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Jul 6, 2019

Pardon me

Co-produced with PRX Logo

President Donald Trump has brought presidential pardons into the news by granting clemency to several controversial people, including Joe Arpaio, a former sheriff in Arizona who targeted immigrants at traffic stops, and a serviceman who killed a suspected terrorist in the Iraqi desert. In this episode, we go beyond the headlines and tell the story of a pardons system that’s completely broken down. 

We start by meeting Charles “Duke” Tanner, a former boxer who is serving 30 years in federal prison after being convicted of drug trafficking. His arrest came during the war on drugs, which started in the 1980s, putting tens of thousands of black men in prison for decades. Tanner has applied for clemency twice, but his application is languishing among 13,000 others at the federal Office of the Pardon Attorney. 

Next, we take a look at why the mechanism for granting pardons has broken down. We meet a pardons advocate and a former staff member of the pardon attorney’s office and learn that the system stalled after then-President Barack Obama attempted to reduce mass incarcerations from the war on drugs. The pardon attorney’s office has been without leadership for more than two years, and the White House is ignoring its recommendations. 

We end by going back in history and finding parallels between Trump and former President Richard Nixon. The Mueller report documents instances in which pardons have been offered to members of Trump’s administration to keep them from cooperating with investigators. And Trump has said he can pardon himself. Similar scenarios came into play during the Watergate scandal, and in a never-before-broadcast interview, we hear President Gerald Ford explain his decision to pardon his predecessor.

Credits

Reported and produced by Reveal’s Michael I Schiller and by Anna Hamilton. Edited by Taki Telonidis. 

Data analysis by Melissa Lewis. Our production manager is Mwende Hinojosa. Our associate producer is Najib Aminy. Original score and sound design by Jim Briggs and Fernando Arruda, who had help from Katherine Rae Mondo.

Support for Reveal is provided by the Reva and David Logan Foundation, the Ford Foundation, the John D. and Catherine T. MacArthur Foundation, the John S. And James L. Knight Foundation, the Heising-Simons Foundation and the Ethics and Excellence in Journalism Foundation.

Transcript

Reveal transcripts are produced by a third-party transcription service and may contain errors. Please be aware that the official record for Reveal's radio stories is the audio.
Al Letson: From the Center for Investigative Reporting and PRX, this is Reveal. I'm Al Letson. It's summertime, and it's easy to get caught up in all the celebration around the 4th of July, fireworks, hotdogs, hamburgers, family and friends, and all of that is important. It definitely has its place, but I would argue, in this age, it's just as important to reflect on America, who we've been, who we are, and who we want to become. To that end, we're going to start the show with a look back at one of the documents that helped shape this country, the Constitution. Specifically, we're zooming in on one part of it that's gotten a lot of attention since Donald Trump took office, the part that talks about presidential pardons.

 

Al Letson: Article II, Section 2, Clause 1 says, “And he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” Those 21 words are what this show is all about. In today's English, granted clemency can mean one of two things. There's a pardon, which wipes someone's record clean after they've already left prison. They get their Civil Rights back, the right to vote. They can get business licenses and even own a firearm. Then there's a commutation of sentence, where the president lets you out of prison, but you still have a criminal record. President Trump has used the clemency power 12 times, and many of those cases have been controversial.

 

Speaker 2: The president has decided to pardon Sheriff Joe Arpaio of Arizona. The court held him in criminal contempt for violating a judge's order in a racial profiling case, and for continuing to target immigrants in terms of traffic stops.

 

Al Letson: Trump also pardoned former soldier, Michael Behenna, who was sentenced to 25 years for murdering an Iraqi after cutting off his clothes while interrogating him in the dessert.

 

Speaker 3: Military prosecutors say that Michael Behenna killed a suspected Al-Qaeda terrorist to avenge the deaths of two soldiers who died in a roadside bombing.

 

Al Letson: Trump has pardoned conservative commentators...

 

Speaker 4: He has plans to grant a full pardon to conservative commentator and author, Dinesh D'Souza.

 

Al Letson: ... and relied on his friends and celebrities to make his decisions.

 

Speaker 5: Tonight, granting the request made by reality star, Kim Kardashian, after her visit to the White House. Today, the president commuting the sentence of Alice Johnson, a 63-year-old [crosstalk]

 

Al Letson: Then there's the way Trump talks about pardons for the people around him. The word pardon appears in the Mueller Report 63 times. It describes how pardons were discussed for Trump's lawyer, Michael Cohen, and former campaign chair, Paul Manafort, when they were being questioned during the Special Counsel's investigation, and last June...

 

Speaker 6: From the president this morning-

 

Al Letson: ... Trump even tweeted-

 

Speaker 6: That he has the, quote, absolute right to pardon himself. He goes on to write, "But why would I?"

 

Al Letson: Bucking the system and using pardons as bargaining chips, this may feel like new territory, but it all sounds familiar to historian, Ken Hughes, and expert of presidential abuses of power at the University of Virginia's Miller Center.

 

Ken Hughes: Nixon was using the pardon power during Watergate and during the Watergate coverup as a tool of expanding his own political power.

 

Speaker 8: The burglars broke through a fire escape door that led to the committee's offices [crosstalk]

 

Speaker 9: Demographic officials today held a series of meetings to talk about tighter security at the [crosstalk]

 

Al Letson: Today, we're going to look at the pardon power and what we can learn from how the president is using it. For Ken Hughes, what's happening today stirs up memories of Richard Nixon and Watergate.

