrorists had requested clemency. Indeed, none of the 16 terrorists 
ever filed a petition for clemency. The Department of Justice's 
regulations require that persons seeking executive clemency ``shall 
execute a formal petition'' \12\ and state that investigations begin 
``[u]pon receipt of a petition executive clemency.'' \13\ The absence 
of petitions from the FALN and Los Macheteros prisoners was not a mere 
oversight, but rather a result of their belief that the U.S. Government 
has no right to punish them for committing ``political'' acts. This is 
important because it reflects their lack of acceptance of 
responsibility and feelings of remorse. The filing of petitions is also 
important as a matter of administration because the requirement avoids 
the situation in the FALN case where the Pardon Attorney investigated 
potential offers of clemency to two people who refused to accept it 
when offered. The decision to investigate a grant of clemency when no 
petition has been received should always raise this question: Who wants 
the President to grant clemency, and why, in cases where the potential 
recipient has not asked for it?
---------------------------------------------------------------------------
    \12\ U.S.A.M. Sec. Sec. 1.1.
    \13\ U.S.A.M. Sec. 1.6 (a).
---------------------------------------------------------------------------

b. The campaign for release

    On March 5, 1993, Luis Nieves-Falcon, who is believed to be 
a member of the FALN, wrote to President Clinton, Attorney 
General Reno, and Pardon Attorney Margaret Love requesting 
``immediate and unconditional release from prison of Puerto 
Rican independence fighters in U.S. jails and prisons'' and he 
enclosed over 4,000 petitions. Love replied by letter on March 
18, 1993, informing Nieves-Falcon that clemency is considered 
only ``upon formal application by the individual who has been 
convicted.'' Nieves-Falcon again wrote to Clinton, Reno, and 
Love on March 30, 1993, and again on June 1, 1993, and June 11, 
1993. When he wrote again on July 5, 1993, he enclosed 3,000 
more letters in support of release. On November 9, 1993, 
Nieves-Falcon and two others from ``Offensiva '92'' (one of 
whom was Jan Susler of the People's Law Office) wrote ``[a]s 
the legal representatives of the Puerto Rican political 
prisoners in United States custody for their activities in 
support of the independence and self-determination of Puerto 
Rico'' and asked that their letter be taken as a formal 
application by the prisoners. Love notified the White House of 
Offensiva '92's request for the ``immediate and unconditional 
release'' of the Puerto Rican terrorists on November 30, 1993.
    Over the next few years, Offensiva '92 and other radical 
groups organized an enormous letter-writing campaign. Thousands 
of well-meaning people signed form letters, and prominent 
politicians and activists joined the crusade. Letter writers 
included former President Jimmy Carter, New York City Mayor 
David Dinkins, a representative from the National Lawyers 
Guild, a senator from Tasmania, Australia, and representatives 
from the International Association Against Torture, the 
National Association of Black Lawyers, the United Methodist 
Church's General Commission on Religion and Race, and U.S. 
Representatives Jose Serrano (D-NY), Nydia M. Velasquez (D-NY), 
and Luis V. Gutierrez (D-IL).
    As the letter-writing continued, the movement's leaders 
began seeking--and obtaining--face-to-face meetings with top 
Government officials. Such meetings occurred on at least nine 
occasions. Those officials were not just listening--they 
actually provided strategic advice to the terrorists' 
sympathizers about how to present the best case for clemency to 
the President.

c. Victims were shut out

    While the clemency advocates were getting face-to-face 
counsel from high Government officials, no one bothered to 
notify any of the many victims of FALN and Los Macheteros 
crimes that clemency was being considered. The victims learned 
of the clemency offer just like everyone else: on television 
after the fact. Relatives of people killed by the bombs were 
revictimized by hearing on the news that the killers of their 
loved ones were being set free. So, too, were those injured and 
maimed by FALN bombs. In fact, many people who had been touched 
physically, emotionally or financially by America's biggest 
bombing conspiracy felt their wounds re-open on August 11, 
1999.
    The task of identifying and notifying relevant crime 
victims is not beyond the capacity of the Department of 
Justice. In fact, the Department was already well aware of one 
victim, Joe Connor, whose father was killed by the FALN in the 
Fraunces Tavern bombing. The Department wrote to Connor while 
clemency was being investigated and told Connor about the 
Department's ``policy of vigorously investigating and 
prosecuting those acts of terrorism.'' The Department certainly 
could have given Connor the dignity of a letter informing him 
of the ongoing clemency review. Moreover, due to the Victims 
Rights and Restitution Act of 1990, it is now routine practice 
in U.S. Attorney's offices nationwide to notify crime victims 
of material events in the criminal legal process.

d. Possible information on open cases was not even considered

    While victim notification is a relatively recent addition 
to the Justice Department's responsibilities, asking for 
information about unsolved cases is not. Yet no one in the 
Pardon Attorney's Office ever inquired whether the FALN and Los 
Macheteros prisoners might have information relevant to open 
investigations or the apprehension of fugitives. Such an 
inquiry should be self-evident with regard to the FALN and Los 
Macheteros prisoners because one of their codefendants, Victor 
Gerena, is on the FBI's ``ten most wanted'' list. It is also 
well known that many of the killings associated with the FALN 
bombings, including the infamous lunchtime bombing of New 
York's Fraunces Tavern restaurant, remain unsolved. Employees 
of the Department of Justice should have asked such questions. 
The failure to do so in this case could very likely mean that 
Gerena and the other perpetrators of the bombing campaign will 
never be brought to justice.

e. Effect of clemency on threat of criminal activity not considered

    Another area of inquiry that went unexplored is whether law 
enforcement agents had opinions on whether granting clemency to 
the FALN and Los Macheteros terrorists would have an impact on 
terrorism. Such an inquiry would not have taken a lot of 
effort. The Attorney General herself identified the FALN and 
Los Macheteros as terrorist organizations posing an ongoing 
threat to our Nation and concluded that ``[f]actors which 
increase the present threat from these groups [the FALN and Los 
Macheteros] include renewed activity by a small minority 
advocating Puerto Rican statehood, the 100-year anniversary of 
the U.S. presence in Puerto Rico, and the impending release 
from prison of members of these groups jailed for prior 
violence.'' \14\ This report came from under the same roof as 
the Pardon Attorney's. Moreover, another Justice Department 
official, FBI Director Louis Freeh concluded that the release 
of the FALN terrorists would ``psychologically and 
operationally enhance'' the ongoing violent and criminal 
activities of Puerto Rican terrorist groups and ``would likely 
return committed, experienced, sophisticated and hardened 
terrorists to the clandestine movement.'' \15\ Such information 
has critical import to possible grants of clemency and must be 
included in any report and recommendation.
---------------------------------------------------------------------------
    \14\ Five-Year Interagency Counterterrorism and Technology Crime 
Plan, Sept. 1999, at 11 (emphasis added).
    \15\ Draft letter from FBI Director Louis Freeh to Representative 
Henry J. Hyde.
---------------------------------------------------------------------------

f. Information from intelligence agencies

    The Pardon Attorney did not interview intelligence agencies 
concerning possible links between the FALN and Los Macheteros 
prisoners and state-sponsored crime and terrorism. If the 
Pardon Attorney had done so, perhaps it would have come to 
light before the President granted clemency that the FALN and 
Los Macheteros have close ties to the Cuban Government and 
quite possibly shared with Cuba the spoils of its crimes in 
America. According to Jorge Masetti, a former Cuban 
intelligence agent, Cuba's intelligence agency helped Los 
Macheteros to plan and execute the $7.1 million Wells Fargo 
robbery--the biggest cash heist in U.S. history--by providing 
funding and training, as well as by assisting in smuggling the 
money out of the country. Some sources estimate that $4 million 
from the robbery ended up in Cuba. The Pardon Attorney should 
be obligated by law to uncover such information when it exists 
and make it available to the President who is considering 
granting clemency.

g. The pardon attorney's reports did not comply with regulations

    Although it submitted a report in December 1996 
recommending against the granting of clemency for the FALN 
terrorists--which should have ended its involvement--the Pardon 
Attorney produced another report 2\1/2\ years later reportedly changing 
its recommendation. The second report did not recommend either for or 
against the granting of clemency, violating the Justice Department 
regulation requiring that in every clemency case the Department ``shall 
report in writing [its] recommendation to the President, stating 
whether in [its] judgment the President should grant or deny the 
petition.''

