Recently President Obama made news when he granted pardons to 17 people, all of whom had committed nonviolent offenses, most years, if not decades, in the past. Few of these fortunate individuals had even served time in prison for their crimes. This exercise of presidential discretion almost doubles the number of pardons granted since Obama took office in 2009. Most reactions to the recent pardons have chastised him for not exercising this power more generously. And if he continues at this pace, he will come nowhere close to the numbers of pardons granted by his immediate predecessors.
The pardon power dates back to the English monarchy and was imported to the United States in the colonial era. Although occasionally exercised for political reasons, most of the time the executive pardon is accepted as a valid means of correcting injustices for the falsely or unfairly convicted, or to restore civil rights and thereby avoid unduly harsh outcomes.
Obama is not alone in his reluctance to grant pardons. Although sometimes called "the power that nobody wants," all chief executives — the 50 governors as well as the president — are empowered to grant pardons, yet few utilize their unfettered authority generously. This foot-dragging is particularly unfortunate when noncitizens face deportation.
One of the individuals pardoned by Obama is An Na Peng, a lawful permanent resident living in the United States for more than 20 years and the mother of two U.S.-citizen children. In 1996, Peng was convicted by a jury after she was caught in a scheme to help people cheat on the naturalization examination. Although sentenced only to probation, her conviction made her deportable. After unsuccessfully trying to fight her removal for almost 15 years, this Hawaiian resident now escapes this punitive fate thanks to the presidential pardon.
Peng cannot be deported thanks to a little-utilized provision in the Immi­gration and Nationality Act that honors the long-standing tradition of using executive pardons to avoid the severe immigration consequences of most convictions. Peng is one of the lucky few to benefit from this compassionate provision, but there are many other equally deserving noncitizens who face deportation because of long-ago convictions for low-level crimes, such as personal drug use, forgery or petit larceny, with no hope of relief. They are long-term lawful residents with families, jobs and ties to the United States who, despite a criminal conviction in a state court, have become productive and respectable members of their communities. In 1996, Congress repealed legislation allowing immigration judges to exercise discretion to prevent deportation of particularly deserving noncitizens like Peng.
Some do not know about this possibility or have the ability to access the pardon process. Some, like Peng, fought their deportation for years, probably exhausting their means. For those who do figure out how to submit an application, their pleas are often not granted due to the unwillingness of governors to exercise their powers. Governors traditionally have largely given a wide berth to their pardon power — perhaps out of fear of political fallout, perhaps because they do not have adequate processes in place, perhaps because it may be easier to just let the inevitable happen and avoid having to engage in a selection process.
One counterexample stands out as a model that should be revived and replicated. In 2010, then lame-duck New York state Governor David A. Paterson pardoned more than 30 noncitizens in less than three months, with the express purpose of enabling them to avoid deportation. His short-lived pardon panel took advantage of the power given to governors by Congress, and he boldly exercised his authority. Like Peng, the pardoned New Yorkers were mostly nonviolent, long-term lawful residents, with substantial community ties, who had turned their lives around since their long-ago convictions. Those pardoned included a 63-year-old grandmother, an award-winning costume designer and a City University of New York administrator.
At the time, public reactions to Pat­erson’s pardons were largely favorable, and no one took him to task for using his discretionary powers so compassionately. Nor was there any anti-immigrant pushback. Instead, he allowed New Yorkers to remain in their communities and to retain their ties and connections to their families, friends, employers and congregations. But this pardon panel was ephemeral; neither current Governor Andrew Cuomo nor other governors have replicated it or made a concerted effort to use their powers to help deserving noncitizens trapped in the Kafkaesque world of inflexible immigration laws to avoid deportation.
A wider exercise of the gubernatorial pardon power is sound public policy. Until Congress comes to its senses and restores humanity to the immigration system by restoring discretion to immigration judges to do the right thing in deserving cases, governors should use their power to save worthy residents of their states from exile while preserving family unity and both economic and community stability.
Stacy Caplow is a professor at Brooklyn Law School, where she teaches immigration and nationality law and co-directs the Safe Harbor Project Clinic.