 

Ken Hughes: I always try to get past the Watergate break-in as quickly as possible because it's just the tip of the iceberg.

 

Al Letson: The tip of the iceberg that ultimately revealed how Nixon was involved in political conspiracy, sabotage, and obstruction of justice. A lot of the evidence came from the famous Nixon tapes.

 

Ken Hughes: Richard Nixon was cursed and blessed with kind of omnipresent taping in the Oval Office and various other White House locations.

 

Al Letson: Nixon's secret recordings were a goldmine for the House Judiciary Committee, which used some of them to build an obstruction of justice case against the president, but Ken was convinced he could find even more examples of abuses of power. So, when the National Archives released the tape in bulk, he did some digging.

 

Richard Nixon: [inaudible 00:04:33], huh?

 

Al Letson: This is Conversation 437-19. It's hard to hear, but it's a pardons bombshell. It's 1973, and Nixon is talking to White House chief of staff, H. R. Haldeman. The Watergate coverup is collapsing, and the president is trying to shield himself. In one part Nixon says, “There's nothing more important than to keep me in this effing office.”

 

Richard Nixon: There's nothing more important to your job than to keep me in this (beep) office.

 

Al Letson: The ace up Nixon's sleeve is the pardon power. Nixon tells Haldeman that if he can bury the trail connecting him to Watergate, it's pardons all around. He says, "I don't give-"

 

Richard Nixon: (bleep) what [inaudible]

 

Al Letson: "... what comes out on you. There's going to be a total pardon."

 

Richard Nixon: There's going to be a total pardon.

 

Ken Hughes: Now, this promise, which I found back into 1990s when I was going through the tapes on my own, had never come to light during the Watergate hearings, and it would've been all by itself an impeachable offense.

 

Al Letson: What is Nixon telling his staff and the people that may have committed illegal acts about pardons. What is he talking to them about?

 

Ken Hughes: The president was telling his top aids, who are also his co-conspirators in obstruction of justice, that they could commit perjury before the Senate Watergate Committee and count on a pardon from the president. He was basically abusing his pardon power, perverting his pardon power, as a get out of jail free card, a way to him himself above the law. With Trump, we're not going to need secret tapes to prove that he dangled the possibility of pardons over the heads of key witnesses against him.

 

Al Letson: That's because this time it's being talked about in the open. Here's Trump's lawyer, Rudy Giuliani being interviewed on CNN.

 

Speaker 11: You said, “I think this may get cleaned up, this probe, with a few pardons.”

 

Rudy Giuliani: These things get cleaned up. Ford did it, Reagan did it, Carter did it, Clinton did it, and Bush did it, in political investigations.

 

Speaker 11: So, you're saying after the probe is over, it may be cleaned up with any pardons?

 

Rudy Giuliani: If people were unfairly prosecuted.

 

Al Letson: In Richard Nixon's case, he never got to grant those pardons. A year after that conversation with his chief of staff, his presidency was crumbling.

 

Dan Kobil: There had been a vote by the Grand Jury to characterize Nixon as an unindicted co-conspirator in obstruction of justice.

 

Al Letson: Dan Kobil is a professor of law at Capital University in Ohio. Dan says, “In the final days of Nixon's presidency, White House aids are starting to think about the president's exit strategy.” This is when Nixon goes from being the person who grants pardons to someone who could benefit from one. The first mention of a pardon for Nixon comes on August 1st when Secretary of State, Al Haig, calls a meeting with the Vice President Gerald Ford.

 

Dan Kobil: Now, you have to remember, this is Ford as vice president, who has no role in pardons at all, and so he's got Haig giving him a handwritten document that says that a president can pardon prior to indictment in the federal system.

 

Al Letson: Haig spells out a few options, and he tells Ford that the president could pardon himself or be pardoned by his successor. Ford is surprised by this, and for good reason. It's the first time a US president has ever tested the waters of pardoning himself. But it never comes to that. Instead, on August 8th, 1974...

 

Richard Nixon: Good evening. This is the 37th time I have spoken to you from this office.

 

Al Letson: Facing possible impeachment, Richard Nixon resigns.

 

Richard Nixon: Therefore, I shall resign the presidency effective at noon tomorrow. Vice President Ford will be sworn in as president at that hour in this office.

 

Al Letson: Ford becomes president, and he's eager to put Nixon behind him.

 

Gerald R. Ford: My fellow Americans, our long national nightmare is over. [crosstalk]

 

Al Letson: He wants to get to work on problems his administration has inherited, unemployment, high inflation, and a domestic energy crisis, but the country is still obsessed with Watergate, and public wants to know what will happen to Nixon. Almost a month into his presidency, Ford does what he never imagined doing.

 

Gerald R. Ford: Serious allegations and accusations hang like a sword over our former president's head.

 

Al Letson: He pardons Nixon.

 

Gerald R. Ford: Through the pardon power conferred upon me by the Constitution, have granted, but by these present do grant a full, free, and absolute pardon onto Richard Nixon for all offenses against the United States, which he [crosstalk]

 

Al Letson: Years later, as a law professor writing about clemency, Dan saw this move as the most constitutionally significant pardon in US history, and he thought, wouldn't it be cool to ask Ford why in the end he decided to do it?

