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