More Clemency, A Lot More

Start your day with TPM.
Sign up for the Morning Memo newsletter

You may have seen here that President Obama has commuted the sentences of 46 federal inmates convicted of non-violent drug offenses. This is part of the administration’s general push for prison and criminal justice reform – particularly in relation to the drug war. It is welcome news on all those fronts. But there’s a slightly different issue I want to focus on.

Over the last several decades, the presidential pardon power – which includes a broad power to pardon offenses or simply commute sentences – has all but disappeared. The controversy over President Clinton’s end-of-term pardons played some role in that. But the trend was already well underway.

If you look at pardons and commutations over recent decades they are usually given to someone who committed a relatively minor crime many years ago, had already served their sentence and – either because of luck, unique merit or political connections – the president was wiping their record clean. That’s great. Or not great. Compared to what the pardon power is really for, it hardly matters.

The history of the pardon power goes deep into the history of monarchy – the monarch’s untrammeled power to dispense justice and particularly the power of mercy – mercy being a positive or merciful expression of this power but in the nature of things still driving home the sovereign’s total power. To put this another way, the awesome and overwhelming nature of the sovereign’s power is communicated as much by his or her expressions of mercy as it is by vengeance.

That said, we are not and should not be bound in the 21st century by the governing artifacts of the 11th century. The more modern rationale – and it’s a very valid one – is that the justice system is (largely by design) indiscriminate, brutal and largely blind. Procedural justice or laws that may make sense in general, routinely lead to great injustices in the particular. Everyone who is even remotely aware realizes that there are many sentences that simply are not fair. But that’s not the point. There are a set of rules. If you break the rules, you have a trial. And if the correct procedures are followed, you have a verdict and a sentence and that’s it. It’s just not right is not something you can bring before an appeals court, even it’s not right. The pardon power is there to provide some safety valve, some hope or mechanism for undoing punishments that were procedurally just but substantively unjust.

If you look back in history – even to some of the more brutal state criminal justice systems in the South in the early 20th century – you find with some frequency this or that person serving a sentence for a serious crime and then they got a pardon from the governor and didn’t end up serving their whole sentence.

But again, this idea of the pardon power has been almost totally squeezed out of its actual exercise. As I suggested above, the standard recipient of a pardon is some guy in Kentucky who was convicted of making moonshine 50 years ago and has been a stand up guy ever since. In fact, if you look at the rules governing applications for a pardon put together by the Office of the Pardon Attorney at the Department of Justice it specifically says you already have to have completed your sentence to even apply! The guidelines say, “In addition, the petitioner should have fully satisfied the penalty imposed, including all probation, parole, or supervised release before applying for clemency. Moreover, the waiting period begins upon release from confinement for your most recent conviction, whether or not this is the offense for which pardon is sought.” So not only do you have to serve your entire sentence, you’ve got wait another five years!

It’s true that you do have cases like Richard Nixon or Scooter Libby where politically connected people are prospectively removed from the grasp of the criminal justice system. Those may be right or wrong. But they’re clearly different. We all know there are lots of people in prison who shouldn’t be there or shouldn’t be there any longer, even if the laws that put them there are just laws that should remain on the books. This doesn’t get us into the drug laws, many of which are bad laws and wildly unjust in the first place.

Even at its best, the criminal justice system needs a countervailing force for mercy, one that can rectify at least the most egregious injustices and provide some hope in other cases even if in the nature of things the pardon power can’t undo every wrong. The very arbitrariness of executive mercy is one of its merits.

So, great that President Obama is doing this. But we should have a lot more pardons from him and from future presidents.

Latest Editors' Blog
Masthead Masthead
Founder & Editor-in-Chief:
Executive Editor:
Managing Editor:
Associate Editor:
Editor at Large:
General Counsel:
Publisher:
Head of Product:
Director of Technology:
Associate Publisher:
Front End Developer:
Senior Designer: