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Barack Obama and the clemency power: real reform on the way?

In the United States, we constantly debate the proper extent of presidential power. The Bush administration's decision to conduct wars in Iraq and Afghanistan as a response to the 9/11 terror attacks spurred a number of recent scholarly works dedicated to exploring the limits of executive power (Fisher 2008; Pfiffner 2008; Rudalevige 2006). In just the past few months, we have weighed the ramifications of President Barack Obama's unilateral decision to allow roughly five million undocumented immigrants to remain on American soil (Shear and Pear 2014).

While these and other discussions have been underway, many scholars have passed over another noteworthy story about presidential power. The Constitution entrusts the president with the all-but-unlimited ability to forgive federal crimes, but presidents have become increasingly reluctant to wield their clemency power (Crouch 2009, 2). President Obama has been no exception and has generally continued a trend of fewer federal pardons and commutations. However, because Obama may secretly be planning to reduce the sentences of potentially hundreds of low-level drug offenders, now seems to be an appropriate time to review his clemency record and search for clues as to what he might do.

In the pages that follow, I will address the state of federal executive clemency under President Obama, who so far has established a track record as one of the least generous presidents in modern history regarding pardons and (until recently) commutations. First, I note that several scholars in a variety of academic disciplines are contributing important work to the body of clemency literature. Next, I look at the origins of the clemency power and how it has fallen out of favor with recent presidents. Then, I consider Obama's sparse record on presidential mercy. I address each of the following questions: What types of criminal offenses has Obama deemed worthy of pardons? How has he used his power to commute sentences? What is the president likely to do with the clemency power in his remaining time in office?

Literature Review

Federal executive clemency, popularly referred to as the "pardon power, is a topic that attracts attention from scholars working in diverse fields. For example, a number of legal scholars have contributed to this particular literature. One of the most prominent attorneys working in the field is former Pardon Attorney Margaret Love (, who has published several insightful pieces on clemency (Love 2010, 2012). Former Pardon Attorney Office staff attorney Samuel Morison set up a professional website ( that contains essays focusing on various aspects of the clemency power. Law professor Douglas Berman maintains Sentencing Law and Policy, a blog that focuses in part on clemency decisions ( Two law schools have developed federal clemency--focused programs that allow their students to step outside academia and obtain practical experience. These programs train law students on the mechanics of clemency and pass on strategies for assisting clemency applicants with preparing the paperwork needed to request presidential mercy through the Pardon Attorney's Office--the president's administrative apparatus for clemency applications housed in the Department of Justice. In 2011, Professor Mark Osier established the first commutation clinic in the United States at the University of St. Thomas School of Law (Metzger 2011). More recently, The Catholic University of America's Columbus School of Law started the CUA Law/Ehrlich Partnership on Clemency, thanks to the relationship between the law school and former Maryland Governor Robert Ehrlich (Catholic University 2013).

Journalists and political scientists have also made valuable contributions. Retired Pulitzer Prize--winning reporter George Lardner Jr. won an important legal case against the Justice Department over public access to rejected clemency applicants names (Doyle 2009) (1) and is cowriting a book on clemency (Lardner and Ruckman, forthcoming). Fellow journalist Dafna Linzer has authored or coauthored several articles containing groundbreaking research on who actually receives clemency (Linzer 2011; Linzer and LaFleur 2011). Among political scientists, Jeffrey Crouch (Crouch 2009, 2011, 2012) and P. S. Ruckman Jr. (Ruckman 2011, 2012b) have added to the clemency corpus through published scholarly work, while Ruckman Jr. also edits Pardon Power, a blog focused on daily news related to state, federal, and international clemency (http://www.

