Do Presidential Pardons Still Make Sense?

Obama has issued more commutations than all his predecessors combined. He set the single-day record Monday.

presidential-pardons-commutations

President Obama, who has issued more career commutations than all his predecessors combined, broke the individual daily record yesterday. From the press release:

Today, President Obama granted clemency to 231 deserving individuals — the most individual acts of clemency granted in a single day by any president in this nation’s history. With today’s 153 commutations, the President has now commuted the sentences of 1,176 individuals, including 395 life sentences. The President also granted pardons to 78 individuals, bringing his total number of pardons to 148. Today’s acts of clemency — and the mercy the President has shown his 1,324 clemency recipients — exemplify his belief that America is a nation of second chances.

The 231 individuals granted clemency today have all demonstrated that they are ready to make use — or have already made use — of a second chance. While each clemency recipient’s story is unique, the common thread of rehabilitation underlies all of them. For the pardon recipient, it is the story of an individual who has led a productive and law-abiding post-conviction life, including by contributing to the community in a meaningful way. For the commutation recipient, it is the story of an individual who has made the most of his or her time in prison, by participating in educational courses, vocational training, and drug treatment. These are the stories that demonstrate the successes that can be achieved — by both individuals and society — in a nation of second chances.

Today’s grants signify the President’s continued commitment to exercising his clemency authority through the remainder of his time in office. In 2016 alone, the President has granted clemency to more than 1,000 deserving individuals. The President continues to review clemency applications on an individualized basis to determine whether a particular applicant has demonstrated a readiness to make use of his or her second chance, and I expect that the President will issue more grants of both commutations and pardons before he leaves office. The mercy that the President has shown his 1,324 clemency recipients is remarkable, but we must remember that clemency is a tool of last resort and that only Congress can achieve the broader reforms needed to ensure over the long run that our criminal justice system operates more fairly and effectively in the service of public safety.

I have no idea how “deserving” said individuals are, especially in comparison with the massive number of people who will remain in prison after Obama leaves office. I have no reason to think they weren’t well-vetted by the Justice Department or that there’s anything nefarious going on here. Indeed, it looks like genuine acts of mercy on the part of the president.  This isn’t Bill Clinton pardoning wealthy donors on his way out the door.

Still, like the Electoral College, this seems like an anachronism that has outlived its day. Our entire system of government is based on a system of checks and balances yet we give our chief executives—the presidents and many (most?) state governors—the power the unilaterally overturn the results of the criminal justice system. Not only is it rife with potential for abuse (indeed, Newt Gingrich is openly encouraging President-Elect Trump to use it to allow his cronies to ignore anti-corruption laws) but it seems patently wrong to reserve mercy to those who can somehow gain the attention of the president or governor.

Former Illinois Governor Pat Quinn issued  1,752 pardons during his tenure, including 232 on his way out the door last year.  That’s very much on the high end. As a piece in Governing magazine from 2013 notes, governors have been less inclined to issue pardons in recent decades because of increasing political scrutiny. Then again, a 2015 piece in the same forum reports, “gubernatorial pardons may be about ready to start making a comeback. As part of the broader rethinking of criminal justice strategies, in which concerns about rehabilitation, exonerations and expungement of records have become part of the mix, more governors seem willing to embrace their historic role of offering clemency to those who have earned it.”

But should such an important government function really be subject to such whims? Many states have decided not:

In six states, pardons are entirely the province of an independent commission. In 20 states, the governor can make the decision, but must consult with a board of one kind or another. In Rhode Island, the Senate must approve every pardon application before it can be granted.

I’d prefer a commission or the like become the norm for both state and federal offenders but would be fine with a Rhode Island-style model as well.

There isn’t going to be enough of a groundswell to amend the Constitution on this issue unless Trump abuses it bigly—in a completely unpresidented fashion.  But it’s really time for it to go.

FILED UNDER: Government, Law and the Courts
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. J-Dub says:

    in a completely unpresidented fashion

    Don’t judge the man until you’ve tweeted at 3am without making any spelling errors. Sad!

  2. James Joyner says:

    @J-Dub: Indeed. As I tweeted yesterday, it’s going to turn out to be a very useful coinage in a Trump administration.

  3. C. Clavin says:

    Newt Gingrich said yesterday that Trump isn’t beholden to anti-nepotism laws because he can simply pardon his children for breaking the law.

    “You can’t say that Trump Tower is not the Trump Tower or that Trump Hotel is not the Trump Hotel, and you can’t say that the kids who run it aren’t his children,” Gingrich said. “These are facts and they’re obvious.”

    So essentially Gingrich is saying that Trump is not beholden to any law…because he’s rich. I mean…Nixon could have just pardoned everyone in his administration. Trump has already said that there can be no conflicts of interest because he is the President.