 

Gerald R. Ford: Hello?

 

Dan Kobil: Good afternoon, President Ford. This is Dan Kobil, professor at Capital Law School.

 

Al Letson: This is the first time this 2001 interview has ever been made public.

 

Gerald R. Ford: Yes. Nice talking to you, Dan.

 

Dan Kobil: Nice talking to you. Thank you for agreeing to this interview.

 

Al Letson: Ford says when he first came into office, he wasn't learning towards pardoning Nixon. Then came his first presidential press conference on August 28th, 1974.

 

Gerald R. Ford: Please sit down. Good afternoon. At the outset, I am a very [crosstalk]

 

Dan Kobil: He felt that the country has a number of significant economic problems, foreign policy problems.

 

Speaker 15: Do use your pardon authority if necessary.

 

Dan Kobil: And yet, the only questions that the press seemed to be interested in, in his view, pertained to what will happen to Richard Nixon.

 

Speaker 16: May I just follow up on [Helek's] question? Are you saying, sir, that the option of a pardon for former President Nixon is still an option that you will consider, depending on what the courts will do?

 

Gerald R. Ford: Of course. I make the final decision, and...

 

Gerald R. Ford: Well, I returned from that press conference where I was convinced that the only way to solve the problem was to think about granting a pardon-

 

Dan Kobil: And that's your first press conference where you had several pardon questions, I believe.

 

Gerald R. Ford: I had many pardon questions, and so I went back to the oval office, and as I recall, I asked Phil Buchan-

 

Al Letson: Phil Buchan was the chief White House lawyer.

 

Gerald R. Ford: ... to explore by authority in the first place, and to report back to me because I was very frank. I was considering the possibility, providing it would achieve what I thought was necessary, getting Mr. Nixon's problems off my desk.

 

Dan Kobil: So, that press conference really triggered your realistic consideration of it right off the bat, huh?

 

Gerald R. Ford: Absolutely. I was dismayed that the press was so preoccupied with that that I could visualize that every press conference that followed for the next X number of months would be the same, and I thought that was unfortunate from the country's point of view.

 

Al Letson: Ford was in a bind. The public wanted a resolution. Nixon was threatening to plead not guilty if he was prosecuted, promising to drag a messy trial through the courts.

 

Speaker 17: President Gerald R. Ford summoned newsmen to the White House suddenly this Sunday morning and announced that he was granting a full, free, and absolute pardon to former President Richard M. Nixon.

 

Dan Kobil: Now, you've been quoted as calling the pardon decision the most difficult of my life, ever.

 

Gerald R. Ford: I had a visceral feeling that the public animosity to Mr. Nixon was so great that there would be a lack of understanding, and the truth is that's the way it turned out. The public and many leaders, including dear friends, didn't understand it at the time.

 

Dan Kobil: His very dear friend who had been his press secretary for years resigned when he granted the pardon to Nixon. He asked him not to resign, but the day that he did that, he said, “I cannot work for you any longer,” and he resigned, and that was a huge personal loss to Ford. So, he got tremendous pushback, I think, for having granted the pardon.

 

Al Letson: Do you think he expected that? I mean, it's such a controversial decision, even looking back now. I mean, did Ford understand the consequences of that decision?

 

Dan Kobil: He knew that there were so many people who hated Richard Nixon who would never forgive him for pardoning him. He suggested that he wanted to grant the pardon quickly because it was like ripping a bandage off a wound. Better to do it quickly and get the pain out at once rather than do it slowly or drag it out.

 

Al Letson: The outcry wasn't because of the pardon alone.

 

Gerald R. Ford: I was criticized that I didn't get an admission by President Nixon that he was in error and so forth.

 

Al Letson: But Ford didn't look at it that way.

 

Dan Kobil: One of the very interesting personal facts about Ford is that he, for the rest of his life, kept in his wallet a page from an opinion of the Supreme Court in a case called Burdick v. United States.

 

Gerald R. Ford: I have the card in my pocket, which I carry with me. Let me try to find it here.

 

Dan Kobil: Is that the Burdick case?

 

Gerald R. Ford: The justices found that a pardon, quote, carries an imputation of guilt, comma, acceptance, comma, a confession of it, end quote. So, whether Nixon agreed to the pardon, the fact that he accepted it is the confession.

 

Dan Kobil: I ultimately came away from my interview with him convinced that he had acted out of principle. He did what he believed was best for the country, as opposed to best for himself, and in fact, the fact that critics who had said that he had done the wrong thing with Nixon, in retrospect, had changed their mind and said that Ford had done the right thing for the country.

 

Dan Kobil: Were you ever worried that maybe Nixon had done anything else that you didn't know about that you'd be pardoning him for?

 

Gerald R. Ford: That was plenty.

 

Dan Kobil: That's wonderful. So, that was enough, in other words.

 

Gerald R. Ford: Enough obstruction of justice. That was ample.

 

Al Letson: Dan's interview with President Ford is from 2001. Ford passed away five years later, at the age of 93. Fast forward to today, and accusations of obstruction of justice are swirling around the White House, and Dan says, “We once again have a president under investigation and talk of pardons.”

 

Dan Kobil: I think there are a number of similarities, and I think it's a valid comparison. One of the things that Nixon's representatives did after the Watergate break-ins is floated the possibility of a pardon. Now, today we hear about President Trump's personal attorney discussing pardons with Michael Cohen, with Paul Manafort, clearly with a goal of keeping them quiet.

