Editor's Note: (Mark Osler is the Robert & Marion Short Professor of Law at the University of St. Thomas in Minnesota. The opinions expressed in this commentary are his. View more opinion articles on CNN.)
(CNN) This week, we will once again be treated to the awkward spectacle of the President pardoning a turkey while confused-looking children look on. Of late, that ceremony has been accompanied by a raft of opinion pieces suggesting the President should consider granting clemency to some humans, as well. I've written a few of those myself.
After years of fruitlessly making that same argument, a more worthwhile observation might be this: The process used to choose which turkey might be pardoned is far more rational, efficient and effective than the one used to evaluate clemency for humans. In particular, the turkey-choosing process features four attributes sorely missing from the human one.
First, it occurs regularly. Turkeys are pardoned every year, not just in the waning days of an administration. Second, decisions are made by objective specialists with the current chairman of the National Turkey Federation, or NTF, responsible for managing a thorough selection process. Typically, the NTF head will familiarize dozens of birds with human contact and saturate them with loud music before making a final choice. Third, there are defined criteria. The finalists are selected based on their willingness to be handled, their health and their natural good looks. Fourth, attention is paid to making sure they thrive after their grant of clemency. After the ceremony, they are sent to Virginia Tech's "Gobbler's Rest" exhibit, where they are well cared for.
This contrasts sharply with the process of giving clemency to humans. For the past seven years I have worked with my students to prepare and file petitions on behalf of deserving clients, and have found that the procedure through which clemency is granted is irregular, run largely by biased generalists, devoid of consistent, meaningful criteria, and it does little to ensure success of individuals after their release.
Both pardons, which restore various rights taken away by the criminal conviction and are usually granted after a sentence is completed, and commutations, which shorten a sentence being served, go through the same bureaucratic maze. The first steps are within the Office of the Pardon Attorney, a division of the Department of Justice.
That, of course, is a part of the problem -- the DOJ, after all, is the entity that prosecutes these individuals in the first place. Within that office, staff members evaluate cases and provide a report to the pardon attorney, who decides on a recommendation after seeking out the opinion of the very US attorney's office that prosecuted the case.
That's when things get weird.
The Pardon Attorney's recommendation doesn't go to the President. Instead, it is routed to an aide to the deputy attorney general, who makes his or her own recommendation to the DAG. At this stage, the heart of the problem with the clemency process comes into view. The DAG, after all, is neither a specialist nor objective; in fact, he or she is the direct supervisor of and closely allied with the United States attorneys in the field, whose offices chose to pursue the challenged convictions and sentences in the first place. Moreover, the deputy attorney general has myriad duties, which effectively bars the development of lasting expertise in this small part of his or her portfolio.
From there, a staff member for the White House counsel evaluates the case and makes yet another recommendation to his or her boss. And, of course, that boss is both a generalist with a plethora of other duties and a conflict; this time, the tendency to protect the President from risk, something that is inherent in any use of the pardon power.
And then the President decides whether clemency should be granted. When he or she grants a commutation, the release may be immediate. As with other returning citizens, there are often inadequate resources available to ensure successful re-entry into the community, and whatever was learned in the clemency process may have no impact on the abrupt adjustment to free society.
What's missing is all the things that make the turkey process work. It's irregular, as inattention by any one of the numerous sequential evaluators stops the whole thing. And instead of objective specialists, we have decisions being made by the deputy attorney general, who is neither objective nor a specialist. The criteria are poorly articulated and currently issued by the stiflingly conflicted DOJ. And finally, there is little to no connection between the process and what comes after, as prison gives way to freedom.
Is there a better way? Sure. Just take the process out of the DOJ and put it in the hands of a board, as most states do, and then have that board make regular recommendations pursuant to consistent criteria while monitoring outcomes.
If we did that, the clemency process would finally be at least as functional as the one that informs a silly holiday tradition. There is a place for circuses, but we also need to regularly bake the bread of mercy that is promised in the Constitution.