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Executive Clemency in the United States

Summary and Keywords

Executive clemency has a rich history in the United States, both as an agent of justice and as a tool of politics. A presidential power to pardon was included in Article II of the Constitution, and all but one of the state constitutions provides for a clemency mechanism. States have established a variety of ways to manage and sometimes limit a governor’s exercise of the constitutional pardoning power, but the president’s power has remained unlimited by law. Until quite recently, clemency played a fully operational part in both federal and state justice systems, and the pardoning power was used regularly and generously to temper the harsh results of a criminal prosecution. Presidents also used their power to calm and unify the country after a period of strife, and to further policy goals when legislative solutions fell short.

But in modern times unruly clemency’s justice-enhancing role has been severely diminished, initially because reforms in the legal system made it less necessary, but later because of theoretical and practical objections to its regular use. A reluctance on the part of elected officials to take political risks, as well as clemency-related controversies, have further eroded clemency’s legitimacy. As a result, in most U.S. jurisdictions clemency now plays a limited role, and the public regards its exercise with suspicion. There are only about a dozen states in which clemency operates as an integral part of the justice system, in large part because its exercise is protected from political pressures by constitutional design. At the same time, the need for an effective clemency mechanism has never been greater, particularly in the federal system, because of lengthy mandatory prison sentences and the lifelong collateral civil consequences of conviction. It appears unlikely that an unregulated and unrestrained executive power will ever be restored to its former justice-enhancing role, so that those concerned about fairness and proportionality in criminal punishments must engage in the more demanding work of democratic reform.

Keywords: clemency, executive clemency, pardon, criminal law, collateral consequences, restoration of rights, president, commutation, sentence, conviction

A Note on Terminology

The term “clemency” is a broad one and covers any discretionary executive action that reduces or remits all or some of the actual or potential punishment. In this way, clemency ensures that the person on whom it is bestowed will not suffer all the punitive consequences the law would otherwise inflict for the crime committed. These consequences may be imposed directly by a court’s judgment or they may be imposed indirectly by law or administrative rule based upon conviction. While in some societies judges may exercise a clemency power (and they did so in England as late as the 18th century) (Hay, 1975, p. 44), in the United States clemency has been an executive prerogative since colonial times (see, e.g., Kobil, 1991; see generally, Duker, 1977; Jensen, 1922).

The term “clemency” is frequently used interchangeably with “pardon,” the term used to describe the president’s dispensing power in Article II, Section 2, of the U.S. Constitution, as well as the analogous executive power in most state constitutions. Thus, it is most correct to speak of a chief executive’s use of their pardon power.

Accordingly, this discussion uses the term “pardon” to describe both the prerogative power of executive clemency and a specific type of clemency grant—a pardon to restore rights and status lost or limited as a result of conviction. This sort of pardon usually signals forgiveness and is almost always granted after conviction and sentencing in recognition of rehabilitation. Pardons may also be granted to cut short or preempt prosecution, and such preemptive pardons usually take the form of classwide self-executing grants of amnesty. Less often in modern times, pardons are granted for innocence.

In many states, executive clemency in the form of full pardon is the preferred way of mitigating or avoiding the so-called collateral consequences of conviction, including both legal restrictions and disqualifications, and social stigma. In the federal system, pardon is the exclusive way. In some states, full pardon may also be grounds for judicial expungement of the record of conviction. (Expungement itself is not a term that is defined consistently from jurisdiction to jurisdiction and may range from limited sealing to complete destruction of the record.) This type of clemency is now the most frequently granted in the United States.

Other more limited forms of clemency are commutation of sentence, reprieve, and remission of fine. A commutation reduces the court-imposed prison sentence, usually to time served; a reprieve postpones punishment; and remission relieves a court-imposed financial obligation such as a fine or restitution.

Historical Background—What Is Executive Clemency?