     3. proposed justice department regulations are also inadequate

    Legislation is necessary to remedy the deficiencies in the 
operation of the Office of the Pardon Attorney that were 
exposed during the pendency of the FALN clemency review. A 
change of Department regulations will not be sufficient. 
Despite having half a year since the public outcry over the 
FALN clemency to reform itself, the Department has suggested 
only minimal changes in the way it does business. In its draft 
regulations, the Department agrees that it should ascertain the 
views of victims, but gives the Attorney General the ability to 
determine whether or not to do so in each case. The 
Department's proposal also fails to notify victims when it 
undertakes a clemency investigation or when it makes available 
its report to the President.
    Equally important, the Department's suggested regulations 
ignore the Department's main job: to protect law-abiding people 
from criminal acts. The draft regulations do not require the 
Pardon Attorney to talk to law enforcement officials about 
whether a particular person could provide helpful information 
about criminal investigations or searches for fugitives. Nor 
would the Department require the Pardon Attorney to ask law 
enforcement whether a potential release from prison would pose 
a risk to specific people other than victims or to a broader 
societal interest such as enhancing a particular criminal 
organization or decreasing the deterrent value of prison 
sentences. The Department's proposed regulations also ignore 
the importance of whether a potential clemency recipient has 
accepted responsibility for, or feels remorse over, criminal 
acts.
    Even if the Department's proposed regulations were 
substantially similar to this bill, moreover, those regulations 
could not overcome what is perhaps the most important weakness 
of all: regulations are not law. They do not have the force of 
statutes, and they can be changed very easily. The FALN case 
proves the need for a statute because the Attorney General 
ignored even the current, weak regulations in the FALN matter. 
As discussed above, it is clear that the Pardon Attorney did 
not follow the Justice Department regulations requiring 
petitions to be submitted before an investigation into a 
potential grant of clemency is begun and requiring the Pardon 
Attorney to make a recommendation either for or against 
clemency.

                            III. Discussion


                       A. Overview of Legislation

    S. 2042, the Pardon Attorney Reform and Integrity Act, 
would provide guidance to the Office of the Pardon Attorney to 
gather critical law enforcement and victim information in those 
particular cases in which the President chooses to have that 
Office conduct a clemency investigation. Such information would 
include facts and opinions from law enforcement agencies about 
the risks posed by any release from prison. The bill would also 
help ensure that the victims of crime will not be shut out of 
the clemency process. Specifically, the bill would do the 
following:

 Give victims a voice by notifying them of key events 
        in the clemency process and by giving them an 
        opportunity to submit their opinions;
 Enhance the input of law enforcement by requiring the 
        Pardon Attorney to notify the law enforcement community 
        of a clemency investigation and permitting law 
        enforcement to express its views on:
 The impact of clemency on the individuals affected by 
        the decision--for example, victims and witnesses;
 Whether clemency candidates have information which 
        might help in open investigations and searches for 
        fugitives; and
 Whether granting clemency will increase the threat of 
        terrorism or other criminal activity by enhancing 
        particular organizations or affecting the public 
        perception of the Government's resolve to locate, 
        prosecute and incarcerate criminals.

    These provisions would apply only if the President (or his 
delegate, including the Attorney General) chose to ask the 
Office of the Pardon Attorney to conduct a clemency 
investigation in a particular case. This bill would affect only 
the Pardon Attorney, and would do so only when the President 
decided to give a case to the Pardon Attorney. Accordingly, 
this bill would preserve the full range of Presidential 
constitutional power to exercise the pardon power solely 
according to the President's best judgment. Moreover, this bill 
would also leave untouched the current system by which the 
Pardon Attorney exercises discretion to determine which 
petitions for clemency lack sufficient merit to justify the 
commencement of an investigation. The provisions of this bill 
are not meant to apply to nonmeritorious clemency petitions.

                  B. Questions About Constitutionality

    The Department of Justice has opined that the Pardon 
Attorney Reform and Integrity Act is unconstitutional.\16\ The 
rationales for this opinion include the general nature of 
executive power, the pardon power, and the President's need to 
obtain confidential advice.
---------------------------------------------------------------------------
    \16\ Letter from Robert Raben, Assistant Attorney General, Office 
of Legislative Affairs, to the Honorable Orrin G. Hatch, Chairman, 
Senate Committee on the Judiciary (Feb. 17, 2000) (``DOJ letter'').
---------------------------------------------------------------------------

               1. bill's effect on pardon power generally

    The Department's assertion that the Pardon Attorney Reform 
and Integrity Act is unconstitutional is based for the most 
part on the Department's observation that the pardon power ``is 
committed exclusively to the President.'' \17\ According to the 
Department, ``because the President's pardon authority is 
plenary, even statutes that create what may seem to be only 
minor incursions on the President's discretion are 
unconstitutional.'' \18\ Professor Amar has concluded that much 
of the Department's letter is ``irrelevant and overwrought.'' 
\19\ If the Department's position is correct, the Office of 
Pardon Attorney ``as it currently exists'' would be 
unconstitutional.\20\
---------------------------------------------------------------------------
    \17\ DOJ letter at 2.
    \18\ Id. at 4.
    \19\ Letter from Akhil Reed Amar, Southmayd Professor, Yale Law 
School, to the Honorable Orrin G. Hatch, Chairman, Senate Committee on 
the Judiciary (Feb. 23, 2000) (``Amar letter'') at 2.
    \20\ Amar letter at 4.
---------------------------------------------------------------------------
    S. 2042 does not create even a minor ``incursion on the 
President's discretion.'' It does not modify, restrict or 
condition the President's exercise of the pardon power in any 
way. Nor does it attempt to change the effect of any grant of 
clemency. Rather, it affects how the DOJ's Office of the Pardon 
Attorney--a congressionally created and funded office--performs 
its investigation, and its requirements apply only when the 
President asks the Pardon Attorney to investigate a particular 
clemency request. The bill does not require the President to 
ask the Pardon Attorney for advice, nor does it preclude the 
President from seeking any other information or advice from any 
source whatsoever, including the Attorney General herself. The 
bill has no effect on the confidentiality of any information; 
it does change the law of executive privilege and does not 
purport to give Congress the right to read any information or 
advice prepared by the Pardon Attorney or provided to the 
President.
    Because the Department's arguments do not refer to any of 
the actual terms of S. 2042, it is important to keep in mind 
the context of the Department's opinion. The Department is 
known for taking extreme positions in favor of executive rights 
and prerogatives. This is the same Department that responded to 
this Committee's requests for documents and testimony by 
claiming that Congress lacks any oversight jurisdiction 
whatsoever concerning the operations of the Office of the 
Pardon Attorney. The Department's position is wrong. Congress 
clearly does have such oversight jurisdiction, as pointed out 
by the noted constitutional scholar and Yale Law School 
Professor Akhil Amar:

        [T]he argument that Congress has no proper role in 
        investigating suspicious pardons orgrants of clemency 
is constitutionally cockeyed. True, the Constitution vests the 
president and the president alone with the pardon power--but the same 
is true of the powers to veto laws, to appoint Cabinet officers, to 
command the Armed Forces, to negotiate treaties, and to do a great many 
other things. These other powers are not immune from congressional 
oversight; why should the pardon power be any different? In theory, any 
one of these powers might be used corruptly--for example, in exchange 
for a bribe.

        And, even if a pardon is utterly final, Congress surely 
        has a legitimate role in assessing whether the Justice 
        Department's general system for processing pardon 
        requests needs revamping. (Congress, after all, foots 
        the bill for this and all other executive departments.) 
        \21\
---------------------------------------------------------------------------
    \21\ Amar, Akhil Reed, ``Scandalized,'' The New Republic, Oct. 11, 
1999.