    The law’s totally on my side, meaning, the president can’t have a conflict of interest

    I’m not sure how…with nothing but a feckless Congress overseeing Trump…we can prevent this from becoming a dictatorship. Welcome to Trumpistan.

  4. Guarneri says:

    It’s like thumbs up or down in the Coliseum.

  5. C. Clavin says:

    @Guarneri:

    It’s like thumbs up or down in the Coliseum.

    Once again you show your ignorance,,,this time ignorance of history.

  6. bill says:

    another record (albeit dubious) for obama. the amount of prisoners freed and the debt are all more than any of his predecessors combined. whoot-whoot……
    he can’t wait to leave office and try to make clinton type money on tour.

  7. Hal_10000 says:

    I have to disagree. The pardon power can be abused and has been. But it is also one of the few checks we still have on a criminal justice system that is out of control, that brings down draconian sentences on people who don’t deserve them and invests prosecutors with literally the power of life and death. Every other force in politics pushes toward more imprisonment and less of a chance for people accuses (e.g., massively underfunded PD offices). Even when criminal justice reform happens, it’s rarely retroactive. Obama has commuted a lot of sentences but he hasn’t pardoned nearly enough people. This is one power I think the President should retain.

  8. James Pearce says:

    I’m of two minds on this.

    I suspect that most of the folks granted clemency are POWs of the drug war, and in some sense, good. I’m not going to object if Obama releases a bunch of black, non-violent drug offenders who have life sentences because some law and order dickhead has some authority.

    But………in the final month of his presidency, we can look at his legacy and it would be fair to ask: That’s it?

  9. grumpy realist says:

    @James Pearce: Well, it’s one of the few things he can do that can’t get immediately overturned by the Trumpites/Republicans. Who are acting as if they want to erase President Obama from history.

    At least they’re not going to be able to resurrect Osama Bin Laden. Although if it were in their capacity, am quite sure some of them are deranged enough for that as well.

    These people have the mentality of the Soviets. No wonder they love Putin so much.

  10. KM says:

    Trump’s going to have pre-printed, post-dated pardons for his entire family and Cabinet signed and ready to go from Day One. It’s the kind of perk he’d had killed for as CEO and is the best Xmas gift ever on the way out the door after looting everything you can. (Side question: can a President pardon himself? You know he’s asked…..)

    Like any other tool in the Executive’s kit, it’s neither good nor bad. Most of the time, it’s been used for good – to right a previous wrong or to cover the ass of someone who didn’t deserve a witch-hunt from the upcoming Administration. Other then perhaps increasing transparency on the process and imposing limitations (only certain crimes, nothing committed during the term of the pardoner, no ties with the pardoner of any kind, etc), I see no reason to get rid of a useful check in the system just because it can and has been abused.

  11. James Pearce says:

    @grumpy realist:

    it’s one of the few things he can do that can’t get immediately overturned by the Trumpites/Republicans.

    Well, that’s my point.

    Obama could have, as president, worked to end the Drug War. He didn’t. Eric Holder’s memo created a billion dollar business in Colorado, and Jeff Sessions is going to destroy it next year with another memo.

    Obama pardoned over a thousand non-violent drug offenders. Great.

    Next year, Trump’s Justice department will convict over a thousand non-violent drug offenders and sentence them to life in prison.

    We’re still living with Bush’s legacy -Gitmo, the unending War on Terror, a crap economy still sputtering– and Obama’s “legacy” probably won’t even survive February.

  12. Just 'nutha ig'rant cracker says:

    I’m sorry Dr. Joyner, but when I read this post the sense I got was of some “Southern Man” talking about the actions of some “upstart boy.” I haven’t changed my opinion and doubt that I even can. When you can show me something along the lines of Lee Myung-bak’s first year pardons–297 businessmen and corporation officers who helped propel the fraud and economic damage of the 1997 Korean asset bubble (all pardoned so that they, in his own words, “could get back to work where they were needed”), and most of whom were personal friends–get back to me and I’ll reconsider.

  13. James Joyner says:

    @Just ‘nutha ig’rant cracker: I’m not complaining about the Obama commutations at all. That’s why I led with this:

    I have no idea how “deserving” said individuals are, especially in comparison with the massive number of people who will remain in prison after Obama leaves office. I have no reason to think they weren’t well-vetted by the Justice Department or that there’s anything nefarious going on here. Indeed, it looks like genuine acts of mercy on the part of the president. This isn’t Bill Clinton pardoning wealthy donors on his way out the door.

    I’m simply using this as a springboard to question the practice which, practically speaking, can only be modified at the state level since doing so at the presidential level would require amending the Constitution.

  14. Tyrell says:

    Is the president going to take responsibility if some of these people he releases goes out and commits some serious crimes ?