For as long as people have been thinking about punishment, they have been thinking about ways to limit it through acts of mercy or pardon. A 1939 federal study of prison release mechanisms described pardon as the “patriarch” of dispensing authorities, which “reaches back to those early beginnings of human history when the father of the family or of the clan exercised the power to forgive as part of his power to punish” (U.S. Department of Justice, 1939a, p. 3; Moore, 1989, pp. 15–22). The frightening punishments listed in the Code of Hammurabi were limited by the principle of lex talionis, and the Old Testament’s vengeful God was also famously merciful (Larkin, 2016). The Romans had “a sophisticated and frequently used system of pardons,” understanding that “the power to pardon is every bit as great a power as the power to punish” (Moore, 1989, pp. 16–17). As systems of public criminal law developed in Europe, pardoning played an important role in giving effect to distinctions absent or underdeveloped in the law, such as those between intentional and accidental harms, excuses such as incapacity and mistake, and justifications such as self-defense. Pardoning is a practice common to all cultures and all periods of history. It is said that all the constitutions in the world except for China’s provide for a pardoning power (though it is not always lodged in the executive) (Sebba, 1977, p. 83).

When Alexander Hamilton wrote his famous justification for giving the president the power to pardon, most colonial charters already granted the executive a dispensing power to ease the harsh burdens imposed by the justice system, just as the “royal prerogative of mercy” in England had for centuries “moderated the barbarity of the criminal law in the interests of humanity” (Hay, 1975, footnote 1). The Federal Constitution of 1787 threw out almost all of the royal prerogative but kept the one aspect of it that most closely fit John Locke’s definition: the “power of doing public good without a rule” (Harrison, 2001, p. 147).

But executive discretion to break rules through clemency was troubling to those attempting to establish the rule of law. The philosophers of the Enlightenment had little use for the unruly prerogative, regarding pardon at best as an unprincipled and unwelcome intrusion into the operation of democratic institutions, and at worst as highly corruptible and deeply unfair. The utilitarian Cesare Beccaria (1738–1794) famously argued that “[c]lemency is a virtue which belongs to the legislator, and not to the executor of the laws, a virtue which ought to shine in the code, and not in private judgment” (Beccaria, 1953, pp. 158–159). In other words, the legal system itself must be humane and merciful and must not rely on an unaccountable power to make exceptions to it.

Executive clemency has become an essentially vestigial authority in most European countries as legal systems have evolved. Pardon in France did not survive the Revolution, and although the royal pardon continues to exist in the British tradition, nowadays statutory pardons issued through an Act of Parliament are more common. But pardon survived and for many years thrived in the United States. Indeed, many would argue that the American legal system still relies on pardon to deliver fair and proportional results. This is particularly true in jurisdictions that still have a death penalty and in the federal justice system where cost poses no bar to draconian prison terms. (From this point onward, the discussion deals exclusively with executive clemency in the United States.)

Executive Clemency in the United States—Theory and Practice

In the run-up to the presentation of the Constitution to the ratifying conventions in the states, Hamilton justified giving the president exclusive and unfettered control of the “benign prerogative of pardoning” in terms of two great public purposes: to temper the law’s harsh results and to intercede in timely fashion to defuse a politically inflammatory situation. As to the first of these purposes, Hamilton observed that “without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.” (Hamilton, 1961, p. 447). Hay (1975) notes that pardon “moderated the barbarity of the criminal law in the interests of humanity. It was erratic and capricious, but a useful palliative until Parliament reformed the law in the nineteenth century” (p. 44). With respect to the second, Hamilton proposed that “in seasons of insurrection or rebellion, there are often critical moments, when a well-timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth” (1961, p. 447). In a government otherwise of limited powers, there was to be no check on the president’s prerogative but public opinion—what James Iredell (1993, pp. 382–383) described as the president’s fear of “the damnation of his fame to all future ages.”1 And so, true to Hamilton’s vision, the president’s power has remained “unfettered,” despite periodic controversies and even one recent scandal (Love, 2002, p. 185).