In sum, the Department's hard-line position favoring executive 
power is irrelevant to S. 2042, which simply is not an 
``incursion'' into the President's pardon power, and is 
incorrect with respect to jurisdiction over the Pardon 
Attorney, which is a congressionally created and funded office.

                2. case law concerning the pardon power

    Rather than analyzing cases applicable to Congress' power 
to regulate the agencies it creates and funds, the Department 
instead relies upon the few Supreme Court cases concerning 
congressional attempts to change the President's authority 
pursuant to the Pardon Power. Those cases are not on point with 
respect to S. 2042 because it does not affect any pardon power 
decisions. The bill is consistent with the Supreme Court's 
opinions relating to the pardon power. The bill neither 
``change[s] the effect of * * * a pardon'' as described in 
United States v. Klein, 80 U.S. (13 Wall.) 128 (1872), nor will 
it ``modif[y], abridge[], or diminish[]'' the President's 
authority to grant clemency as discussed in Schick v. Reed, 419 
U.S. 256, 266 (1974). In fact, the bill will have no effect 
whatsoever on the President's ability to exercise the pardon 
power as he or she sees fit.
    Moreover, the Department ignores the fact that, despite 
Klein, the Supreme Court has also upheld at least two cases 
limiting the effect of pardons. In Carlesi v. New York, 233 
U.S. 51 (1914), the Court found that it was within the power of 
the legislative branch to determine what effect a pardon would 
have on future criminal sentences. And in Knote v. United 
States, 95 U.S. 149 (1877), the Court held that the President 
cannot use the pardon power to order the treasury to refund 
money taken from a prisoner--even though that prisoner had been 
pardoned for the crime that gave rise to the Government's 
seizure of that money. Even though these cases are no more 
relevant to the Pardon Attorney bill than those cited by the 
Department (because the bill does not limit the effect of 
pardons), the fact that the Supreme Court has approved certain 
limitations on the President's pardon authority demonstrates 
that this area of law is not absolutely immune from Congress as 
the Department suggests.
    The fact that S. 2042 does not limit the President's 
deliberation over pardons is the reason that the Department's 
heavy reliance on Public Citizens v. Dep't of Justice, 491 U.S. 
440 (1989) is misplaced. There the Court considered the 
application of a statute, the Federal Advisory Committee Act 
(FACA), to the Department which would have subjected the 
process involving judicial nominations to ``bureaucratic 
intrusion and public oversight.'' Id. at 454 n.9. At issue was 
the allegation that the Department of Justice could not consult 
with the American Bar Association concerning judicial nominees 
unless the ABA made its meetings on the subject presumptively 
open to the public. Id. at 446-47. The Court reached no firm 
conclusion about the constitutionality of such a requirement in 
that case, holding only that the constitutional issues were 
``serious[].'' Id. at 467. FACA, as the concurring Justices 
construed it, literally applied to the President himself, and 
to any advice--even informal advice from friends-that he might 
seek. FACA's language literally applied to all groups of 
persons ``utilized by the President.'' As the Court majority 
pointed out, a literal reading of the act would seem to deprive 
the President of the ability to confer in confidence with the 
NAACP or the American Legion or his own political party.
    Obviously, there is a vast difference between FACA, making 
public what had previously been confidential executive branch 
deliberations, and S. 2042, which has no impact whatsoever on 
the laws and privileges that shield the Pardon Attorney's work 
from public view. Justice Kennedy's concurrence in Public 
Citizen expressed fear that the statute in that case would 
``potentially inhibit the President's freedom to investigate, 
to be informed, to evaluate, and to consult during the 
nomination process * * *.'' Id. at 488 (Kennedy, J., 
concurring). Nothing in S. 2042 would remotely have these kinds 
of effects. Indeed, the Pardon Attorney bill explicitly states 
that the President will retain the ability to seek information 
and advice from whatever sources he or she chooses.
    A Supreme Court decision more directly on point is Nixon v. 
Administrator of General Services, 433 U.S. 425 (1977), which 
concerned a statute that instructs the executive branch on how 
to maintain Presidential records. The Court rejected as 
``archaic'' the view that separation of powers requires ``three 
airtight departments of government.'' Id. at 443 (internal 
quotation omitted). Instead, the Court instructed that ``the 
proper inquiry focuses on the extent to which it prevents the 
Executive Branch from accomplishing its constitutionally 
assigned functions.'' Id. at 443. ``Only where the potential 
for disruption is present,'' the Court held, ``must we then 
determine whether that impact is justified by an overriding 
need to promote objectives within the constitutional authority 
of Congress.'' Id. In the context of the Pardon Attorney bill, 
the modest step of requiring the Pardon Attorney to consult 
with law enforcement and victims would not ``disrupt'' the 
proper exercise of the President's pardon power in any way. 
Indeed, the Department's analysis of the bill does not offer 
any example of how the bill would disrupt executive functions. 
To the contrary, the Department's current analysis \22\ of the 
issues relies on the sweeping claim that ``any'' intrusion by 
the legislative branch is unconstitutional, without regard to 
the effects.\23\ Whatever the merits of such a broad view of 
executive power, it is plainly not the law.
---------------------------------------------------------------------------
    \22\ The Department concedes that its current analysis differs from 
the position its own Office of Legislative Affairs took in 1975. See 
DOJ letter at p. 5 n.3 (discussing Memorandum for Hon. James. T. Lynn, 
Director of OMB, from Asst. A.G. Michael M. Uhlman, Office of 
Legislative Affairs, in which the Office reasons that Congress ``might 
also be able to authorize an executive branch agency to make pardon 
suggestions'').
    \23\ DOJ letter at 3.
---------------------------------------------------------------------------

           3. congress' alleged attempt to influence pardons

    The Department's assertion that the Pardon Attorney bill is 
unconstitutional because it attempts to allow Congress to 
express its opinion on clemency matters is utterly without 
basis. According to the Department, the Pardon Attorney bill is 
unconstitutional because it ``seeks to influence the 
President's consideration of clemency'' and its ``manifest 
purpose'' is ``to ensure that the President is aware of views 
that Congress believes the President should consider * * *'' 
\24\ This argument is a misreading of both the Constitution and 
the Pardon Attorney bill.
---------------------------------------------------------------------------
    \24\ DOJ letter at 3.
---------------------------------------------------------------------------
    The Supreme Court tacitly acknowledged in United States v. 
Klein, 13 Wall. 128, 139 (1871) that a congressional 
``suggestion of pardon'' does not raise constitutional issues. 
(The Department acknowledges that this is the Department's 
reading of Klein.) \25\ Indeed, if it were unconstitutional for 
Congress to express an opinion on clemency matters, a ``sense 
of the Senate'' resolution on pardon matters--including the one 
condemning President Clinton's decision to free the FALN 
terrorists--would also be unconstitutional. Clearly, this is 
not the law.
---------------------------------------------------------------------------
    \25\ DOJ letter at 5 n.3 (discussing Memorandum for Hon. James. T. 
Lynn, Director of OMB, from Asst. A.G. Michael M. Uhlman, Office of 
Legislative Affairs, in which the Office reasons that Congress ``might 
also be able to authorize an executive branch agency to make pardon 
suggestions'').
---------------------------------------------------------------------------
    Moreover, the Pardon Attorney bill does not have either the 
intent or the effect of making the President aware of certain 
views. The bill requires the Pardon Attorney to interview 
certain sources of potentially relevant information, but does 
not require the Pardon Attorney to seek out or report any 
particular views. The Department seems to assume that the bill 
requires the Pardon Attorney to express only the view against 
clemency, an assumption for which there is no basis.

