COMMITTEE ON CODES OF CONDUCT
ADVISORY OPINION NO. 65

Judge's Recommendation for Pardon or Parole.

Advice has been requested on whether a judge should make a personal recommendation for Presidential commutation of sentence or pardon, or for parole, in response to a prisoner's request. The Committee views such personal recommendation as normally inadvisable.

The present opinion is limited to the propriety of an action that may be interpreted as a judge's endorsement of an application for pardon or parole. It does not relate to a judge's transmission (without recommendation) of objective information which the Justice Department may not have and which would assist it in making its determination, or to a judge's response to a Justice Department request for such information or for a recommendation (addressed, for example, by the sentencing judge).

In opposing transfer of the Parole Commission from the Justice Department to the judiciary, the Judicial Conference at its September 1979 meeting adopted the statement, inter alia, that "parole is a form of clemency inherently connected with the executive function of prosecution and incarceration." Further, the Conference cited the possible "problem with respect to Court review of Parole Commission policy, practices, or decisions." See Judicial Conference of the United States, Report of the Proceedings 74 (Sep. 1979).

Because recommendations sought as personal favors would be addressed to the Justice Department, and because that Department is a frequent litigant before federal judges, the potential exists that undue influence would be felt. Thus an appearance of impropriety could arise from a judge's personal recommendation that the Justice Department act favorably with respect to a prisoner within its custody.
 

August 25, 1980
Revised January 16, 1998