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Four Turkeys, Zero People: The Case Of Barack Obama’s Missing Pardons

Last week in The New York Times, George Lardner notes that President Obama has yet to exercise his power to pardon or commute the sentence of a single human being:

LAST February, after long delays, the Justice Department sent President Obama hundreds of recommendations on requested pardons, each one carefully selected for a quick decision under standards for clemency that presidents have followed for decades.

Under these standards, no pardon can be recommended unless a petitioner has been out of prison and law-abiding for at least five years.

Most of the recommendations President Obama received called for a no, but some, according to people who recently left the administration, strongly favored a pardon. Nevertheless, Mr. Obama has yet to judge a single person worthy of his grace.

If by tomorrow he pardons no one but turkeys, President Obama will have the most sluggish record in this area of any American president except George W. Bush. He’ll have outdone George Washington, who granted a pardon after 669 days. And he will also have outlasted Bill Clinton, who took three days longer than Washington to grant his first pardons. If Mr. Obama waits until Christmas Eve, he will make even his immediate predecessor, who waited until Dec. 23, 2002, seem more generous.

Last month, President Obama turned down 605 requests for commutations — from prisoners who wanted their sentences shortened — and 71 for pardons.

It’s difficult to understand why the president has been so unwilling to grant any clemency. As someone who has taught constitutional law, he knows that the founders gave him, and him alone, the power “to grant reprieves and pardons for offenses against the United States except in cases of impeachment.” It is likely that he also knows that a disproportionate number of federal prisoners are black, that mandatory sentencing guidelines have left many of them with excessive sentences0 and that at least a few of them deserve clemency, whether they’ve asked for it or not.

Obama’s reluctance to exercise the Presidential pardon power isn’t unique to him, of course. Over the past several decades Presidents have been far more reluctant to issue pardons than their predecessors were, as this breakdown shows:

  • Franklin Roosevelt — 3,687 pardons over 13 years (average 284 pardons/year)
  • Harry Truman — 2,044 pardons over 7 years (average 292 pardons/year)
  • Dwight Eisenhower — 1,157 pardons over 8 years (average 145 pardons/year)
  • John F. Kennedy — 575 pardons over 2 1/2 years ( average 230 pardons/year)
  • Lyndon Johnson — 1,187 pardons over 6 years (average 198 pardons/year)
  • Richard Nixon — 926 pardons over 6 1/2 years (average 143 pardons/year)
  • Gerald Ford — 409 pardons over 2 years (average 205 pardons/year)
  • Jimmy Carter — 566 pardons over 4 year (average 142 pardons/year)
  • Ronald Reagan — 406 pardons over 8 years (average 51 pardons/year)
  • George H.W. Bush — 77 people over 4 years (average 19 pardons/year)
  • Bill Clinton — 459 pardons over 8 years (average 58 pardons/year)
  • George W. Bush — 200 pardons over 8 years (average 25 pardons/year)

For a good part of the modern era, Presidential pardons and grants of clemency, while uncommon, were at least numerous enough to cover several hundred requests per year. Then, with the Reagan Administration, the exercise of the pardon power suddenly became rarer and in some cases, the first Bush Administration comes to mind, so rare as to look ungenerous to say the least. There are, I think, several reasons for this.

For one, the exercise of the pardon power has become far more political than it was in the past. Today, pardon and clemency lists are scrutinized for political favoritism and the selections often lead to political headaches for incoming and outgoing administrations. Bill Clinton’s 2001 pardon of financier Mark Rich led to allegations that political favoritism led to Rich’s pardon request receiving preferential treatment, for example, George H.W. Bush was criticized for his December 1992 pardon of Casper Weinberger for his role in the Iran-Contra affair, Ronald Reagan was criticized for pardoning New York Yankees owner  George Steinbrenner, and the waning days of the George W. Bush Administration saw the President under scrutiny over what he might decide to do about former Vice-Presidential aide Scooter Libby. To the extent that pardons and grants of clemency have become potential political landmines, it’s meant that Presidents have typically delayed those decisions till the end of their term, and that they are far more reluctant to use their Constitutional power than they otherwise might be.

Another factor that likely also serves to limit the number of pardons and commutations is the fact that a large number of the people in prison on Federal crimes today are there on charges related to illegal drugs. People in that position don’t necessarily make sympathetic cases, or at least their cases are such that it’s harder for the White House to spin them in a positive way. No President wants to be hit with the “soft of crime” charge, and a list of pardoned drug offenders would be an easy target for the opposition.

It’s possible that Presidents would exercise their pardon power more frequently if there were some degree of political insulation in the decisions. In many states, Governors work together with an independent pardon board to come up with appropriate cases for review and decision. If there were such a body on the Federal level, then perhaps Presidents would feel more free in exercising the one great power that they Constitution gives them, the power of mercy.

H/T: The Liberty Papers

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. ponce says:

    “After 2 1/2 years in office”
     
    It may seem that long, but it’s been less than two years…

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  2. Yea, you got me there….

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  3. James Joyner says:

    Honestly, I’m not sure why we still have pardons.  There are multiple layers of appeal.   The only cases that make sense are those where the DNA evidence casts real doubt on guilt, situations where mores have changed radically and something once criminal is now laudable or commonplace, or obvious politically motivated cases.
     

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  4. tom p says:

    Honestly, I’m not sure why we still have pardons. 

    JJ, I can not beleive you said that. We live in a country where the Chief Justice of the Highest court in the land, once said:
    “Proof of innocence is no reason for a new trial” (or something like that) (W Rehnquist) (and no, I do not recall exactly which case it was… It should not take long to google it)
    JJ, you really do live in a different world than the rest of us.
    PS: and for the record, I understood where WR was coming from, but his statement makes the pardon all the more necessary.
     