           4. notice to victims and confidentiality of advice

    The Department's argument that the bill's victim-
notification requirements ``impermissibly interfere with the 
President's right to maintain confidentiality of the pardon 
decision-making process'' \26\ is perhaps the Department's 
weakest point. The Pardon Attorney bill does not require public 
disclosure of any deliberations or advice given to the 
President, including the Pardon Attorney's report and 
recommendation. On the contrary, the bill simply provides 
victims notice that certain material events in the clemency 
process have occurred. Analogous notifications to victims are 
given in most of the criminal proceedings throughout the 
country due to laws such as the Federal Victims' Rights and 
Restitution Act of 1990. In fact, the U.S. Attorney's Manual 
already requires the Pardon Attorney to provide notice to the 
petitioner when the President grants or denies a clemency 
request, and when a clemency petition is deemed denied, which 
occurs in the absence of Presidential action 30 days after the 
Pardon Attorney submits a report recommending denial of 
clemency.\27\ Revealing such information--even to victims--does 
not compromise the confidentiality of the President's 
deliberations and advice any more than notice of a sentencing 
hearing compromises a judge's ability to talk candidly with 
probation officers and law clerks.
---------------------------------------------------------------------------
    \26\ DOJ letter at 5.
    \27\ U.S.A.M. Sec. Sec. 1.7, 1.8.
---------------------------------------------------------------------------
    Moreover, allowing victims to voice their opinions is 
important both to the interests of justice and to the victims 
themselves. As Prof. Paul G. Cassell explained in his testimony 
on behalf of the National Victims' Constitutional Amendment 
Network before the Subcommittee on the Constitution, 
Federalism, and Property Rights of the Senate Judiciary 
Committee:

          Providing victims an opportunity to be heard before 
        clemency decisions are made, as many of these states 
        have done, makes considerable sense both as a matter of 
        public policy and fundamental justice. Just as 
        sentencing judges and prosecutors possess important 
        information about a case, so too do victims have vital 
        information about the effects of the crime that ought 
        to be considered before any clemency decision is 
        finalized. As the President's Task Force on Victims of 
        Crime has explained, No one know better than the victim 
        how dangerous and ruthless the [clemency] candidate was 
        before * * *.'' Victim participation at the clemency 
        stage is also vital to insure that victim participation 
        at earlier points in the process is not rendered 
        irrelevant. It makes little sense to give victims a 
        right to be heard at proceedings concerning plea 
        bargains, sentencing and parole (as provided in Senate 
        Joint Resolution 3 and in the laws of Missouri and many 
        states) if, after all that, a pardon or commutation can 
        be granted without their involvement or, indeed, even 
        their knowledge. It is, moreover, important that 
        victims be notified that a possible commutation of 
        sentence when that commutation might entail release of 
        an offender. Victims have legitimate interests in 
        release decisions, the President's Task Force 
        concluded, ``not only because of the desire for the 
        service of a just sentence but also because of their 
        legitimate fear of revictimization once the defendant 
        is released.'' \28\
---------------------------------------------------------------------------
    \28\ See Statement of Paul G. Cassell on behalf of the National 
Victims' Constitutional Amendment Network before the Subcommittee on 
the Constitution, Federalism, and Property Rights of the Sen. Judiciary 
Committee (May 1, 1999).
---------------------------------------------------------------------------

                           5. opinions clause

    The opinions clause says that the President ``may require 
the Opinion, in writing, of the principal Officer in each of 
the executive Departments, upon any Subject relating to the 
Duties of their respective Offices.'' Art. II, sec. 2. The 
``principal officer'' of the Department of Justice is the 
Attorney General, not lower level officials such as the Pardon 
Attorney. As one noted Constitutional scholar put it, ``the 
`principal Officer' language * * * exemplifies the Founders' 
expectation that the President will ordinarily pick, act 
through, and monitor only a handful of personal lieutenants--
his inner circle.'' \29\ No one would suggest that the Pardon 
Attorney is the principal officer of the Department or one of 
the President's ``handful of personal lieutenants.''
---------------------------------------------------------------------------
    \29\ Amar, Akhil Reed, ``Some Opinions on the Opinion Clause,'' 82 
Va. L. Rev. 647, 667 (1996).
---------------------------------------------------------------------------
    The Pardon Attorney bill was not meant to apply to 
situations where the President solicits advice directly from 
the Attorney General. In drafting the bill, we used the term 
``Attorney General'' as a global term meaning the Pardon 
Attorney or anyone at the Department of Justice because this 
use is a widely followed convention in legislative drafting. 
The technical and clarifying amendment--changing the term 
``Attorney General'' to ``Pardon Attorney'' wherever it appears 
(except the last paragraph, which requires the Attorney General 
to promulgate regulations)--alleviates any concerns relating to 
the opinion clause because it clarifies that the provisions of 
the Pardon Attorney bill do not come into play when the 
President solicits opinions and advice directly from the 
Attorney General. The amendment also adds a phrase explicitly 
clarifying that the bill shall not be construed to ``limit the 
President's ability to seek advice directly from the Attorney 
General or any informal advisor regarding any pardon matter.''

       6. article ii executive power and congressional oversight

    The Department alleges that the Pardon Attorney bill 
``may'' impinge upon the President's power to ``take care that 
the laws be faithfully executed'' and his authority to exert 
``general administrative control of those officers executing 
the laws.'' \30\ But it is Congress, not the President, that 
has the authority--indeed, the responsibility--to examine and 
legislate the manner in which the Justice Department performs 
its work. Congress created an ``attorney in charge of pardons'' 
within the Department of Justice in 1891, and appropriated 
money for an ``attorney in charge of pardons'' in that same 
year. To this day, the Office of the Pardon Attorney depends on 
funds appropriated annually by the Congress. In the most recent 
appropriations legislation, the Congress appropriated $1.6 
million for the Pardon Attorney for the fiscal year ending 
September 30, 2000. This congressional involvement--creation 
and funding of the office-provides a compelling basis for the 
Judiciary Committee's investigation and the present 
legislation. Professor Amar explained:
---------------------------------------------------------------------------
    \30\ 30 DOJ letter at 5.

        The Constitution does no require that such a low-level 
        office even exist. It is up to the Congress to decide 
        whether to create such an office; and how to fund it. 
        The most relevant constitutional power here is 
        Congress's power of the purse, not the President's 
        power of the pardon.\31\
---------------------------------------------------------------------------
    \31\ Amar letter at 3.

    The power of the Congress ``to conduct investigations is 
inherent in the legislative process. That power is broad. It 
encompasses inquiries concerning the administration of existing 
laws as well as proposed or possibly needed statutes.'' Watkins 
v. United States, 354 U.S. 178, 187 (1957). The scope of this 
power is as penetrating and far-reaching as the potential power 
to enact and appropriate under the Constitution. Eastland v. 
United States Servicemen's Fund, 421 U.S. 491, 504 n. 15 (1975) 
(quoting Barenblatt v. United States, 360 U.S. 109, 111 
(1959)). The Supreme Court has also recognized ``the danger to 
effective and honest conduct of the Government if the 
legislative power to probe corruption in the Executive Branch 
were unduly hampered.'' Watkins, 354 U.S. at 194-95. Once 
having established its jurisdiction and authority, and the 
pertinence of the matter under inquiry to its area of 
authority, a committee's investigative purview is substantial 
and wide-ranging. Wilkinson v. United States, 365 U.S. 408-09 
(1961).
    Congress also has broad powers under the Constitution to 
``make all Laws which shall be necessary and proper for 
carrying into Execution the foregoing Powers, and all other 
Powers vested by this Constitution in the Government of the 
Unites States, or in any Department of Officer thereof.'' The 
areas in which Congress may potentially legislate or 
appropriate are, by necessary implication, even broader. Thus, 
in determining whether Congress has jurisdiction to oversee and 
enact legislation, deference should be accorded to Congress' 
decision.
    Because of this legal history, the administration of the 
Department of Justice and its various components has long been 
considered an appropriate subject of Congressional oversight. 
Early this century, in McGrain v. Daugherty, 273 U.S. 135, 151 
(1927), the Supreme Court endorsed Congress' authority to study 
``charges of misfeasance and nonfeasance in the Department of 
Justice.'' In that case, which involved a challenge to 
Congress' inquiry into the DOJ's role during the Teapot Dome 
scandal, the Court concluded that Congress had authority to 
investigate ``whether [DOJ's] functions were being properly 
discharged or were being neglected or misdirected, and 
particularly whether the Attorney General and his assistants 
were performing or neglecting their duties in respect of the 
institution.'' Id. at 177. These precedents make clear that the 
Judiciary Committee has jurisdiction to investigate the Pardon 
Attorney's role in the pardon process, and to enact legislation 
concerning the way in which that office operates.