Clemency's Origins

Once the idea of a presidential pardon power was introduced at the Constitutional Convention, delegates engaged in spirited debate over whether (and if so, how) to limit it: Should the president have to obtain the Senate's approval before granting clemency (Farrand 1911, 2:419)? (2) Must the chief executive wait to pardon until after an offender has already been convicted of a crime (Farrand 1911, 2:426)? Does the president need the Senate's approval to pardon treason (Farrand 1911, 2:626-27)? The answer to these questions is no, as the final draft of the Constitution contained language giving the president an all-but-unlimited ability to pardon (Crouch 2009, 15-17). More specifically, in Article II, Section 2, Clause 1 of the Constitution, the president is given the power to grant reprieves and pardons for federal crimes (excluding impeachment). Alexander Hamilton noted in Federalist No. 74 that the law does not necessarily dictate a just result in every case, so "a single man" (the president) should be entrusted with the clemency power to make "exceptions in favor of unfortunate guilt" (Rossi ter 1999, 415).

Nothing in the Constitution creates an explicit check on the president's pardon power, but members of the federal legislature can show their disapproval of a volatile clemency decision by holding hearings, calling witnesses, and otherwise raising public awareness. Congressional committees have held hearings on controversial clemency decisions as recently as this century: following Bill Clinton's pardon of Marc Rich in 2001, and again in 2007, after George W. Bush's decision to commute the prison sentence of I. Lewis Scooter Libby to no time served. Still, Congress has yet to engage its two most serious methods of expressing displeasure with a clemency decision by either impeaching the president or amending the Constitution.

When clemency questions have ended up in court, judges have usually defended the president's pardon power from attempts by the legislature to restrict it (Crouch 2009, chap. 2). The courts have recognized the president's ability to do all of the following grant a full pardon, which forgives the offense and can restore lost civil rights, such as the ability to vote or own a firearm; reduce an offender's sentence via a commutation; or issue a reprieve/respite that merely puts off full punishment until a later date (Crouch 2009, 20). This legal history helps to explain how clemency is actually a broader power than one may initially believe, if judging solely by the short constitutional clause that allows the president to issue "reprieves and pardons."

Contemporary Clemency

There was a time when granting clemency was basically another routine administrative task for the chief executive (Love 2010, 1186). Today, however, presidential mercy has virtually gone away. This recent pattern of extreme frugality with clemency--currently maintained by President Obama, as discussed below--is unusual. Indeed, as explained in the next section, presidents from the middle of the twentieth century onward routinely granted clemency to about one of every four applicants. Another contemporary trend is that each of our last three presidents (before Obama) has made at least one self-interested clemency decision while a lame duck president.

Fewer Clemency Grants

A quick look at each president who has served since World War II shows clemency's decline. Citations to these presidential actions appear in a separate reference section called "Clemency Statistics." Franklin Roosevelt commuted 488 sentences and gave 2,819 pardons for a clemency approval percentage (positive clemency decisions over applications received) of 24.4% (3,307 grants/13,541 received requests) (Commutations by Roosevelt; Pardons by Roosevelt). Harry Truman established a clemency approval percentage of 40.4% through giving 1,913 pardons and commuting 118 sentences (2,031 grants/5,030 received requests) (Commutations by Truman; Pardons by Truman). As president during most of the 1950s, Dwight Eisenhower granted 1,110 pardons and 47 commutations, for a clemency approval percentage of 28.2% (1,157 grants/4,100 received requests) (Commutations by Eisenhower; Pardons by Eisenhower).

In his brief "1,000 days" in office, John Kennedy pardoned 472 and commuted the sentences of 100 offenders, compiling a clemency approval percentage of 32.7% (572 grants/1,749 received requests) (Commutations by Kennedy; Pardons by Kennedy). Lyndon Johnson commuted 226 sentences and issued 960 pardons, an approval percentage of 26.1% (1,186 grants/4,537 received requests) (Commutations by Johnson; Pardons by Johnson). Richard Nixon--who received a controversial pardon of his own--pardoned 863 and commuted 60 sentences, an approval percentage of 35.6% (923 grants/2,591 received requests) (Commutations by Nixon; Pardons by Nixon). Gerald Ford and Jimmy Carter round out the 1970s: Ford pardoned 382 and commuted 22 sentences for an approval percentage of 26.5% (404 grants/1,527 received requests) (Commutations by Ford; Pardons by Ford), and Carter pardoned 534 and commuted 29 sentences for an approval percentage of 21.4% (563 grants/2,627 received requests) (Commutations by Carter; Pardons by Carter).