Philosophical and practical objections to pardon did not get much air time during the debates over the federal Constitution—though to be fair neither did arguments in support of pardon beyond Hamilton’s elegant justifications in Federalist 74. That said, an executive dispensing power was included in the constitution of all but one of the original states (in Connecticut, the legislature retained control of clemency except for the governor’s constitutional authority to grant reprieves), and an executive pardoning power has been included in the constitution of every newly admitted state, with most setting limits on the manner of its exercise that have evolved over time (Jensen, 1922; see also Collateral Consequences Resource Center, n.d.; National Governors Association, 1988).

From the earliest days of our history, presidents and governors used the pardon power both regularly and generously to benefit ordinary people for whom the results of a criminal prosecution were considered unduly harsh or unfair. This kind of low-level pardoning took place largely out of the public eye but with some regularity in what was then a primitive justice system characterized by harsh punishments, few recognized defenses, and no possibility of appeal (Love, 2010, pp. 1169, 1172–1193). Theoretically and practically, from the beginning clemency provided “the ‘fail safe’ in our criminal justice system” (Herrera v. Collins, 1993).

Presidents spent what seems today like a great deal of their time in office considering pardon requests, which frequently came from judges forced to apply laws they regarded as excessively harsh, and sometimes from prosecutors motivated by second thoughts (Lardner & Love, 2004). After the Civil War, the Attorney General became the gatekeeper and day-to-day manager of the pardon power, assisted by an official known as the pardon attorney. Presidents granted clemency to a high percentage of those who asked for it, forestalling or halting prosecutions, cutting short prison sentences or remitting them entirely, and forgiving fines and forfeitures. Federal prosecutors played a central role as first-line staff for pardon cases and evidently recommended favorably a good deal of the time (see Humbert, 1941; Love, 2010, pp. 1181–1182). After the introduction of indeterminate sentencing and an administrative system of early release through parole in the early 20th century, pardon was granted more frequently to restore citizenship rights and signal an offender’s rehabilitation (U.S. Department of Justice, Office of the Pardon Attorney, 2017).

Clemency in the states proceeded along similar lines, and most state constitutions contained a pardoning power administered through a variety of different administrative models, including independent boards that included no role for the governor, boards that shared power with the governor, and gubernatorial power unrestricted by administrative limits (Love, 2012, p. 730, 754).

As to Hamilton’s second public purpose of pardoning, examples of pardon used as a tool of statecraft abound in American history, often linked to wartime exigency or postwar amnesties. George Washington granted his first pardons in 1794 to Pennsylvania farmers who had challenged the federal government’s power to tax whiskey (Crouch, 2009, pp. 55–56). Sixty years later, Abraham Lincoln used the pardon power to bring a measured end to another dangerous internal rebellion, this time involving the “largest massacre of whites by Indians in American history” (Donald, 1995, p. 392). Presidents since Thomas Jefferson have issued postwar pardons to deserters and draft evaders (Love, 2010, p. 1173, footnote 16; see also Sherman, 1974, p. 24).2 Presidents have issued pardons to signal their disagreement with a law, including Thomas Jefferson’s pardons of those convicted under the Alien and Sedition Acts, Woodrow Wilson’s pardon of those convicted for violating the liquor laws, and Bill Clinton’s pardon of those prosecuted under the Independent Counsel Act (Love, 2010, p. 1174, footnote 17). Pardon has also figured in such politically divisive issues as labor organizing, race relations, polygamy, and Puerto Rican independence (Crouch, 2009, pp. 56–60).3 Other examples of pardons granted in whole or in part for political purposes are President Reagan’s commutation of a foreign spy’s life sentence in contemplation of a “swap” for several of our nationals imprisoned abroad (Love, 2000, p. 1483, 1504), and President Obama’s clemency grants to Cuban and Iranian nationals for the same purpose (Gerstein, 2017).

