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The Slow and Complicated Return of Clemency

On Wednesday, President Obama commuted the sentences of 214 people, the most issued in a single day since 1900.

If you landed behind bars for a non-violent drug offense, President Barack Obama wants to set you free.

On Wednesday, Obama commuted the sentences of 214 federal inmates, the most granted by a president since the Department of Justice began tracking clemency data in 1900. According to the White House, Obama has granted “more commutations than the previous nine presidents combined.” The Washington Postreports he is issuing an average of seven clemency actions a month (that’s both commutations and pardons, which are different, but we’ll get to that), a faster rate than any other president since Jimmy Carter.

There’s a very specific reason for this sudden uptick in pardons: Obama is using his executive power of clemency to supplement his legislative push to undo the scars left by the War on Drugs. The Fair Sentencing Act of 2010 that Obama signed into law was designed to counteract the federal mandatory minimums for possession of crack and powdered cocaine that were established by the Anti-Drug Abuse Act of 1986. While the United States Sentencing Commission sought to reduce the sentences of non-violent drug offenders serving lengthy prison terms (some 6,000 inmates were expected for release in 2015), many of the 100,000 drug offenders in U.S. prisons don’t retroactively qualify for relief. Hence, executive clemency: Obama can unilaterally free those Americans who have “more than repaid their debt to society and earned this second chance,” as the White House put it last June.

Some conservatives may express concerns over Obama’s circumvention of the law with his executive power. But the strategic use of clemency is not a new occurrence in American politics. Pardons and commutations were deployed liberally in the run-up to World War II: Woodrow Wilson, Warren G. Harding, and Franklin Roosevelt used clemency actions at the highest rate (average per month).

The gears of bureaucracy have ground the clemency process to a halt.

Democratic presidents tended to dole out more clemency actions than their Republican counterparts until Lyndon B. Johnson’s presidency. And while the issue of clemency “provoked an impassioned debate” among the framers of the Constitution, few acts of clemency have triggered a national controversy, according to historian P.S. Ruckman. (A few, however, do come to mind: George Washington’s 1795 pardon of participants in the Whiskey Rebellion over alcohol taxes, Wilson’s pardon of “traitor” Eugene Victor Debts, and Gerald Ford’s pardon of disgraced president Richard Nixon).

Obama’s use of his clemency power is a bit different from his predecessors, a concentrated effort to both functionally and symbolically subvert a bad policy — and it is bad policy, as Kate Wheelingnotes: Mandatory minimums disproportionately affect certain economic and racial classes and cost taxpayers some $80 billion annually. But while the Obama administration is spearheading one of the most aggressive deployments of executive clemency in recent memory, the measure is far from a silver bullet.

First, clemency alone can’t totally undo the trend in incarceration wrought by the tough-on-crime legislation created by “law and order” politicians. Obama has made some 562 commutations total during his presidency, a drop in a bucket to the tens of thousands of prisoners languishing behind bars for non-violent drug offenses, especially as the rate at which the administration issues clemency actions remains “still well under historic norms for most of the 20th century,” as the Postput it. There are simply too many offenders for the Obama administration to deal with.

This is because, second, the modern clemency process is a total mess. A 2015 Politicoinvestigation found Obama’s clemency initiative “languished during its first year due to a flood of applications, inadequate resources, reliance on a group of outside lawyers to prepare prisoners’ paperwork, and a series of bureaucratic hurdles that weren’t anticipated.”

In her resignation letter earlier this year , U.S. Pardon Attorney Deborah Leff accused the Department of Justice of failing to fulfill its pledge “to provide the resources necessary for my office to make timely and thoughtful recommendations on clemency to the president.” And in March, Reuters reported that “[m]ore than 8,000 cases out of more than 44,000 federal inmates who applied have yet to make it to … review.” The federal government is far larger than it was under the likes of Wilson and Roosevelt; the gears of bureaucracy have ground the clemency process to a halt.

It’s worth noting that the symbolic nature of Obama’s clemency actions rings a bit hollow. While Obama’s issued tons of commutations, the administration has signed fewer pardons — the former reduces a prisoner’s sentence,; the latter effectively negates the conviction—than any president since William McKinley, the first president measured by Department of Justice statistics. This is symbolically consequential: If the purpose of Obama’s clemency actions is to legally and morally invalidate the harsh penalties of the 1980s drug panic, the use of commutations rather than pardons sends a weaker message, that “the crime was still a crime under the law, but you don’t have to serve time,” rather than “this law is wrong and your sentence under it is wrong.” It’s a minor point, but it matters in terms of handing the torch of clemency to the next presidency.

The return of clemency won’t solve America’s mass incarceration problem. But thanks to Obama’s prodigious deployment of pardons and commutations, it at least shows that the government is mindful of its past mistakes.