Looking back over the past few decades, both Republican and Democratic presidents have become quite stingy with clemency. Out of all five men who have served as president since 1981, the one with the highest approval percentage for clemency petitions over the last several decades may be a surprise, given the tough on crime reputation of Ronald Reagan. In two terms as president, Reagan offered 393 pardons and 13 sentence commutations, for an approval percentage of 11.9% (406 grants/3,404 received requests) (Commutations by Reagan; Pardons by Reagan). Reagan was followed (both in office and, among recent Republican presidents, in clemency approval percentage) by George H. W. Bush, who granted just 74 pardons and 3 commutations on his way to compiling an approval percentage of 5.3% (77 grants/1,466 received requests) (Commutations by George H. W. Bush; Pardons by George H. W. Bush). On the surface, George W. Bush's 189 pardons and 11 commutations may seem more generous than his father's record, but the second President Bush handled so many applications for clemency that his approval percentage finished under 2% (200 grants/11,074 received requests) (Commutations by George W. Bush; Pardons by George W. Bush).

On the Democratic side, Clinton pardoned 396 and commuted 61 sentences for an approval percentage of 6.1%, very close to that of George H. W. Bush despite the fact that Clinton received many more applications than Bush (457 grants/7,489 received requests) (Commutations by Clinton; Pardons by Clinton). So far, Obama has compiled a meager overall approval percentage of less than 1% by issuing just 64 pardons and 89 commutations from nearly 20,000 petitioners (using application numbers updated through the first nine months of fiscal year 2015, he has received 17,156 petitions for commutation and 1,968 requests for pardon, for a total of 19,124 applications--and counting) (Commutations by Obama; Pardons by Obama). He has denied over 9,000 petitions for clemency so far (Commutations by Obama; Pardons by Obama).

The fact that clemency could be so neglected by recent presidents of both major political parties suggests that the decline of clemency is not simply a partisan issue but instead is due, at least in part, to larger trends. Presidents of both parties have become hesitant to pardon for a number of reasons, including the tough-on-crime mentality of presidents and the public, although the public may be reevaluating this stance somewhat. Prominent Republican funder Charles Koch recently made the news after a comment by Mark Holden, a top Koch Industries official. Holden noted Koch's support for Obama's clemency program and the factors it established for evaluating clemency candidates, but also said, "I'm not faulting the administration ... [But] people got their hopes up. Why isn't it going any faster?" (Schouten 2015). Other major restrictions include the prosecutors who review clemency applications and the 24/7 mass media, which focus on the president's every move (Crouch 2009, 60-64). At the same time, presidents should treat clemency as one of their constitutional obligations of office (Crouch 2009, 24-25).

Self-Interested Clemency

In the final months of one's presidency, when the midterm elections have passed by and the president has started to contemplate life after the Oval Office, the temptation to use clemency irresponsibly can sometimes be irresistible. However, unlike his three most recent predecessors, Obama has not yet fallen into the pattern of using clemency to advance his own personal interests.

On Christmas Eve 1992, President George H. W. Bush pardoned Caspar Weinberger and other Iran-Contra figures following the president's election loss to Clinton the previous month. Weinberger had recently been reindicted by the special prosecutor, but Bush's pardon ended Weinberger's case while also ensuring that Bush himself would not be exposed to potential legal consequences (Crouch 2009, 101-07).

In one of several controversial clemency decisions he made near the end of his presidency, Clinton pardoned financier Marc Rich, who was living abroad at the time. The pardon was the culmination of an elaborate campaign for clemency participated in by his ex-wife, Denise, who had donated almost half a million dollars to the Clinton presidential library (Crouch 2009, 111-17). Marc Rich was one of several offenders granted "last minute" clemency by Clinton in literally his final hours in the White House.