There are many occasions throughout our history when the pardon power was used for purposes of calming and unifying the country after a period of strife, notably the amnesties that have followed almost every one of our wars. As one pardon scholar has observed, “pardons are a better signal than an armistice agreement to show that a war is truly over and that peace is restored” (Moore, 1989, p. 51). President Gerald Ford’s pardon of Richard Nixon, which cost Ford his own political future, is properly regarded as a legitimate measure to restore what Hamilton called “the tranquility of the commonwealth.” Pardons have also been issued in furtherance of a president’s policy goals, most recently President Barack Obama’s drug sentence commutations in 2014–2017 (Love, 2017). To conclude that politics remains relevant to pardoning in the federal system, one need look no further than President Donald Trump’s August 2017 pardon of former Arizona sheriff Joe Arpaio (see, e.g., Fallows, 2017).

It is these occasional well-publicized political grants that give credence to myths about pardoning and confirm the public’s worst suspicions about what lies behind clemency grants. Even sixty years ago when pardoning was frequent and routine, the only systematic study of the federal pardon power noted that the “persistence of erroneous ideas, the lack of exact information, and the absence of publicity concerning the acts of the pardoning authority envelop the power in a veil of mystery” (Humbert, 1941, p. 6). Today a pardon is thought of as “a lightning strike, like a winning lottery ticket, that almost never will be deployed except for some extremely unusual or distinctive case” (Gabriel J. Chin, quoted in Crawford & Konig, 2005). Pardons are also perceived as a way elected officials can curry favor with the rich and powerful, invariably issued at the end of their terms when they can no longer be held accountable by the electorate. From time to time, in many jurisdictions, these perceptions are confirmed.

Effect of a Pardon

The federal courts have wrestled with how to interpret acts of clemency and have come up with a body of law that is filled with inconsistencies, if not contradictions, both about the pardon power generally and about particular applications of it. Most significantly, pardon has been variously characterized as a private act of grace that, like a gift, must be accepted (U.S. v. Wilson, 1833; see also Burdick v. U.S., 1915), and as an official tool for the public good that may be foisted on its beneficiary (Biddle v. Perovich, 1927). In Biddle v. Perovich, upholding the President’s power to commute a death sentence to life in prison, Justice Oliver Wendell Holmes wrote that

[a] pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted, it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed. Just as the original punishment would be imposed without regard to the prisoner’s consent and in the teeth of his will, whether he liked it or not, the public welfare, not his consent, determines what shall be done. (p. 486)

Once past the acceptance issue, it should be a relatively simple matter to ascertain the effect of a grant of clemency, at least where its object is to dispense with a punishment imposed by a court involving a prison term, fine, or restitution. Yet the question of whether a president could place conditions on a grant of clemency was unsettled as recently as the 1970s, when the Supreme Court upheld President Dwight Eisenhower’s commutation of a death sentence to life in prison (Schick v. Reed, 1974).

The meaning and effect of a full pardon is another matter. Shortly after the Civil War, in Ex Parte Garland, the Supreme Court articulated an expansive notion of pardon as restoring the recipient to “all his rights, civil and political, including the capacity or qualification to hold office, as fully in every respect as though he had never committed the offence” (Ex parte Garland, 1866, p. 339). However, recent jurisprudence has been more conservative. For example, in 1997 the Court of Appeals for the District of Columbia held that President George H.W. Bush’s pardon of Elliott Abrams for his conduct in the Iran-Contra affair could not spare Abrams from lawyer discipline for lying to Congress. The court, sitting en banc, held that while the pardon might have eliminated the legal consequences of Abrams’s conviction, “it could not and did not require the court to close its eyes to the fact that Abrams did what he did” (In re Elliott Abrams, 1997). This distinction between the conviction and the conduct underlying the conviction is reflected in scholarship and law reform proposals for dealing with collateral consequences (Chin, 2003, p. 1685; American Bar Association, 2004; National Conference of Commissioners on Uniform State Laws, 2010). At the same time, in many states a grant of pardon results in judicial expungement of the record of conviction, and the recipient is authorized by law to deny ever having been convicted (Collateral Consequences Resource Center, n.d.).