 

Al Letson: Like we said before, President Trump has also said he could pardon himself, and he's made clemency decisions on the advice of celebrity friends, but in doing that he's ignoring thousands of people who officially filed for clemency and are waiting in line.

 

C. Duke Tanner: If I could talk to President Trump, I would first and foremost just tell him that I'm seeking this clemency based off of change, hope, and the possibility of making America great again.

 

Al Letson: When we come back, how the pardon system broke down. You're listening to Reveal.

 

Al Letson: From the Center for Investigative Reporting and PRX, this is Reveal. I'm Al Letson. Today, we're talking about clemency, the power the president has to set people free from federal prison or scrub their record clean after they've gotten out. So far President Trump has granted clemency to 12 people, and as we mentioned earlier, some of those cases have been controversial, like the US soldier who had been convicted of murdering a suspected terrorist in the Iraqi desert, Sheriff Joe Arpaio, who was found guilty of violating a judge's order in a racial profiling case, and the cattle ranchers that inspired the armed takeover of a wildlife refuge in Oregon. But there's another story, one that's not in the headlines at all. It's the story of the people who haven't been pardoned, but have gone through the official channels and applied for clemency, and are waiting for answers. One of those stories begins in the ring.

 

Speaker 19: And [crosstalk] not long ago as [crosstalk]

 

Al Letson: It's a summer night in 2003, and the Civic Center in Hammond, Indiana is full of people. They're here to watch the fights.

 

Speaker 19: ... the biggest test of his professional career. It's a battle of Indiana. George Honey Boy Blades takes on the undefeated Charles Duke Tanner. George Blades is 28 years old [crosstalk]

 

Al Letson: The battle's being broadcast on national TV, and that's a big deal for the up-and-coming boxers. Charles Duke Tanner and George Honey Boy Blades, both from Indiana, are meeting in the ring for the first time.

 

Speaker 19: Duke Tanner in the red trunks, he is unbeaten at 17 and O. Everywhere his entourage goes, and you can hear them chanting, “Who's got next?” His nickname slash slogan is, “I got next.” It started off in basketball [crosstalk]

 

Al Letson: The two men enter the ring and touch gloves. Honey Boy is smaller. He dances around as a frenetic pace.

 

Speaker 19: [crosstalk] his left hand [crosstalk]

 

Al Letson: Duke looks rooted, solid in his stance. He snaps out his left jab over and over. The punches come incredibly fast.

 

Speaker 19: Tanner snapping back Blades' head with that jab.

 

Al Letson: Then Duke explodes into motion, delivering body shots and combinations.

 

Speaker 19: Oh, and hook with the right hand [inaudible] the weight of Duke Tanner.

 

Al Letson: Duke catches him with a solid right, then chases Blades, raining down big punches. It looks like he's going for the knockout.

 

Speaker 19: Blades looks to be in trouble. Let's see if he can steady himself here.

 

Al Letson: But Blades doesn't go down, and by the ninth round, they both look gassed. They're holding on to each other, winded, dripping with sweat. The fight goes a full 10 rounds, and in the end...

 

Speaker 19: [crosstalk] your winner, Charles Duke “I Got Next” Tanner.

 

Al Letson: The decision goes to Duke. It's been 16 years since that fight, and Charles Duke Tanner has spent most of that time in federal prison.

 

Speaker 20: This call is from...

 

C. Duke Tanner: Charles Tanner.

 

Speaker 20: ... an inmate at a federal prison. This call is being recorded and is subject to monitoring. Hang up to decline the call, or to accept, dial five now.

 

Al Letson: Hey, Duke. How you doing?

 

C. Duke Tanner: Oh, man, another blessed day, man, another day closer to coming home.

 

Al Letson: A lot was going on around the time of that fight. Duke was 23 years old, a hometown hero from Gary, Indiana. He came up through the Police Athletic League's boxing program at the Golden Gloves. He went on to a 19 and O professional career before it all came crashing down.

 

C. Duke Tanner: It was the best moment of my life, but I was also so much with trying to get my family and my friends, and I got caught up in a moment when I got caught up into the crime life trying to save everybody.

 

Al Letson: Duke was involved in drug trafficking, and he got caught in a sting by the Gang Response Investigative Team, a state and federal taskforce. They accused Duke of running a criminal organization called The Renegades that sold crack, powder cocaine, and marijuana.

 

C. Duke Tanner: I was found guilty by a jury. They gave me a life sentence for it. I had life without parole. My only way home was... I hate to say it, but my only way home before would've been in a casket.

 

Al Letson: Duke got two life sentences without the possibility of parole. Duke's arrest back in 2004 and his two life sentences were part of America's War on Drugs...

 

Ronald Reagan: Drugs are menacing our society.

 

Al Letson: ... which was launched by Ronald Reagan in the 1980s.

 

Ronald Reagan: They're threatening our values and undercutting our institutions. They're killing our children.

 

Al Letson: Congress passed a bunch of tough on crime bills, like the Anti-Drug Abuse Act.

 

Ronald Reagan: Last year alone, over 10,000 drug criminals were convicted, and nearly 250 million dollars of their assets were seized by the DEA.