Vice President Dick Cheney's former chief of staff, I. Lewis "Scooter" Libby, found himself in the headlines after he became a target for prosecutors searching for the person who disclosed that Valerie Plame was a CIA agent. In an apparent attempt to "take one for the team," Libby offered a weak defense of himself at trial, refusing to testify, call Vice President Cheney to testify on his behalf, or agree to a plea bargain (Crouch 2009, 118-26). Judge Reggie Walton sentenced Libby to 30 months in prison and required him to pay a $250,000 fine (Crouch 2009, 122). Shortly before Libby was to go to prison, President Bush commuted his sentence to no time served (Crouch 2009, 123).

Obama's Clemency Decisions

As noted earlier, one of the goals of this article is to evaluate Obama's clemency record to date in order to determine whether he has left behind any clues that some dramatic clemency action may still be in the works. As of July 13, 2015, the timing and number of most of Obama's clemency decisions so far do not yield much by way of promise--that is, until one reflects back and sees that a pattern may have begun to form.


Much like his predecessors, Obama has granted a few expected 'Christmas pardons (Ruckman 2011). He first used the clemency power in December 2010, when he granted nine pardons and no commutations (Pardons by Obama [2009-2014]). He granted executive mercy again in May 2011, with eight pardons and no commutations, and granted five more pardons along with his first sentence commutation in November 2011 (Pardons by Obama [2009-2014]; Commutations by Obama [2009-2015]).

In March 2013, Obama used clemency for the first time in his second term as president, granting 17 pardons and no commutations (Pardons by Obama [2009-2014]; Rucker 2013). After that, he granted 13 pardons in December 2013, along with 8 commutations, added a single commutation in April 2014, and then another 12 pardons in December 2014 to go along with 11 commutations--8 of which went to drug offenders, and 3 of which were for members of the "Cuban Five who were released from U.S. custody as part of a bargain with Cuba (Pardons by Obama [2009-2014]; Commutations by Obama [2009-2015]). In March 2015, Obama granted 22 more commutations, all to offenders who "were serving sentences longer than 10 years for non-violent drug crimes (Waldman 2015). Most recently, on July 13, 2015, he commuted the prison sentences of 46 additional "nonviolent drug offenders" (Commutations by Obama [2009-2015]; Benac 2015).

When Obama has pardoned, it has been for fairly similar offenses; his sentence commutations have been granted largely for drug-related crimes. Because his clemency decisions to date suggest that he views pardons and commutations as appropriate for separate types of offenses, I will discuss each in turn.


As noted by clemency scholar P. S. Ruckman Jr., Obama has largely granted full pardons for "old, minor offenses, and minor sentences" (Huus 2012). Those offenses include drug manufacturing or distribution, counterfeiting, wire fraud, mail fraud, money laundering, embezzlement, and so on (Pardons by Obama [2009-2014]). Sometimes Obama's pardons were more interesting for having unusual facts than for any larger significance. For example, the president pardoned Ronald Lee Foster for a fairly strange offense. As an 18year-old Marine, the 66-year-old Foster was convicted of mutilating currency for cutting the edges off of pennies so that vending machines would process them as dimes (Gibb 2010). The most important point about Obama's pardons is that, to date, he has granted very few of them (64). It would take some doing for Obama to climb from the George H. W. Bush range (74 pardons) to even the level of George W. Bush (189 pardons).

President Obama has scrupulously avoided pardoning anyone with a high public profile. He has steered clear of controversial figures despite media interest in the stories of several famous offenders. For example, he refused to acknowledge a petition to pardon National Security Agency whistleblower Edward Snowden despite a White House policy to respond to petitions containing over 100,000 signatures (as the Snowden petition did) (Nelson 2014). In the context of ongoing discussions between Israel and Palestine, he passed on the opportunity to pardon convicted spy Jonathan Pollard (Associated Press 2014). He also opted not to grant a posthumous pardon, resisting an entreaty from Senate Majority Leader Harry Reid (D-NV) and Senator John McCain (R-AZ) to pardon legendary boxer Jack Johnson (McCain 2014; Villacorta 2014). An application on behalf of long-deceased The Gift of the Magi" author O. Henry did not survive the pardon attorney's review (Silva 2013).