                       IV. Vote of the Committee

    On January 24, 2000, with a quorum present, the Judiciary 
Committee met in executive session and considered and accepted 
by voice vote a technical and clarifying amendment offered by 
Chairman Hatch. The bill, as amended, was then ordered 
favorably reported to the full Senate by voice vote.

                     V. Section-by-Section Analysis


Section 1.--Short title

    The bill is titled the ``Pardon Attorney Reform and 
Integrity Act.''

Section 2.--Reprieves and pardons

    Definitions. Subsection (a) defines ``executive clemency'' 
as any exercise of the President's power under article II, 
section 2 to grant reprieves and pardons, including pardons, 
commutations, reprieves and remissions of fines. It defines 
``victim'' to match the definition employed in the Victims 
Rights and Restitution Act of 1990 (42 U.S.C. 10607(e)).
    Reporting Requirement. Subsection (b) requires the Pardon 
Attorney to prepare a written report and make it available to 
the President whenever the President asks for an investigation 
into a particular potential grant of executive clemency. Each 
such report must contain a description of the efforts made by 
the Pardon Attorney to comply with the bill's requirements, and 
must attach copies of any written statements submitted by 
victims.
    Determinations Required. Subsection (c) requires the Pardon 
Attorney to: (1) determine the opinions of relevant victims 
concerning potential grants of executive clemency, and to 
inform those victims that they may submit written statements 
for inclusion with the Pardon Attorney's report and 
recommendation; (2) determine the opinions of relevant law 
enforcement officials about whether specific potential grants 
of executive clemency are appropriate, whether such grants 
would cause danger to society, and whether the potential 
recipients of such grants have accepted responsibility for, or 
expressed remorse over, their criminal conduct; (3) determine 
the opinions of relevant law enforcement officials about 
whether the potential recipients of executive clemency may have 
information relevant to ongoing investigations, prosecutions, 
or efforts to apprehend fugitives; and (4) determine the 
opinions of relevant law enforcement and intelligence officials 
regarding whether specific grants of executive clemency would 
affect the threat of terrorism or other criminal activity.
    Notification to Victims. Subsection (d) requires the Pardon 
Attorney to notify relevant victims of the following material 
events in the clemency process: (A) when the Pardon Attorney 
begins a review or investigation of potential grant of 
executive clemency; (B) when the Pardon Attorney submits its 
report and recommendation to the President; (C) when the 
President decides to grant or deny clemency. In addition, when 
the President's decision to grant executive clemency will 
result in the release of a prisoner, the Pardon Attorney must 
notify relevant victims prior to any such release from prison 
if practicable.
    No Effect on Other Actions. Subsection (e) clarifies that 
this bill does not: (1) limit the President's ability to seek 
advice directly from the Attorney General or any informal 
advisor regarding any pardon matter; (2) prevent any Justice 
Department officials from contacting anyone in connection with 
the investigation or review of any potential grant of executive 
clemency; (3) prohibit the inclusion of any information or 
advice in any report to the President; or (4) affect the manner 
in which the Pardon Attorney determines which petitions or 
requests for executive clemency lack sufficient merit to 
warrant any investigation.
    Applicability. Subsection (f) clarifies that this bill does 
not apply to any petition or request for executive clemency 
which the Pardon Attorney determines lacks sufficient merit to 
warrant any investigation.
    Regulations. Subsection (g) requires the Attorney General, 
within 90 days after enactment, to promulgate regulations for 
compliance with this act.

                           VI. Cost Estimate

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, March 6, 2000.
Hon. Orrin G. Hatch,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 2042, the Pardon 
Attorney Reform and Integrity Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Lanette J. 
Keith, who can be reached at 226-2860.
            Sincerely,
                                    (for Dan L. Crippen, Director).
    Enclosure.

               congressional budget office cost estimate


S. 2042--Pardon Attorney Reform and Integrity Act

    CBO estimates that implementing S. 2042 could increase 
discretionary spending by up to $2 million a year, assuming the 
appropriation of the necessary amounts. Because the bill would 
not affect direct spending or receipts, pay-as-you-go 
procedures would not apply. S. 2042 contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act and would impose no costs on 
state, local, or tribal governments.
    S. 2042 would set requirements for reports written by the 
Office of the Pardon Attorney, within the Department of Justice 
(DOJ), regarding petitions for clemency. The legislation would 
require each report to include opinions of federal, state, and 
local law enforcement officials, judges, prosecutors, probation 
officers, prison officials, and victims. In addition, the bill 
would require the office to notify the victims of each offense 
committed by an individual who is subject to a grant of 
clemency.
    The Office of the Pardon Attorney receives and reviews 
approximately 1,000 petitions for clemency each year with 15 
full-time staff members and a current annual budget of $1.6 
million. Many of the petitions require little investigation 
beyond gathering a pre-sentence report and any published court 
options. If a summary denial is not determined after the 
initial review, further investigation may include contacting 
victims and officials involved in the case. Currently, the 
office investigates all petitions for clemency; therefore, we 
assume all petitions would fall under the provisions of S. 
2042.
    Based on information from DOJ, CBO expects that S. 2042 
could double the workload of the Office of the Pardon Attorney. 
The increase in workload would stem from the additional time 
and effort necessary to meet the bill's requirements to contact 
and determine the opinions of all individuals involved in each 
case. CBO estimates that implementing S. 2042 would increase 
discretionary spending by up to $2 million a year, assuming the 
appropriation of the necessary amounts. The cost to implement 
this legislation could vary, however, depending on DOJ's 
interpretation of the requirements that would be established by 
the bill.
    The CBO staff contact for this estimate is Lanette J. 
Keith, who can be reached at 226-2860. This estimate was 
approved by Peter H. Fontaine, Deputy Assistant Director of 
Budget Analysis.

                    VII. Regulatory Impact Statement

    Pursuant to paragraph 11(b), rule XXVI of the Standing 
Rules of the Senate, the Committee, after due consideration, 
concludes that S. 2042 will not have direct regulatory impact.

       VIII. MINORITY VIEWS OF SENATORS LEAHY, KOHL, AND FEINGOLD

                            i. introduction

    President Clinton's August 11, 1999 offer of clemency to 16 
members of the FALN, a Puerto Rican separatist group, was an 
exercise of the Presidential prerogative to grant pardons. We 
disagree with the President's decision and yet recognize that 
the U.S. Constitution has expressly granted the President the 
exclusive authority to take such action.
    We believe strongly in the right of victims to be included 
in all phases of the criminal process, including reviews 
conducted in connection with petitions for executive clemency. 
Moreover, we support efforts by the Department of Justice to 
implement regulations and policies to ensure that victims are 
included in the clemency process in the future.
    Consequently, we share the goals of the sponsors of S. 2042 
to protect victims in the clemency process. Given this 
bipartisan support for the goals of the legislation, the 
partisan wrapping in which this bill has been cloaked is both 
unnecessary and unfortunate. Discussion about the bill should 
focus not on the merits of the President's grant of clemency to 
16 members of the FALN, but rather on the propriety and 
constitutionality of the statute sought to be enacted.
    At the time of the Judiciary Committee's reporting of this 
measure without objection, it was noted that the Department of 
Justice was consulting with the Chairman, Ranking Democrat and 
other interested members of the Committee on improvements to 
their internal guidelines, improvements that could make this 
bill unnecessary. Rather than pursue those discussions, the 
majority now seems obsessed with scoring a partisan legislative 
victory.
    Unfortunately, this bill remains a work in progress. 
Serious concerns about the constitutionality and practical 
effect of S. 2042 have been raised that need to be weighed 
carefully. Indeed, according to the Congressional Budget Office 
Cost Estimate of March 6, 2000, the bill could double the 
workload of the Office of the Pardon Attorney (``OPA'') and 
more than double the discretionary spending needed for that 
Office.
    Moreover, as discussed in more detail below, the new 
statutory obligations proposed by S. 2042 could delay the 
ability of the President to act independently and quickly in 
those special cases which such prompt attention is warranted.