 

Al Letson: New sentences guidelines and mandatory minimums put first-time offenders away for decades, and there was nothing judges could do about it, even if they thought the sentence was too harsh. Then came the crime bill of 1994.

 

Speaker 22: When this bill is law, three strikes and you're out will be the law of the land. The penalty for killing a law enforcement officer will be death. [crosstalk]

 

Al Letson: Three strikes laws added a lot of nonviolent drug offenders to the growing federal prison population. So, let me sum it up. When Ronald Reagan took office, there were about 26,000 people in federal prison. Today, there are more than 180,000, African Americans are 20 times more likely to be sentenced to life without parole for a nonviolent crime than white convicts. Mark [Ostler] thinks that drug sentences laws from that era were unfair.

 

Mark Ostler: I was a federal prosecutor in Detroit from 1995 to 2000, which meant that I did a lot of crack cases, and after a while I stopped believing in the sentences that we were getting. There was the 100-to-one ratio back then between crack and powder cocaine that created incredibly long sentences for crack.

 

Al Letson: Mark stopped being a prosecutor and started fighting sentencing laws. He took it all the way to the Supreme Court.

 

Mark Ostler: Specifically, working to change that ratio of 100 to one in crack sentencing, and we won. In 2009, I won a case in the Supreme Court, United States versus Spears. The Supreme Court held that the sentencing judge categorically reject that ratio.

 

Al Letson: The next year, Congress changed the law so that sentences for crack cocaine were more in line with powder cocaine, but it didn't apply to people who had already been convicted.

 

Mark Ostler: That's how I got an interest in clemency, is looking for a way to make that new law apply to people who were rotting away in prison for a sentencing rule that was now gone.

 

Al Letson: It wasn't just the sentencing. It was the way the drug war led to mass incarceration and how it disproportionately effected African American men. In Duke Tanner's case, he got life, even though it was his first offense, and it was nonviolent. Is a guy like Charles Duke Tanner who the framers of the Constitution had in mind when they put together the pardon power in the first place? I mean, who do you think it was made for?

 

Mark Ostler: I think it was made for exceptional circumstances, either broadly or individually. It was kind of a social safety valve, in a way, that if something felt unfair, that it was a way of addressing that unfairness, whether it was one person or many.

 

Al Letson: The case against Duke and The Renegades was built with a cooperation of an informant who had been caught with drugs and a gun. The man wore a wire and set up a phony drug deal. He showed up with a duffle bag and cooler filled with fake cocaine. As soon as Duke took the containers and put them in the back of his girlfriend's Grand Am, his life changed forever. All that to say for Charles Duke Tanner, who's locked up in a federal prison in Pennsylvania, there's only one person in the world who has the power to get him out today. What would you say to the president if you could talk to him directly?

 

C. Duke Tanner: If I could talk to President Trump, I would just tell him I'm seeking this clemency based off of change, hope, and the possibility of making America great again. Me, I feel still young. Even though I'm 38 years old, I'm planning on fighting again, but me, just to be able to lace the gloves up again, I want a championship of life. You know what I mean? To share that back with other kids that coming up, and not make the mistake that I did and do the things that I've done that landed me in federal prison.

 

Al Letson: So, tell me, how many times have you applied for presidential clemency?

 

C. Duke Tanner: All right. I applied on October of 2014, and I did a new one just this October of 2018 that's pending right now.

 

Al Letson: There's a system that's been in place for 125 years to process clemency requests like Duke's. It's called the Pardon Attorney's office, and it's a part of the Department of Justice. They make recommendations to the White House. It's where Duke's application went first. Sam Morrison is a lawyer who worked in that office for 13 years.

 

Sam Morrison: It's a matter of trying to look at the whole person.

 

Al Letson: Sam used to review applications. Now he represents clients trying to get clemency.

 

Sam Morrison: The criteria in general would be things like, one, what is the nature of the offense, how serious was it, was there a victim, how long ago did it occur, what, if any, other criminal record does the applicant have, what is their reputation in the community to the extent that we could determine that. All those things go into the mix.

 

Al Letson: Duke seems to fit the criteria. He's a nonviolent first-time offender. He's completed over a thousand hours of educational programs and mentored other prisoners. Duke's got 81,000 signatures on a petition and a letter of support from the mayor of his hometown, Gary, Indiana. He's already served nearly 15 years. All these factors should work in his favors with the lawyers of the Department of Justice.

 

Sam Morrison: Because if you can convince them that you are not a risk to recidivate and that you have the right attitude, that you accept responsibility for what you did, and so on, and they give you a favorable recommendation, well, that's all the president typically is going to know about the case. So, you're very likely to get a pardon. Trump, of course, has been different. Trump has been a bit of a departure from the norm in the last 50, 60 years at least. None of the pardons or commutations that he's granted thus far have gone through the normal advisory process.

 

Al Letson: In other words, President Trump has never granted clemency based on advice from the Pardon Attorney's office. Instead, listening to celebrities and friends. If you go to the Department of Justice's website in count the clemency petitions that are waiting for answers, there are more than 13,000 of them waiting for a yes or no. Trump inherited most of that backlog from the Obama Administration, and in a few minutes we're going to explain how that happened. But for now, what you need to know is that this is a record-breaking number, a crazy number. When President Reagan took office, only about 500 were waiting for an answer on their clemency request. Now we're over 13,000. What does that mean for the people behind bars who are waiting?