A couple of cases stood out from a number of relatively anonymous ones as opportunities for President Obama to use commutations to correct clear injustices. Clarence Aaron s case allowed Obama to assist someone who had been treated unfairly by the criminal justice system not once, but twice (Serwer 2013). First, as a 24-year-old, Aaron was sentenced to three life terms in prison for his first federal offense: a nonviolent crack cocaine violation that, under the law of the time, punished him 100 times what he would have received for a powder cocaine offense (Serwer 2013). Aaron and others convicted under this version of the law were not helped by the Fair Sentencing Act signed by Obama in 2010, which reduced that disparity from 100 to 1 to 18 to 1, because the law was not retroactive (Serwer 2013).

Second, Pardon Attorney Ronald L. Rodgers, as noted in an inspector general's report, decided to omit from Aaron's file supportive statements from Aaron's prosecutor and sentencing judge (Serwer 2013). According to the inspector general, those statements were never transmitted to the White House because Rodgers did not want to see Aaron granted clemency (Serwer 2013). This crucial omission destroyed Aaron's chances with the president because, as noted by Dafna Linzer, "[t]he White House relies almost exclusively on [the pardon attorney's advice] in deciding whom the President will forgive or release from prison" (Linzer 2012b).

When Linzer later provided those supportive statements by Aaron's sentencing judge and prosecutor to Kenneth Lee, the Bush administration attorney handling Aaron's case for the president at the time, an "aghast" Lee recalled "we had been asking the pardons office to reconsider [the case] all year" (Linzer 2012a). The inspector general noted in the report that, in the Aaron case, the pardon attorney failed to meet the professional standards required for someone serving in his position (U.S. Department of Justice 2012). Despite the protests of many clemency observers (Ruckman 2012a), Rodgers remained employed as pardon attorney for an additional 16 months before he transferred to another Department of Justice position (Linzer 2014). On December 19, 2013, President Obama commuted Aaron's life terms, allowing him to leave prison by April 17, 2014 (Commutations by Obama [2009-2015]).

Obama also used clemency to aid Cesar (or Ceasar) Huerta Cantu. Cantu received a sentence commutation to remedy a simple bookkeeping mistake: a typo on his paperwork. That error added more than three years to the sentence before Obama remedied it (Baker 2014). Because of Obama's action, Cantu was scheduled for release in May 2015. On December 15, 2014, three of the "Cuban Five" prisoners received sentence commutations as a means to allow Obama to complete a political deal with Cuba (Commutations by Obama [2009-2015]; Meyer 2014).

Perhaps the most intriguing commutations were those granted on March 31 and July 13, 2015 (Commutations by Obama [2009-2015]). As pointed out by journalists Juliet Eilperin and Sari Horwitz (2015), the March 31 commutations were part of a "new Justice Department-led initiative" intended to "reduce the enormous costs of overcrowded prisons and address drug sentences handed down under old guidelines U.S. officials now view as too harsh." These 22 commutations more than doubled Obamas previous total of 21. Then, on July 13, 2015, Obama granted 46 additional sentence commutations--more than twice even his March 31 total--and possibly helped to set the stage for even bigger things to come.

Real Reform on the Way?

One of President Obama's early major legislative accomplishments was signing the Fair Sentencing Act of 2010. This law helped narrow the sentencing gap between crack and powder cocaine offenses from a 100 to 1 ratio to 18 to 1, a recognition that the law discriminated against crack users (primarily African American) as opposed to largely Caucasian powder cocaine users.