     
     
     
     
     

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  5. First, it is a power whose legacy is an appeal to the throne in a monarchy.  As such, it is really an anachronism that in many ways doesn’t make much sense in a democratic setting.
    Second, do we really know if the following is true? ” the exercise of the pardon power has become far more political than it was in the past”–I would agree that the moves get more scrutiny than in the past (as does everything in the current era), but I have to wonder if the process was any less political in the past.  Indeed, sans intense media scrutiny, it wouldn’t surprise me if it wasn’t more political in the past as the president could have far more easily used the pardon power to hand out political favors than he can now.

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  6. I’ll put it another way:  it is unclear to me that the pardon power is, or ever was, primarily (if at all) a power used by presidents as a serious check on misconduct within the federal judiciary.  Rather, it is a perk of office used for political reasons.

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  7. From the original article:

    …As someone who has taught constitutional law, he knows that the founders gave him, and him alone, the power “to grant reprieves and pardons for offenses against the United States except in cases of impeachment.”

    Obama ought to know a lot of things about the Constitution based on his professional and academic background, but he does not act consistent with that knowledge. I think DM glossed over the fact that in the modern era, a significantly disproportionate number of a President’s pardons and commutations are issued in the President’s lame-duck period, precisely because the pardons are so political.
    This politicization is an inevitable result of “law and order” and civil liberties being made into political issues. The point of a pardon — and this is why we should keep them — is to account for justice in an individual case despite the defendant’s guilt. The convict bears a heavy laboring oar to demonstrate why, despite having been convicted and despite having had that conviction upheld on appeal, the sentence should be reduced or eliminated. It can be done, in an appropriate case. Patty Hearst was a pretty good example of that; there is no doubt she did the crime and did so willingly, but the psychological conditioning that she was subject to played a factor and we can understand that better now than the jury which convicted her and the judge who sentenced her could have.
    Remember, once upon a time DNA evidence was looked upon as some kind of magic, it was suspect and unreliable. (Thus, the O.J. Simpson acquittal.) We place less stock now than we used to in the testimony of children who testify or prepare to testify who have been coached by psychologists who use certain techniques. We are more aware of the subtle power of race in affecting verdicts and sentences.
    We also live in an era when Congress has imposed strict determinate sentencing on a wide variety of crimes, hamstringing a judge’s ability to impose just sentences for appropriate cases. King George never had to deal with that sort of thing in Merrye Olde England.

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  8. Steve Plunk says:

    We have pardons because the law can be a blunt instrument of justice and we are a forgiving people.  Both are overwhelming reasons to keep this “anachronism”.

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  9. Tano says:

    “First, it is a power whose legacy is an appeal to the throne in a monarchy.  As such, it is really an anachronism that in many ways doesn’t make much sense in a democratic setting.”

     
    That seems to assume that the transition from monarchy to democracy brought along with it a perfection of the judicial system, such that unjust outcomes are no longer possible. I can barely believe that I am writing this, but I wholeheartedly agree with Steve Plunk’s eloquent comment above.
     

    it is a perk of office used for political reasons.

    and

    TL:precisely because the pardons are so political.

     
    While some are political, my impression is that most are not – but are cases where people who have rehabilitated themselves, demonstrably, after serving their sentence etc. have been granted pardons in recognition of that turn-around and subsequent contributions to society.

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  10. André Kenji says:

    “Aaron’s biggest crime, it turns out, was not conspiracy to distribute cocaine. He could have been a big dealer, snitched on the career criminals and been free by now. But because he was a college kid unfamiliar with the courts, Clarence Aaron did not know how to game the system.
    Now he’s a 41-year-old inmate who has paid his debt to society and taken responsibility for his misdeeds. Aaron has had a good record in prison. He has supporters who say they will hire him if he is released.
    Yes, presidential pardons carry political risk. Former GOP Arkansas Gov. Mike Huckabee commuted the sentence of a violent felon with a history of prison violations, including fighting. Maurice Clemmons later killed four Washington police officers.
    Democrat Michael Dukakis was governor when Massachusetts mistakenly furloughed murderer Willie Horton, who raped a Maryland woman.
    Obama can avoid those pitfalls by focusing on nonviolent drug offenders serving outrageously long time behind bars because of the draconian federal mandatory minimum sentencing system. He can limit clemency to inmates with clean prison records. He can commute prison terms but require that inmates be released under supervision.
    I can’t prove that, as an African American male, Clarence Aaron was subjected to a harsher sentence than would have been imposed on a white college student. But as Aaron told me over the phone in 2002, “I don’t see too many young white kids coming into the penitentiary.”
    Read more: http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/11/10/ED3B1G9E4T.DTL#ixzz16jWpoj1B

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  11. Peterh says:

    Rather, it is a perk of office used for political reasons

    You’re half way there…..the other half is a ***cough*** quid pro quo ***cough*** campaign contribution…..on second thought…..the two blend rather easily….

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  12. Alex Knapp says:

    We’re living in a time where the Republican Party and its supporters have successfully turned traditional American and Judeo-Christian values of decency, mercy, restraint, and non-violence into political liabilities and you’re surprised that there are fewer pardons than there used to be?

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  13. Steve Plunk says:

    Gee Alex, letting your partisanship show?  The Republicans raised legitimate questions regarding Clinton’s pardons at the end of his second term.  That’s not turning tradition into political liabilities but rather proper oversight and balance of powers.  Blame Republicans?  Is that all you have to offer?

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  14. [...] President Obama was distinguishing himself by going through the first 18 months of his Presidency without granting a single Presidential pardon or request for Executive clemency. That situation was rectified earlier this week: WASHINGTON [...]

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