 

C. Duke Tanner: One of my favorite quotes in here is that great people are created by great mistakes, and they are learned from, not from great success that'd [inaudible] upon. You know what I mean? I have repented, and I have done everything that my sentencing judge told me to do when he gave me a death sentence, I'd done it, and he'd remove them. What is it that we sitting in here for, just rotting away, wasting tax money when we can be out working and doing the things that we're supposed to be doing? I'm asking for the president to give me a clemency and commute my sentence and let me go home, you know what I mean, and be a productive citizen. That's the best way that I see fit for me.

 

Al Letson: In 2016, Duke's sentence was reduced to 30 years after changes were made to the federal sentencing guidelines, but Duke still has nearly 12 years of that sentence left to serve. For Duke and thousands of others locked up in federal prison, the chance of presidential clemency provides a ray of hope.

 

C. Duke Tanner: I have to [inaudible 00:32:15], but I stand for it. You know what I mean? Actually, right now I'm fasting right now anyway, so we're just praying. We're just praying and waiting. I got...

 

Al Letson: Just like that, his phone call is cut off. Praying and waiting. There's not much else he can do at this point, but there are other people who are trying to do something.

 

Amy Povah: I've got so many who have double life sentences, life sentences, for a first offense, and that should be the biggest red flag of all for a society, and clemency is really the only thing that can correct a huge problem on a big scale.

 

Al Letson: You're listening to Reveal. From the Center for Investigative Reporting and PRX, this is Reveal. I'm Al Letson. Today, we're talking about presidential clemency and the backlog of 13,000 people waiting for answers about their pardon petitions. One of them is Charles Duke Tanner, a former pro boxer who's serving a 30-year drug sentence in federal prison. A lot of people are rooting for Duke, including Amy Povah.

 

Amy Povah: We've sent in the clemency petition, as you know, and then the supplemental [crosstalk]

 

Al Letson: She's on the phone with Duke right now. He calls her often from prison. Amy helped Duke file is most recent application for clemency.

 

Amy Povah: So, you're anticipating a return, a big return of Duke Tanner, heavyweight boxer, back in the ring?

 

C. Duke Tanner: Yes, yes, for sure. Only thing is I'm going to be different weight class.

 

Amy Povah: Well, I better have a front row seat.

 

C. Duke Tanner: Oh, come on. You're going to be the one walking out with me when I come out, when we come out.

 

Amy Povah: Wow. Well, I can't wait.

 

Al Letson: We're inside Amy's dining room on an overcast day in Malibu, California. It's her makeshift office covered with stacks of paper, boxes full of letters from prisoners and their supporters. Amy runs a volunteer nonprofit called the Can-Do Clemency Foundation. She started it to help women serving life sentences for nonviolent drug crimes. Now she's helping men get clemency, too, nonviolent drug offenders like Duke. Over the years, she's helped a lot of people. She's worked with them to fill out petitions, collect letters of support. She's even held vigils in front of the White House.

 

Amy Povah: Josephine Ledesma, she is an absolute sweetheart.

 

Speaker 27: Yes, I do.

 

Amy Povah: She volunteers in the chapel. She's serving life without parole.

 

Al Letson: Amy's standing in front of the White House holding a big blowup photo of a woman named Josephine Ledesma. Amy calls her Josie. In the picture, Josie is wearing a maroon cap and gown from one of the many programs she completed in prison.

 

Amy Povah: She's already served over 20 years. She's been in since 1992. It's time to reunite her. Her children were small when she went into prison. Now they're all grown, and they have families.

 

Al Letson: Now, her kids have kids. Josie's got 10 grandchildren. Just like Duke, Josie was sentenced to life in prison for drug trafficking. It was her first offense, a nonviolent crime. Josie and Duke are two of the dozens of people Amy is working with to get clemency.

 

Amy Povah: I've got so many who have double life sentences, life sentences, for a first offense, and that should be the biggest red flag of all for a society, and clemency is really the only thing that can correct a huge problem on a big scale. People come out of prison every single day who have committed murder or arson or bank robbery or all kinds of different crimes, who get less time than a lot of people serving life for pot, and they've got more time than somebody who has priors and has raped and even killed somebody.

 

Al Letson: Most of the people she's helping are in prison because of the War on Drugs. When it started in the 1980s, about 30,000 people were in federal prisons. By President Obama's first year in office, that number had ballooned to more than 200,000. Obama saw this as a problem, so in 2014 he started something called the Clemency Project.

 

Barack Obama: It does not make sense for a nonviolent drug offender to be getting 20 years, 30 years, and in some cases life in prison.

 

Al Letson: The Clemency Project was designed to get nonviolent first-time drug offenders out of prison after they paid their debt to society.

 

Barack Obama: It is my strong belief that by exercising these presidential powers, I have the chance to show people what a second chance can look like.

 

Al Letson: Under the program, Obama did let a lot of people out of prison. He gave out 1,715 commutations of sentence, compared to George W. Bush who only gave out 11. But even with the Clemency Project, a lot of people who met the criteria were not released.

 

Amy Povah: Very early on, I started seeing perfect candidates getting denied, women who were first offenders who were minor participants, and right then I was just like, oh, this is not going well.

 

Sam Morrison: It was kind of hit or miss.