               ii. factual errors in the majority report

    Without dissecting or commenting on the accuracy of every 
factual assertion made in the Committee Report, particularly 
those not directly related to the legislation, several errors 
in the majority report are deserving of correction at the 
outset.
    First, the Report maligns the Justice Department for 
withholding information sought by the Committee on the grounds 
of executive privilege. Rpt. at 4. It is worth noting that the 
privilege was asserted by the President, not the Justice 
Department. Tr. at 12.
    Second, the Report erroneously suggests that after 
receiving a petition for clemency, the Office of the Pardon 
Attorney makes an initial determination whether there will be 
further investigation and that for many petitions there is not. 
Rpt. at 6. The Pardon Attorney detailed the procedures of his 
Office at a September 13, 1999, briefing and during his October 
20, 1999, testimony before the Committee. He advised that 
petitions are initially assigned to a line attorney in the 
Office. That attorney conducts some investigation, such as 
obtaining the Judgment of Conviction, the Presentence Report 
and a prison report. Tr. at 18. If the information from those 
sources is deemed insufficient, or if the petition is deemed to 
have some merit, further investigation is done--such as the 
contacting of the appropriate United States Attorney's Office. 
In short, the Pardon Attorney does some investigation in nearly 
every case and significant work has frequently already been 
done before a United States Attorney's Office is contacted. 
Given this fact, S. 2042, as currently drafted, may well apply 
to far greater numbers of cases than was apparently intended.
    Third, the Report states that none of those offered 
clemency ``ever filed a petition for clemency.'' Rp. at 8 
(emphasis in original). As the Deputy Attorney General 
(``DAG'') explained during his October 20, 1999, testimony, the 
clemency petitions for the FALN members ``were filed on their 
behalf by their attorney.'' Tr. at 38.
    Fourth, the majority asserts that the Department's proposed 
regulations ``ignore the importance of whether a potential 
clemency recipient has accepted responsibility for, or feels 
remorse over, criminal acts.'' Rpt. at 12. As set forth in the 
guidelines already on the books, this is already a factor 
considered in pardon reviews. See U.S.A.M. Sec. Sec. 1-2.111; 
1-2.112(c).
    Fifth, the majority claims that the bill's requirements 
would ``affect only the Pardon Attorney, and would do so only 
when the President decided to give a case to the Pardon 
Attorney.'' Rpt. at 14. As a practical matter, nearly every 
petition for executive clemency is reviewed and investigated by 
the Pardon Attorney. Last year, the Pardon Attorney received 
1,009 petitions for clemency, 748 of which were for 
commutations and 261 of which were for pardons.
    The volume of petitions has always been high. For example, 
during the seven years President Clinton has been in office, 
5,324 petitions were filed. President Clinton granted 146 
pardons and 15 commutations. During President Bush's four years 
in office, the Pardon Attorney received 1,466 petitions. 
President Bush granted 74 pardons and 3 commutations. The 
Pardon Attorney received 3,404 petitions during President 
Reagan's eight years in office and he granted 393 pardons and 
16 commutations. During President Carter's four years in 
office, the Pardon Attorney received 2,627 petitions. President 
Carter granted 539 pardons and 29 commutations. During 
President Ford's two-and-one-half year term, the Pardon 
Attorney, received 1,527 petitions. President Ford granted 382 
pardons and 22 commutations. Finally, 2,592 petitions were 
received during President Nixon's abbreviated two terms and he 
granted 863 pardons and 60 commutations.
    The Pardon Attorney advised that he was only aware of two 
instances where clemency was granted outside of the Pardon 
Attorney process: President Ford's pardon of Richard Nixon and 
President Bush's pardon of Iran-Contra figures.
    In short, this bill will affect nearly every petition for 
executive clemency because no president will have the time to 
review, investigate and assess the merits of hundreds of 
petitions a year without the help of the Pardon Attorney.
    Finally, in an attempt to defend against an assertion by 
the Justice Department that the bill attempts to influence the 
President's consideration of petitions for clemency, the 
majority claims that the bill ``does not have either the intent 
or the effect of making the President aware of certain views'' 
and ``does not require the Pardon Attorney to seek out or 
report any particular views.'' Rpt. at 19. To the contrary, the 
bill requires the Pardon Attorney to seek out the views and 
opinions of ``law enforcement officials, investigators, 
prosecutors, probation officials, judges, and prison officials 
involved in apprehending, prosecuting, sentencing, 
incarcerating, or supervising the conditional release from 
imprisonment of the [petitioner]'' on a whole host of matters. 
Sec. 2(c)(2)-(4). It also requires the Pardon Attorney to 
determine the opinions of victims. Sec. 2(c)(1). Moreover, the 
bill requires the Pardon Attorney to include as part of any 
report to the President any written statement submitted by a 
victim. Sec. 2(b)(2). To claim that the bill does not have the 
effect of making the President aware of ``certain'' views is 
disingenuous. Obviously the bill will have the effect of making 
the President aware of the views of victims and may make him 
aware as well of the views of all the people or institutions 
listed in the bill.

     iii. support for inclusion of victims in the clemency process

    We have expressed concern from the outset that the views of 
victims should be considered in the clemency review process. By 
letter, dated September 21, 1999, to Attorney General Janet 
Reno, Senator Leahy asked to be advised on this issue and 
inquired whether there were procedures and policies in place to 
ensure that rights of crime victims are respected in the 
clemency process.
    The Department of Justice responded, by letter, dated 
September 29, 1999, from Acting Assistant Attorney General Jon 
P. Jennings, and advised Senator Leahy that ``[t]he impact of a 
crime on a victim(s) is important not only throughout trial and 
sentencing, but also in considering a petition for executive 
clemency.'' The letter confirmed that ``[i]n connection with 
the evaluation of clemency petitions that appear to have some 
merit or that raise complex factual or legal issues, the Pardon 
Attorney routinely requests information, comments, and 
recommendations from United States Attorneys, including, where 
appropriate, information on the victim impact of a petitioner's 
crime.'' The letter also pointed out that the United States 
Attorneys Manual provides that United States Attorneys ``can 
contribute significantly to the clemency process'' by relaying, 
among other things, ``information bout the victim impact of the 
petitioner's crime.'' See U.S.A.M. Sec. 1-2.111.
    At the hearing of the Senate Committee on the Judiciary on 
this issue on October 20, 1999, Senator Leahy again reiterated 
that victims should be consulted about clemency petitions. He 
also observed that even if the Department's regulations were 
perfected to require such consultation, the President would 
always be free to grant clemency outside of the regular 
process--as President Ford did in pardoning Richard Nixon and 
as President Bush did in pardoning those convicted of Iran-
Contra offenses. Tr. at 27-28.

