Whatever the pros and cons of President Obama’s decision to commute the sentence of Chelsea Manning, we should have more pardons, many more, than fewer. As I wrote back in late 2008, the presidential pardon power has in recent decades shriveled almost to nothing. In recent years, most presidential pardons have been handed out to people who committed relatively minor offenses and had already served their sentences years in the past.
The current pardon process goes back to the Eisenhower administration. There’s a Pardon Office and a Pardon Attorney in the DOJ which has the responsibility for receiving pardon applications and making recommendations to the President. What’s quite striking is that under current guidelines (or at least what they were as of 2008), you are not even supposed to apply for a pardon unless you’ve served your sentence and been out of prison for at least five years. (Since 2008, President Obama has pardoned and commuted far more individuals than all recent predecessors combined.)
In other words, as currently constituted, the pardon power is supposed to be a purely symbolic power – simply expunging guilt for a crime someone has already served time for. That is not what it’s for. That’s not why it’s needed. Of course, the President still holds the full pardon power in his hands. He or she can do whatever they want. But they’re now supposed to follow this tightly attenuated process.
There are countless people in the criminal justice system who deserve mercy, for myriad reasons – extreme sentences, injustices that are beyond the reach of the appeals process, simple mercy, exceptional transformations during incarceration. They are as unique as the millions who serve in prisons. This is not an indictment of the criminal justice system in itself. One can believe in punishment and accountability and yet recognize that there must be a pressure valve, a source of mercy that goes beyond the narrow confines of the letter of the law. Without that possibility of mercy, acted on with some frequency, justice can’t be justice.
Late Update: Here’s a tweet from the White House visualizing the scale of Obama’s pardons versus other Presidents …
With today’s 209 commutations, @POTUS has commuted sentences of more people than the last 12 presidents combined. https://t.co/t6Cs7NDPh0 pic.twitter.com/qirajGC1eH
— The White House (@WhiteHouse) January 17, 2017