State courts have sometimes been asked to consider whether pardons granted without observing procedural restrictions are valid (see, e.g., In re Hooker, 2012, on how petitioner’s failure to observe procedural requirements did not invalidate governor’s grant), or whether a specific pardon has a specific effect (see, e.g., Hentz v. Mississippi, 2014, on how a pardon did not expunge conviction). Also, in one significant state case, the Supreme Court of Michigan held that Governor Jennifer Granholm was powerless to retract a commutation that she had granted and publicly announced (Makowski v. Governor, 2014).

Clemency Before 1980

Until about 1980, pardoning was a regular part of the housekeeping business of the presidency, and an efficient business it was. A handful of lawyers in the Office of the Pardon Attorney in the Justice Department produced hundreds of recommendations every year, sending them to the White House in large batches, usually accompanied by brief case reports of no more than a single page. The key considerations for favorable action were the favorable views of the U.S. Attorney and sentencing judge, and of course the blessing of the Attorney General. Federal prosecutors and judges applied harsh laws on the evident assumption that they could ameliorate them through recommending clemency (Love, 2010, p. 1183, footnote 52; see also Ruckman, 1997, p. 251). Reporting to Congress in 1887, the Justice Department’s pardon attorney described his obligation, in advising on clemency cases, “to accord to the convict all that he may be fairly entitled to have said in his favor” (Love, 2010, p. 1179, quoting from a 1887 report by Clerk of Pardons Alexander Boteler to Congress on the general handling of pardon applications).

The sympathy of prosecutors and judges toward clemency was replicated in the states, where governors used their pardon power regularly and generously, as an operational part of the criminal justice system (Barnett, 1927, p. 490, 505). For example, the chair of the Colorado Board of Pardons reported in 1911 that “I have read dozens of communications from judges saying their sentences in specific cases were too severe. . . . District attorneys time and again tell us that particular sentences are excessive and thus confess that a well-intended prosecution was transformed into an unintended persecution.”

The introduction of an administrative early release system in the federal system in 1910 began the process whereby the President’s pardon power would be used less frequently to free prisoners and more commonly to restore rights to those who had served their sentences and spent some time in the free community. Other sentencing alternatives introduced around this time similarly reduced the demands on pardon. Pardon’s performance of a paroling function in the 19th century federal justice system, and its gradual displacement by a statutory prison release procedure and sentencing alternatives in the early 20th century, was mirrored in most of the states (U.S. Department of Justice, 1939b, pp. 52–53).

But what pardon lost by way of prison custom it more than made up in applications to restore rights and status. Indeed, statistics on federal pardoning from 1890 to 1980 show that hundreds of grants of full pardon were issued every year. Franklin Roosevelt granted more than 3,000 postsentence pardons during his thirteen years in office, Harry Truman granted more than 1,900 pardons (including 141 “to avert deportation”), and Dwight Eisenhower granted 1,100 pardons. Presidents from John Kennedy to Jimmy Carter issued an average of 150 pardons per year (U.S. Department of Justice, Office of the Pardon Attorney, 2017). Pardoning took place at regular intervals over the course of each president’s term, with no slow starts and no bunching of grants at the end (Ruckman, 2004, pp. 15–27).

There is much to be admired in the preceding account of the operation of clemency pardoning in the first two centuries of our history. To be sure, there were occasional controversial grants, including grants made out of presidential pique. But there were also occasions in which the power was used in the larger political sense that Hamilton envisioned “to restore the tranquility of the commonwealth.” The occasional pardon-related scandal in the states did little to move the needle on popular confidence in pardoning, which was never high enough to be shaken (Humphrey, 1981).4 For the most part, pardoning operated productively out of the public eye, in the federal system as well as in the states, contributing to reforms in the law, resolving political problems, and delivering justice to ordinary individuals. All that came to an end with the dramatic changes in the political climate that occurred in the mid-1980s, changes that rejected rehabilitation in favor of retribution as the primary goal of the justice system and that brought about a sharp increase in the demand for clemency just as the door was shutting on its exercise (Freed & Chanenson, 2001, p. 119; Stith & Cabranes, 1998).