Still, his response to clemency requests for drug offenses (or really, any crimes) throughout most of his presidency has been "no." What is more, the Pardon Attorney's Office has apparently shared the same philosophy--at least, it did during the term of Pardon Attorney Ronald Rodgers, who served from April 2008 to April 2014. According to a 2010 op-ed by a former pardon attorney staffer who spent over a decade working on cases there, "the prevailing view within the Justice Department is that the pardon attorney's sole institutional function is to defend the department's prosecutorial prerogatives.... [T]here is a strong presumption within the pardon office that the number of favorable recommendations should be kept to an absolute minimum, regardless of the equitable merits of any individual petition" (Morison 2010).

Given the lack of positive clemency recommendations heading up to the president from the Pardon Attorney s Office, and the dearth of pardons and commutations coming from the White House, it was perhaps no surprise when the New York Times editorial board criticized Obama on February 9, 2014, noting that the president had overseen "one of the least merciful administrations in modern history" with a "clemency system ... in a state of collapse" (Editorial Board 2014a).

Interestingly, in a statement made upon granting sentence commutations to Clarence Aaron and seven other crack cocaine offenders on December 19, 2013, Obama pointed out that he was "commuting the prison terms of eight men and women who were sentenced under an unfair system (Obama 2013; Savage 2013). Did his explicit reference to "an unfair system" suggest that these commutations could be a precursor to more sweeping moves? This appeared to be (and may still be) a strong possibility, thanks largely to three major developments in the following months.

The Deputy Attorney General's Announcements

Deputy Attorney General James Cole concluded a speech to the New York State Bar Association on January 30, 2014, by making a remarkable request: he asked lawyers to help clemency applicants who met certain criteria to prepare applications for presidential mercy (Cole 2014a). Those criteria were "one who has a clean record in prison, does not present a threat to public safety, and who is facing a life or near-life sentence that is excessive under current law (Cole 2014a). In addition, Cole mentioned that among the applicants meeting these criteria would be "non-violent, low-level drug offenders who were not leaders of--nor had any significant ties to--large-scale organizations, gangs, or cartels. We would also look for petitions from first-time offenders or offenders without an extensive criminal history (Cole 2014a). This was the first of three announcements that Cole would make with regard to the federal clemency system.

Second, on April 23, 2014, Cole announced that President Obama had appointed a new interim pardon attorney, Deborah Leff, to replace the incumbent, Ronald Rodgers (Cole 2014b). Leff had helped poor people accused of crimes receive fair treatment from the criminal justice system in the Justice Department's Access to Justice Initiative and was viewed by clemency advocates as someone who might be more supportive of clemency recommendations (Rapoport 2014).

Third, Cole noted that one crucial aspect of the department's "new clemency initiative" would be to "prioritize" and "expedite[]" petitions that met six criteria (Cole 2014b). Those criteria were: someone currently incarcerated who would have likely been given "a substantially lower" penalty had the offender violated the new version of the law; "non-violent, low-level" prisoners lacking "significant ties" to a larger illegal group or operation; someone who has been incarcerated for a minimum of 120 months; someone with no "significant criminal history"; a person who has shown "good conduct" while incarcerated; and someone with "no history of violence" either before or during their period of incarceration (Cole 2014b). According to sentencing law expert Douglas Berman, anywhere from 5,000 prisoners (and up) could potentially satisfy all of these requirements (Rapoport 2014).

Clemency Project 2014 and the Pardon Attorney's Office

In response to Cole's request, five organizations with an interest in clemency--the American Civil Liberties Union, Families Against Mandatory Minimums, the Federal Defenders, the National Association of Criminal Defense Lawyers, and the American Bar Association--decided to form an organization called Clemency Project 2014 (Clemency Project 2014a). Their purpose was to help identify eligible applicants by preparing clemency applications to be processed by the Pardon Attorney's Office (Clemency Project 2014b).

