Political leaders should begin utilizing clemency more often in order to address systemic injustices in the criminal legal system. Clemency, the executive’s power to pardon or reduce the sentence of a person convicted of a crime, has a long history in American law. In the Framers’ day, it was seen as an important tool to correct abuses in the justice system, as well as a way for the executive to head off rebellion by exercising mercy. However, today, clemency has fallen into near-disuse. For example, while presidents at the beginning of the twentieth century would often grant between one and two hundred pardons per year in office, George W. Bush granted clemency only two hundred times during his entire eight years in office.
Many explanations have been offered for clemency’s decline in use, including its association with abuses of power and the political cost of appearing soft on crime. In recent decades, presidents have come under fire for perceived misuse of the pardon power. Gerald Ford’s pardon of Richard Nixon in the wake of Watergate may have cost him reelection. Bill Clinton granted 177 pardons on his last day in office, including Marc Rich, the ex-husband of a prominent Democratic fundraiser. These so-called “eleventh hour pardons” prompted an investigation by Congress. More recently, Donald Trump came under fire for his pardons of Lewis “Scooter” Libby and Sheriff Joe Arpaio. These heavily criticized uses of clemency have left a bad taste in the public’s mouth, and may have made presidents more hesitant to use clemency.
Another potential reason for the decline in the use of pardons is the danger of looking soft on crime. As crime rates rose in the twentieth century, politicians began emphasizing law and order as a priority. At the same time, the presidential use of clemency declined; before Reagan, presidents in the twentieth century granted between 21 and 41% of pardon applications. Reagan granted just 12%, and the presidents following him continued the trend of refusing clemency more often.
However, there is reason to think that the situation could change. The election of progressive prosecutors in cities across the United States running on platforms of criminal justice reform may signal the public’s desire to end overtly tough-on-crime platforms. Though the left and right approach mass incarceration from different angles, there is no denying that decarceration is now a bipartisan issue; even Trump touted his criminal justice reform bill in a Super Bowl advertisement. The dimensions of the United States’ incarceration problem are too massive to ignore; not only do we incarcerate more people than any other country in the world, the criminal legal system exacerbates racial inequality by incarcerating people of color at much higher rates than whites.
Clemency will certainly not solve mass incarceration, but right now it is a vastly under-utilized tool for chipping away at the injustices the criminal legal system creates and perpetuates. Presidents, and even state governors, who often also have clemency power, should begin exercising this power to curb the legal system’s excesses. Instead of making occasional celebrity pardons, executives vested with this power should think about systemic injustices, focusing on classes of people who have been treated unjustly rather than individuals who have gained notoriety. They should provide clear and transparent criteria for people applying for clemency. Finally, grants of clemency should be meted out through a fair process that ensures that the executive is not seen as doing favors for friends.
One model for how to do so is Obama’s 2014 Clemency Initiative, which focused on pardoning federal prisoners convicted of non-violent drug offenses whose sentences would have been much shorter had they been sentenced in 2014 due to changes in federal law. This initiative generated over 13,000 clemency petitions, and 1,696 people eventually got clemency. Bucking the recent presidential trend, Obama ended up granting clemency for 1,927 people during his eight years in office, vastly more than George W. Bush (200), Bill Clinton (459), or George H.W. Bush (77). One fair criticism of this initiative is that it focuses on people convicted of non-violent drug offenses, ignoring the reality that mass incarceration has largely been driven by increasingly punitive responses to violent crime. However, Obama’s initiative provides a blueprint for larger-scale clemency projects aimed at righting structural wrongs.
Similarly, Governor Jerry Brown of California has used his clemency power to address systemic injustices. Groups that he has recently looked to for clemency include non-citizen military veterans deported for crimes committed after serving, people imprisoned for life without the possibility of parole, and Southeast Asian immigrants who came to the United States as children and now face deportation for their crimes. Even his critics acknowledge that Brown’s uses of pardons are the result of his sincere views on criminal justice, rather than any kind of political cronyism. In the past eight years, Brown has granted clemency more often than any other governor in modern California history – 1,182 pardons and 152 commutations.
Executives with the ability to grant clemency should seize the current criminal justice reform moment in order to pardon people for past convictions that resulted in overly harsh sentences. Some groups they may look to in order to mitigate overly punitive criminal justice measures could be people serving lengthy sentences for crimes committed as juveniles, elderly incarcerated people, people facing dramatic collateral consequences from their convictions, and people serving sentences for life in prison without the possibility of parole. Governors could effectively nullify the death penalty by automatically commuting death sentences to life in prison.
Political leaders will need to sell these large-scale clemency efforts to their constituents, but there is reason to think that voters will be more receptive to such initiatives than they may have been in the past. Executives will have added legitimacy if they provide a clear path with well-defined parameters for those seeking clemency. Effective use of the clemency power could rehabilitate its reputation – rather than being seen as a way to enable abuses of power for one’s political allies, it could instead become a meaningful tool to mitigate the draconian penalties our legal system metes out to ordinary citizens.