 

Al Letson: That's Sam Morrison, who we heard from earlier. He worked in the Pardon Attorney's office from 1997 to 2010.

 

Sam Morrison: He granted, it was 1,700 and something commutations. That's a big number, but not in comparison to the size of federal prison population, it's not a big number. He could easily have granted 20,000, not 1,700. It's a drop in the bucket compared to the number of people who on the face of it qualify.

 

Al Letson: One of the cases that was rejected was the boxer, Charles Duke Tanner.

 

C. Duke Tanner: I had been down 10 years. I had clear conduct. It was a nonviolent crime, my first arrest in my life, so my case manager was like, “Hey, this is you. Let's push with this.” So, we put it in, and September of '16 I got denied. They didn't give me a reason why. They just said, “Denied, and you have one year to follow up.” Now, my only co-defendant who went to trial with me got granted clemency, so it was a big pill to swallow for me on that one.

 

Al Letson: Why do you think you were denied if your co-defendant actually got it?

 

C. Duke Tanner: I don't know. Actually, my co-defendant, he wasn't a first-time offender, but he got it, and he's home now, thankfully. I mean, I watched a lot of people get it, and they didn't fit all of the [inaudible 00:39:29], but they got granted clemency somehow.

 

Al Letson: The chaos of Clemency Project 2014, who got help and who didn't, it was frustrating for a lot of people, including the Pardon Attorney at the time, Deborah Leff. She resigned in 2016. She wrote a letter saying her office was underfunded and understaffed, and that the White House lawyers weren't taking her recommendations. There hasn't been a Pardon Attorney since she left, just a string of acting Pardon Attorneys that inherited the backlog.

 

Sam Morrison: She simply wasn't given the resources to do what she ostensibly was supposed to be doing, so she got frustrated and said, "I'm not going to do this anymore."

 

Al Letson: Sam Morrison says those acting Pardon Attorneys are still making recommendations, but the White House isn't paying attention. If the White House is ignoring the recommendations of the Pardon Attorney's office, what's the point of having one? I mean, are we just burning taxpayer money? They wouldn't give us an interview. It's kind of a black box.

 

Sam Morrison: Yeah. That's intentional. They want it to be a black box, but you're right. If he's going to ignore them, then it's kind of a pointless exercise.

 

Al Letson: Right now, we're just a little north of 13,000 petitions that the Justice Department is sending into the White House. So, what does that mean? I mean, are these petitions just sitting in a drawer somewhere in the White House? Is anything going to happen to move through all of these petitions?

 

Sam Morrison: It doesn't mean that they're all yet at the White House. So, those cases are all going to be at one stage or another of the investigation process. Eventually, a recommendation will be written in each one, and it will make its way to the White House, but it doesn't mean they're all there yet. I can't tell us, and the Justice Department won't tell you where all those cases are at any particular time. So, we don't know how many of those are at the White House right now.

 

Al Letson: Amy Povah knows what it's like to ask for clemency and to wait while a petition works its way through the system. That's because as a young woman she was sentence to 24 years in federal prison for conspiracy to traffic narcotics.

 

Amy Povah: With conspiracy, even if you don't sell it, even if you don't import it, if you're associated with somebody who does, the conspiracy law, that's the trigger word.

 

Al Letson: In Amy's case, her ex-husband ran an ecstasy operation, manufacturing million of pills of the party drug. Now, he was caught in the early '90s and cooperated with law enforcement, and he only got four years in prison. Amy, on the other hand, was not directly involved with the drug business, but after her husband was arrested, she collected some of the drug money. She did not cooperate with the FBI and got sentenced to 24 years. Amy was sent to FCI Dublin, a federal prison in Northern California. She remembers a phone call with her mother not long after she got there.

 

Amy Povah: I wasn't expecting to break down, but I just completely broke down, and then my mom was like, “What? What's the matter? What's the matter?” because I was crying. I just remember almost screaming. I was like, “I'm in prison.”

 

Al Letson: After nine years behind bars, Amy gets called into her case manager's office. As she makes her way through the prison, she fears the worst.

 

Amy Povah: So, I just kept thinking, oh, my god, what could've gone wrong? Maybe Mom and Dad, maybe something's wrong with them.

 

Al Letson: Her case manager was frazzled.

 

Amy Povah: She said, “I need you to sit down. I've got to set you up on probation. I've got to do this. I've got to do that. I got to make an airplane reservation for you,” and is said, “Why?” She just looked at me, and she said, “You're going home,” those three words, and I was just like, “What?” Finally, she said, “You received clemency, and I have to have you out of here by 5:00.” So, she kept telling me to sit down, and I would sit down, and then I would pop out of my chair like a jack-in-the-box.

 

Al Letson: Amy's sentence was commuted by President Bill Clinton in 2000. She had put in an application a few years earlier. And after nearly a decade, Amy was suddenly free.

 

Amy Povah: So, it says, “To all to whom these presents shall come greeting.” It's so formal.

 

Al Letson: She's reading from actual signed clemency document. It's what you'd expect from such a grand declaration of freedom, faded cream-colored paper, signature in black ink, a gold seal. Presidential clemency petitions are something Amy's gotten very familiar with over the years, both in prison and after she was freed as an advocate for other people trying to get one. Amy thinks Duke Tanner has a strong case for clemency. They talk a lot, sometimes twice a day.