Obama's plan so far has yielded huge numbers of applicants but very few clemency grants. The push for screening potential clemency applicants through Clemency Project 2014 has run into a number of procedural roadblocks, including difficulty obtaining necessary court records and criticism about the unclear relationship between this private organization and the Department of Justice (Gerstein 2015a, 2015b). As of February 2015, Clemency Project 2014 had over 1,000 pro bono attorneys working on over 35,000 clemency cases (Horwitz 2015). However, following Cole's address of January 30, 2014, only 14 applications from Clemency Project 2014 reached the Pardon Attorney's Office by February 2015 (Horwitz 2015).

At the beginning of his presidency, Obama basically adopted George W. Bushs restrictive outlook on clemency decisions (Korte 2015a). He seems to have arrived at his current inclination for commuting sentences much later in his presidency. During a meeting with U.S. attorneys in March 2014, Obama said "I take my clemency authority very seriously" (Goodwin 2014). In March 2015, Obama told the Huffington Post that he would begin to offer clemency "more aggressively for people who meet the criteria--nonviolent crimes, have served already a long period of time, have shown that they re rehabilitated (Reilly 2015). For 2016, Obama is seeking substantial increases in funding for both staff and budgeting needs to assist with handling clemency applications prompted by Cole's initiative (Korte 2015b).

Obama's decision to relax the clemency application requirements was a strong step inasmuch as it was an acknowledgment that many drug offenders were not helped by revisions to the Fair Sentencing Act. However, as of today, the administration's renewed interest in receiving clemency applications has not been followed by a significant uptick in the number of positive clemency recommendations and grants. In a Washington Post op-ed posted online on April 9, 2015, George Lardner Jr. and P. S. Ruckman Jr. pointed out that, regarding clemency, "President Obama is still more talk than action," and should "take the heat and stop letting Justice be the scapegoat" for the current state of the clemency program (Lardner and Ruckman 2015).

Reform Suggestions

One of the trainers involved with Clemency Project 2014, Mark Osier, wrote an op-ed in February 2014 that succinctly illustrated how the administration's new approach of welcoming additional clemency applications missed the larger point: there were simply not enough clemency decisions coming from the president. As Osier (2014) noted,
   [Cole's] solution doesn't address the actual problem with federal
   clemency. No one has suggested that what is broken with the pardon
   power is that there aren't enough petitions in the system to the
   contrary, there is a backlog of some 3,500 clemency petitions
   awaiting a decision. The problem is that the process doesn't work.
   The pipeline is clogged, and the solution can t be simply to jam
   more things into it.... [I]t's unclear how giving the pardon
   attorney and the others who consider these petitions even more work
   is supposed to solve the problem. Increasing the size of the clog
   does nothing to clear out a pipe.

Osler has identified the crux of the problem, and he also offers a possible solution: a clemency review board featuring experts from all areas of the criminal justice system (not just prosecutors, as is currently the case) who use data to support their work (Osler 2013). In fact, the New York Times editorial board endorsed "a complete overhaul of the clemency process and cited a piece by written by Osler and fellow law professor Rachel Barkow (Barkow and Osler 2015) in endorsing the removal of the screening process from the Justice Department and instead creating "an independent commission that makes informed recommendations directly to the president" (Editorial Board 2014b). Osler and Barkow are not alone in observing that the clemency process appears to suffer from systemic deficiencies that the president's new initiative leaves virtually unaddressed. Joining Osler in decrying the current state of federal clemency are Gregory Craig, former White House counsel for President Obama; former Maryland Governor Robert Ehrlich; and former Justice Department Pardon Attorney Margaret Love (Kreig 2012).

Another option, endorsed by law professor Douglas Berman, would be to create "a 'Clemency Commission' headed by a 'Clemency Czar'" (Berman 2010, 72). Still another alternative, offered by law student Jonathan Menitove, would require the president, through an executive order, to devise a "small, partisan Presidential Clemency Board," made up of the president and four congressional leaders, that would address three key principles: it must be sufficiently agile to respond in those situations where the public interest demands a pardon; second, the system must be sufficiently responsive to deserving federal offenders; and finally, the presidential pardon must provide a sufficient level of accountability to the leaders who wield it" (Menitove 2009, 455, 458).