                 iv. the office of the pardon attorney

    As noted above, at the request of the Committee, the Pardon 
Attorney, Roger Adams, conducted a briefing on September 13, 
1999, to explain the policies and procedures of the office of 
the Pardon Attorney. He also testified at the October 20, 1999, 
hearing. The Pardon Attorney explained that the clemency review 
process begins when a petition arrives at OPA. Petitions for 
executive clemency are usually signed by the defendant, but may 
also be signed by an attorney. Petitions are not accepted if 
they are signed by third parties. Once a petition is accepted, 
it is assigned to one of the attorneys within OPA for 
investigation.
    In the first stage of investigation, the line attorney will 
obtain and review the Judgment of Conviction, the Presentence 
Report prepared in conjunction with the petitioner's 
sentencing, and a prison report. Legal databases are also 
reviewed for any reported opinions relating to the petitioner's 
conviction. According to the Pardon Attorney, ``[i]n the large 
majority of cases'' the information available in these 
documents is usually enough and a short report is prepared, 
relayed to the Office of the Deputy Attorney General, reviewed 
by that Office and then, if approved, signed by the Deputy 
Attorney General and sent to the White House Counsel's Office 
for review by the President Tr. at 19.
    In ``a minority of cases,'' the Pardon Attorney will 
conduct more extensive investigation. For instance, if the 
reviewing attorney has questions, the case is a difficult one, 
the case is likely to attract attention, or the information 
reviewed suggests that a petition may have merit, the attorney 
will seek additional information from the relevant United 
States Attorney's Office (``USAO'') Tr. at 19-20. If a United 
States Attorney's Office is contacted, that Office is asked for 
a recommendation and a recommendation is sought from the 
sentencing judge as well. Tr. at 20. The USAO is provided with 
a copy of the United States Attorneys Manual section that 
details the role of the United States Attorney in clemency 
matters. Tr. at 19-20. As this further investigation 
progresses, OPA retains any correspondence sent by the 
petitioner or third parties relating to the application. If a 
representative of the prisoner, such as his attorney or family 
member, is willing to travel to Washington, a meeting with OPA 
will be granted. Tr. at 20. Following this more extensive 
investigation, a report and recommendation is drafted. The 
report is then sent to the DAG's Office and, when approved, 
forwarded to the President by way of the White House Counsel's 
Office.
    The report generated by the Pardon Attorney's Office 
contains a recommendation with regard to the petition for 
clemency. This recommendation is frequently, but not always, a 
``yes'' or ``no'' on the question of granting clemency. In 
formulating his recommendation, the Pardon Attorney typically 
considers a variety of factors, including any disparity in 
sentencing and any opinions of judges and United States 
Attorneys.
    The process of reviewing petitions for executive clemency 
is extremely confidential. The Office of the Pardon Attorney 
and the Department of Justice do not make public their reports 
to the President, the nature of their recommendations or 
documents submitted in connection with the petition. The 
information and documents are not subject to disclosure 
pursuant to FOIA requests and are not even disclosed to the 
petitioner. Attorney General regulations do permit 
disclosure``when in the judgment of the Attorney General their 
disclosure is required by law or the ends of justice.'' 28 C.F.R. 
Sec. 1.5.
    The Deputy Attorney General testified before the Committee 
that in his view the Department does ``a pretty good job in 
consulting with victims'' but that it ``can do a better job.'' 
Tr. at 47. He agreed that the Department ``ought to think about 
ways in which we can put mechanisms in place so that the 
Justice Department * * * makes contact with victims and makes 
that perhaps a part of our recommendation.'' Tr. at 47. The 
Deputy Attorney General further explained that any such 
mechanisms should be imposed upon the Justice Department as 
opposed to the Office of the Pardon Attorney because the Pardon 
Attorney has ``a rather small staff.'' Tr. at 47.

                         v. current regulations

    Currently existing regulations and guidelines bear on the 
executive clemency review process. Regulations pertaining to 
the Department of Justice are set out in 28 C.F.R. 
Sec. Sec. 1.1-1.10. These govern, inter alia, procedures to be 
followed by persons filing petitions and by the Attorney 
General in the review of petitions. Regulation Sec. 1.6(a) 
requires the Attorney General to ``cause such investigation to 
be made of the matter as he/she may deem necessary and 
appropriate, using the services of or obtaining reports from, 
appropriate officials and agencies of the Government * * *''. 
Section 1.6(b) requires the Attorney General following the 
investigation to ``report in writing his or her recommendation 
to the President, stating whether in his or her judgment the 
President should grant or deny the petition.'' The regulations 
further specify circumstances under which a petitioner should 
be advised of action taken on his petition by the President.
    Section 1.10 explicitly limits the regulations as 
``advisory only and for the internal guidance of Department of 
Justice personnel'' and clearly states that they do not 
``restrict the authority granted to the President under Article 
II, Section 2 of the Constitution.''
    The ``exercise of the powers and performance of the 
functions vested in the Attorney General'' by the above-
described regulations has been generally delegated to the 
Pardon Attorney. See 28 C.F.R. Sec. Sec. 0.35-.36.
    The United States Attorneys Manual includes guidelines 
about when and how United States Attorneys Offices can 
contribute to the clemency review process. For instance, 
U.S.A.M. Sec. 1-2.111 states:

        The United States Attorney can contribute significantly 
        to the clemency process by providing factual 
        information and perspectives about the offense of 
        conviction that may not be reflected in the presentence 
        or background reports or other sources, e.g., the 
        extent of the petitioner's wrongdoing and the attendant 
        circumstances, the amount of money involved or losses 
        sustained, the petitioner's involvement in other 
        criminal activity, the petitioner's reputation in the 
        community and, when appropriate, the victim impact of 
        the petitioner's crime. On occasion, the Pardon 
        Attorney may request information from prosecution 
        records that may not be readily available from other 
        sources.

(Emphasis added.)

    The Manual's guidelines indicate the importance given law 
enforcement views on clemency petitions, stating that ``the 
United States Attorney's perspective lends valuable insights to 
the clemency process'' and that ``[t]he views of the United 
States Attorney are given considerable weight in determining 
what recommendations the Department should make to the 
President.'' U.S.A.M. Sec. 1-2.111. In addition, the guidelines 
indicate that in pardon cases involving prominent individuals 
or notorious crimes ``the likely effect of a pardon on law 
enforcement interests or upon the general public should be 
taken into account.'' U.S.A.M. Sec. 1-2.112(B). In addition, 
the guidelines state that ``victim impact may also be a 
relevant consideration,'' id., and whether a victim ``has made 
restitution to its victims'' is an ``important consideration.'' 
U.S.A.M. Sec. 1-2.112(C).
    The Department of Justice is in the process of drafting 
amended regulations, for approval by the President, that would 
specifically require input from victims in the clemency review 
process. These efforts should be encouraged.

                      vi. requirements of s. 2042

    The bill would impose statutory requirements on the Pardon 
Attorney with respect to investigations, notifications and 
reports to the President. With respect to investigations, the 
bill would require the Pardon Attorney to determine in each 
case: (1) the views of victims of the offenses for which 
clemency is sought on the potential grant of clemency; (2) the 
views of a variety of law enforcement officials, and 
prosecutors, probation officers, judges and prison officials, 
on the propriety of clemency and on whether the petitioner has 
expressed remorse, accepted responsibility and is a danger to 
any person or society; (3) the views of relevant federal, state 
or local law enforcement officials on whether the petitioner 
may have information relevant to an ongoing investigation or 
prosecution; and (4) the views of federal, state and local law 
enforcement on the potential effect that a grant of clemency 
could have ``on the threat of terrorism or other ongoing or 
future criminal activity.'' Sec. 2(c) (1)-(4).
    With respect to the preparation of the report and 
recommendation for the President, S. 2042 would require the 
Pardon Attorney to ``make available'' to the President a 
written report, which (1) includes a ``description of the 
efforts'' made by the Pardon Attorney to satisfy the 
investigative steps detailed above and to make the required 
notifications; and (2) attaches any written statements 
submitted by victims. Sec. 2(b)(1)-(2).
    With respect to notifications, the bill would require the 
Pardon Attorney to notify relevant victims of (1) the 
``undertaking by the Pardon Attorney of any investigation of a 
potential grant of executive clemency in a particular matter or 
case;'' (2) the ``making available'' of the Pardon Attorney's 
report to the President; and (3) the decision of the President 
on the petition. Sec. 2(d) (emphasis added).
    S. 2042 contains a provision that purports to exclude from 
the bill's reach ``any petition or other request for executive 
clemency that, in the judgment of the Pardon Attorney, lacks 
sufficientmerit to justify investigation, such as the 
contacting of a United States Attorney. ``Sec. 2(f).
    Finally, S. 2402 directs the Attorney General to promulgate 
regulations governing the required procedures within 90 days. 
Sec. 2(g).