 

C. Duke Tanner: For Trump to give it to me, it'll shock the world [inaudible]

 

Amy Povah: Well, not to mention [crosstalk]

 

Al Letson: It's Thursday afternoon, and there is a lot going on at Amy's.

 

Amy Povah: You're not going to believe this. Oh, but now he's got... I shouldn't have taken your call because Josie's arriving here-

 

Al Letson: The phone call is interrupted. Amy's got a visitor. She heads to the back door and walks down a few steps.

 

Josie Ledesma: Oh, my goodness. Look at you.

 

Amy Povah: Look at you. Oh, my god. We made it.

 

Josie Ledesma: We made it. You're so right. Oh, my goodness.

 

Al Letson: It's Josie Ledesma, the woman Amy was trying to get out of prison at that White House vigil. The last time they saw each other, they were serving time together in federal prison. That was 19 years ago.

 

Josie Ledesma: Oh, gosh.

 

Amy Povah: Here, go ahead, sweetie.

 

Josie Ledesma: This is beautiful. Oh, my goodness.

 

Amy Povah: Wasn't it fun to be able to drive now?

 

Josie Ledesma: Yes, especially out here. I'm like, oh, my god. I didn't know this existed. It's gorgeous.

 

Amy Povah: Well, you're welcome any time.

 

Josie Ledesma: Thank you.

 

Al Letson: Josie was released by President Obama after 24 years behind bars.

 

Amy Povah: Oh, God.

 

Josie Ledesma: It's so nice to see you.

 

Amy Povah: What a journey.

 

Josie Ledesma: Yes, definitely. Definitely.

 

Al Letson: They walk out to Amy's front yard with its sweeping views of the Pacific. A manmade waterfall runs along the steep driveway. Amy's yard is filled with bright purple and pink flowers. On the flowers, there are hundreds of orange and black and white butterflies. As the women walk, the butterflies flutter off their flowers into the air.

 

Josie Ledesma: That is beautiful.

 

Amy Povah: Yeah, see?

 

Josie Ledesma: Oh, my goodness.

 

Amy Povah: Even when you're in prison and you see a butterfly, you can't help but fixate on it because it's just-

 

Josie Ledesma: True. It's very, very true. Oh, gosh. This is gorgeous. I love this.

 

Al Letson: The two women walk inside and sit at Amy's kitchen table. Posters with faces of prisoners lean against the wall. Amy and Josie are two of the lucky ones. Most people who apply don't get clemency.

 

Josie Ledesma: It's awesome to be home, to be out, to be able to drive and feel the air hit my face and be able to just see freedom, but one of my pains is that I still have people in there that I love, sisters, people that I grew up with that are still in there. I got a chance to come home. I think they deserve a chance to come home also.

 

Al Letson: A chance to come, that's what Amy and Josie want for nonviolent prisoners of the War on Drugs, people like Duke. His son Charles III was just two years old when Duke got locked up. Now he's close to graduating from high school.

 

Charles Tanner: Hello, President Trump. I would like to ask you to please release my dad from prison.

 

Al Letson: This is a video that Duke's son made and posted to you YouTube.

 

Charles Tanner: I know that he made a huge mistake, and he really looks back on his mistake and regrets it, and I feel like he would never do it again. My dad's been in my life ever since I was young, and we have a good relationship. He's been helping me every step of the way. He helps me and my friends. He taught me right from wrong. I would just please want you to release my father from prison. Thank you.

 

Al Letson: What has it been like being apart from him and not being able to be there as he grows up?

 

C. Duke Tanner: Oh, that's the worst thing that I lost, physically being there for him, to teach him how to tie his shoes, to teach him how to drive, and to see him in his [inaudible] that's teaching how to be a man, but I didn't let prison stop it. I used every tool that we have, as far as the phone, the email, letters, visits, to enrich his mind with... We have a beautiful really, but to be there with him and to get him ready to send off to college and become a real man, I need to be there in his presence to show him, even though I showed him so much from inside these walls.

 

Al Letson: Right now, there are two paths to what Duke and his son are asking for. Path one, you know the president or someone who does, and he writes out a clemency warrant, and you are free of your crime. Path two, you send in an application to the Pardon Attorney's office, a long and complicated process on a good day. Only for the past few years, that process has ground to a screeching halt. As a result, the constitutional power of the pardon is only being used for a small select few, while the many wait.

 

Al Letson: Our lead producer for this week's show is Michael I. Schiller. The Nixon/Ford segment was produced by Anna Hamilton. Taki Telonidis edited the show. Thanks to Melissa Lewis for help with the data, and to associate producer, Najib Aminy. Our production manager is Mwende Hinojosa. Original score and sound design is by the dynamic duo, J-Breezy and Fernando, my man, Arruda. They had help this week from Catherine Raymondo. Our CEO is Christa Scharfenberg. Matt Thompson is our editor-in-chief. Our executive producer is Kevin Sullivan. Our theme music is by Camerado-Lightning. Support for Reveal is provided by the Reva and David Logan Foundation, the John D. and Catherine T. MacArthur Foundation, the Jonathan Logan Family Foundation, the Ford Foundation, the Heising-Simons Foundation, and the Ethics and Excellence in Journalism Foundation. Reveal is a co-production of the Center for Investigative Reporting and PRX. I'm Al Letson, and remember, there is always more to the story.

 

Speaker 31: From PRX.