Reformers are also pursuing legislative action to make the Fair Sentencing Act of 2010 retroactive via the Smarter Sentencing Act, a bill cosponsored by Senator Mike Lee (R-UT) and Senator Dick Durbin (D-IL) that, according to the Congressional Budget Office, would also save $4 billion on incarceration expenses spread out over 10 years (Gullo 2014; Lee 2014). It is clear that the status quo is no longer adequate and has not been for some time.

Perhaps momentum for reform will eventually manifest itself in the form of a new clemency review process, if not implemented by Obama, then perhaps by one of his successors. While he is still in office, Obama may be planning to continue to work within the existing Department of Justice bureaucracy to grant sentence commutations to offenders who satisfy all or most of the six criteria mentioned in Cole's announcement. Although likely not the best long-term solution, there is some precedent for this approach. President Kennedy used clemency to reduce some sentences of those who violated the Narcotics Control Act of 1956 (Shanor and Miller 2000-2001, 142-43).


Federal clemency is a "check and balance" power that the president can use to correct an injustice committed by the unfair application of a law. Experts working on drug cases see an important role for the president in addressing shortcomings in the Fair Sentencing Act by using clemency to reduce disproportionate sentences imposed on many low-level drug offenders. President Obama has recently granted sentence commutations to address some drug cases. As his presidency has continued, he has granted few pardons, but the number of drug-related sentence commutations coming from the White House has gradually grown. Perhaps most importantly, he has raised expectations through public requests for both additional applications and for lawyers to assist with preparing those applications. He also appointed a new pardon attorney with a reputation for working on behalf of applicants.

Given all of these factors, it is unclear why, as of July 13, 2015, there have not been major changes in the way clemency applications are processed by the Department of Justice or in the number of commutations and pardons granted. As noted by Mark Osler, Obama's paltry first clemency decisions in December 2014 following Coles remarks--whether intentionally or not--sent a message loud and clear: "if there's a big change coming it hasn't come yet" (Zezima 2014). Obama's commutations in March and July 2015 have revived some hope that a major event of some sort might still be on the horizon.

In the final months of his presidency, will Obama continue to sporadically grant commutations to small groups of drug offenders that meet the criteria articulated by Cole? Perhaps. This would be the most politically safe road, and presidents do care about their legacies. If he continues to try to remain under the radar with his clemency decisions, Obama could still make a significant mark in assisting many of those drug offenders who were not helped by the Fair Sentencing Act by simply continuing his current approach.

However, Obama also has an opportunity to act boldly. He need not fear electoral punishment, as he is past the midterm election cycle of his second (and final) term in office and does not have a handpicked successor. Might he grant commutations to minor drug offenders more often? Could the occasions on which he grants clemency become more frequent? Perhaps both? It is impossible to know what the president's endgame is here, but he seems to be preparing the ground for a large-scale, systematic use of the clemency power to address low-level drug offenses. Assuming he decides to continue to commute sentences for such crimes on the basis of the criteria he has established, in cases processed via a fair, thorough screening process, it would likely be a welcome, justifiable--albeit still controversial--use of the clemency power.


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(1.) For the judge's order in Lardner v. Department of Justice, see 07312009.pdf (accessed June 5, 2015).

(2.) Volume 2 is available at lit(fr0022)) (accessed June 12, 2015).

Jeffrey Crouch is an assistant professor of American politics at American University in Washington. DC. He is the author of The Presidential Pardon Power and is Reviews & Book Editor for Congress & the Presidency.

AUTHOR'S NOTE: I would like to thank Lou Fisher, Margaret Love. Mark Osier, and P. S. Ruckman Jr. for their careful review and thoughtful suggestions regarding this article.
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Title Annotation:The Law
Author:Crouch, Jeffrey
Publication:Presidential Studies Quarterly
Article Type:Report
Geographic Code:1USA
Date:Nov 20, 2015
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