                   vii. the constitutional questions

    The Department of Justice has reviewed S. 2042 as it was 
introduced and concluded that it is unconstitutional. The 
Department's views in this regard were relayed in a letter 
dated February 17, 2000 to Chairman Hatch by Assistant Attorney 
General Robert Raben.
    The principal of constitutional flaw of the bill, according 
to the Department, is that it would impermissibly infringe on 
the exclusive pardon power of the President by directly and 
indirectly influencing the information to be considered by him 
in the review process. Tracing the history of the pardon power, 
the Department notes that ``the Framers debated, and rejected, 
possible limitations on the President's authority to grant 
pardons. A proposal to restrict the President's pardon power by 
requiring consent of the Senate to pardon decisions was soundly 
defeated.'' Raben letter at p. 3 (citing 2 Max Farrand, The 
Records of the Federal Convention of 1787 419 (rev. Ed. 1966)). 
The Justice Department concludes that ``by mandating that the 
Attorney General make a report available to the President 
whenever he seeks her advice regarding a clemency petition that 
is not, in the Attorney General's opinion, patently frivolous, 
the bill is fundamentally inconsistent with the Framers' 
decision to exclude Congress from the pardon process. 
Similarly, by requiring victim notification of various 
intermediate steps in the clemency review process, the bill 
seeks to influence the Presidents consideration of clemency.'' 
Raben letter at 3.
    The Department further argues that ``[t]he fact that the 
bill does not require the Attorney General to submit any of the 
statutorily required information to the President, and instead 
requires only that she make such information available to him, 
does not eliminate the constitutional infirmity.'' Raben letter 
at 4. The Justice Department argues that the bill, in violation 
of the Opinions Clause, U.S. Const. art. 2 Sec. 2, ``may 
unconstitutionally condition the President's power to obtain 
opinions from his principal officers by requiring that the 
Attorney General undertake a detailed investigation to gather 
and make available to the President specific information each 
time he seeks her advice'' in a clemency matter. Raben letter 
at 6.
    The majority takes issue with Department's legal analysis 
and factual assumptions about the effect of S. 2042. The 
Committee Report relies on the opinions of Professor Akhil Reed 
Amar and Paul G. Cassell in support of its position that the 
bill is not constitutionally flawed.
    Professor Cassell has asserted in his letter of February 
22, 2000, that the bill is constitutional, essentially because 
it ``only applies when the President chooses to delegate to the 
Pardon Attorney the responsibility for initially investigating 
a clemency request,'' Cassell letter at 5, and ``does not 
regulate or frustrate the President's deliberation over 
pardons.'' Cassell letter at 6.
    Professor Amar, who, like the Justice Department, had 
apparently reviewed S. 2042 prior to the committee technical 
amendment, states in his letter of February 23, 2000 that the 
``Raben letter makes some good points; but overstates its case. 
* * * I think the bill can rather easily be modified to avoid 
constitutional difficulties. I conceded that even with my 
proposed modifications, it is possible--though unlikely, I 
think--that a Supreme Court majority might somehow conclude 
that the modified version should be invalidated.'' Amar letter 
at 2. Amar believes that any such conclusion, however, would be 
erroneous.
    Professor Amar concludes that the first potential 
constitutional problem--that it ``might be seen to infringe the 
President's pardon power''--could be cured if S. 2042 were to 
regulate the Pardon Attorney directly, instead of the Attorney 
General and include language clarifying that the bill would not 
``limit the ability of the President to seek advice directly 
from the Attorney General, or any informal advisor, regarding 
any pardon matter.'' Amar letter at 3 (internal quotation 
omitted.) Professor Amar believes that with theses changes, 
which were made by technical amendment, S. 2042 would be more 
likely to be upheld as constitutional, although he concedes; 
``Granted, this statue might at times discourage the President 
from involving the Pardon Attorney. And this discouragement 
might perhaps be unwise as a matter of policy.'' Amar letter at 
3.
    Professor Amar also raises a second potential 
constitutional infirmity--the potential violation of the 
Opinions Clause and the President's right to get information 
from his Cabinet officers. According to Professor Amar, the 
President's unfettered freedom ``to brainstorm with a trusted 
cabinet member in a confidential setting is a valuable part of 
the American Presidency, and should not lightly be altered.'' 
Amar letter at 5. Furthermore, the President should be free 
``to seek advice about pardons from any informal advisor of his 
choice--his spouse, his pollster, his chief of staff. his best 
friend, his Cabinet Secretary, his favorite Senator, etc.'' 
Amar letter at 3.
    Nevertheless, Professor Amar opines that the Constitution 
would allow Congress to regulate what the Pardon Attorney is 
required to tell the President but not what the Attorney 
General must tell the President, drawing a fine constitutional 
distinction between regulating the Attorney General and 
regulating the Pardon Attorney. Amar letter at 5. He thus 
concludes that his proposed modifications would cure this 
potential constitutional infirmity.
    Professor Amar raises yet a third concern. He states: 
``Were the bill to pass without significant support from 
members of both parties, the result would in my judgment be 
constitutionally unfortunate. This is an important bill that 
seeks to modify the structure of executive department and to 
adjust the current mode by which the President often exercises 
an important constitutional power.'' Amar letter at 5.
    Finally, Armar urges the majority to invite further 
comments from the Justice Department if his suggested 
modifications are adopted and notes that ``giving the 
Department a chance to review the revised bill would give me 
more confidence that may proposed revisions would indeed do the 
trick.'' Amar letter at 5. This has not been done.
    Accordingly, the debate over the potential constitutional 
and policy pitfalls of this bill is ongoing, underscoring the 
fact that it remains a work in progress.

    viii. further considerations in light of the preston king pardon

    On February 21, 2000, Preston King was granted a timely 
pardon by President Clinton, which allowed him to return to the 
United States for the funeral of his brother, civil rights 
activist Clennon W. King Jr.
    Preston King, a professor at the University of Lancaster in 
Britain, was prosecuted in 1961 for the kind of civil 
disobedience that our country now views as the crux of the 
civil rights movement. Almost four decades ago, Mr. King 
refused to report for an Army physical until an all-white draft 
board in Albany, Georgia addressed him as ``mister,'' as they 
did white draftees. The draft board, which had first addressed 
him as ``Mr. Preston King'' had begun to address him as 
``Preston'' upon learning he was black. For his refusal to 
submit to this type of state-sponsored discrimination, Mr. King 
was convicted of draft evasion and sentenced to 18 months in 
prison. He fled the United States 39 years ago before serving 
his sentence.
    The American public has accepted the timely pardoning of 
Preston King as a just and worthy exercise of the President's 
exclusive right to grant clemency. Indeed, even the judge who 
presided over Mr. King's case in 1961 called for this pardon. 
In statements to the press, the White House has said that 
President Clinton took into account all of the circumstances 
surrounding this matter and came to the conclusion that 
clemency was warranted.
    President Clinton was able to exercise his discretion in an 
unfettered manner in the King case. He apparently acted 
speedily to ensure that Mr. King could attend the funeral in 
the United States of his brother without fear of arrest. As we 
continue to refine S. 2042 and consider its merits, we should 
all remember that some requests for pardons are plainly 
meritorious and deserve the President's quick attention, 
without unforeseen and unintentional impediment from this bill. 
We should consider whether the statutory obligations to be 
imposed by S. 2042 could inadvertently delay the ability of the 
President to act independently and quickly in those special 
cases when his quick attention is warranted.

                             ix. conclusion

    Although we disagreed with the President's decision on 
offering clemency to 16 FALN members, we recognize that the 
power to grant pardons is constitutionally vested exclusively 
in the unfettered discretion of the President. That being said, 
we support the rights of all victims to be included in all 
phases of the criminal process, including in clemency reviews, 
and encourage the Department of Justice to continue its efforts 
to amend its regulations to ensure greater participation of 
victims in the clemency review process.
    Rather than approach this matter as an improvement to the 
process used by Republican and Democratic President alike in 
order to better include the views of crime victims, the 
majority insists on packaging this matter in starkly partisan 
terms. That is both unfortunate and unnecessary.
    The version of S. 2042 reported by the Committee raises a 
number of significant constitutional and practical problems. 
Addressing these problems in a constructive and bipartisan 
manner has been unnecessarily complicated by the partisan 
attacks on the President, his wife, the Attorney General and 
the Pardon Attorney stemming from the FALN clemencies.
                                   Patrick Leahy.
                                   Herb Kohl.
                                   Russ Feingold.

                      IX. Changes in Existing Law

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, the Committee finds no changes in 
existing law caused by passage of S. 2042.

                                  
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