Clemency After 1980

After 1980, presidential pardoning went into a sharp decline, as did pardoning in most of the states. The two most significant reasons for this were the ascendant retributivist theory of “just deserts” and the politics of the “war on crime,” an unfortunate coincidence that made clemency seem at the same time both improper and dangerous. The new retributivists, like the Enlightenment philosophers, believed that the “essentially lawless” exercise of mercy constituted a “threat to society dedicated to the rule of law” (Sarat, 2005, p. 69). “Truth in sentencing” was the watchword for reformers in the federal system, and states were persuaded by financial incentives to follow the federal example (National Research Council, 2014, pp. 70–103). The architects of the 1984 Federal Sentencing Reform Act stripped all discretionary early release mechanisms out of the law, so that the sentence imposed by the court was to be the sentence served by the defendant, with only a modest discount for good time (Stith & Cabranes, 1998). The hostility toward mercy also resulted in the repeal of the set-aside remedy of the Youth Corrections Act, which had been enacted to give youthful offenders a second chance (Love, 2003, pp. 1716–1717). There was no place for executive clemency in such a system. To the extent clemency survived in state justice systems, it was frequently as an adjunct to a paroling authority.

Contemporaneous with the ascendency of retributivism in punishment theory and practice, crime control became a central issue in American politics (Vorenberg, 1972). It became conventional wisdom that appearing “soft on crime” could only get an elected official into trouble, and the Willie Horton episode during the 1988 presidential campaign confirmed that pardoning could ruin a political career (Schwartzapfel & Keller, 2015; see generally, Anderson, 1995). As pardoning became less frequent, the inherent mystery of the pardon process reinforced in the public’s mind the popular myth that pardon was available only to those with money and connections, a way for a president or governor to reward intimates at the end of his term. This would become a self-fulfilling prophecy at the end of Bill Clinton’s term, when he indulged in an orgy of last-minute pardoning that many viewed as “a final unencumbered opportunity to reward friends, bless strangers, and settle old scores.” (Love, 2010, p. 1198). Many regard Clinton’s pardon of fugitive financier Marc Rich as a more depressing influence on subsequent presidents than even the Willie Horton episode.

A third negative influence on pardoning, at least in the federal system, was the hostility of prosecutors. At the beginning of the Reagan Administration, the Attorney General removed himself from personal responsibility for making clemency recommendations, which allowed prosecutors to control clemency recommendations. This change in the administration of the president’s power sealed pardon’s fate. No longer did the Justice Department feel its old obligation “to accord to the convict all that he may be fairly entitled to have said in his favor” (Love, 2010, p. 1179, quoting from a 1887 report by Clerk of Pardons Alexander Boteler to Congress on the general handling of pardon applications). Indeed, it no longer even regarded its principal obligation to the president. Instead, it treated every clemency petition as a potential challenge to the law enforcement policies underlying the conviction. Once pardon policy became part and parcel of a tough-on-crime agenda, pardon practice served primarily to ratify the results achieved by prosecutors, not to provide any real possibility of revising them (Love, 2010, p. 1194).

With very little independent interest at the White House in the routine work of pardoning, it was inevitable that the number and frequency of clemency grants would steadily decline through the final years of the 20th century and into the 21st. Pardoning became irregular and increasingly arbitrary, with grant rates in the single digits and processing times extending for years. At the same time, demand for pardon steadily increased, as federal sentences remained draconian and the collateral consequences of conviction became more numerous and more severe (Chin, 2012, p. 1789, 1792). Given the political climate and the strong aversion to pardon by those responsible for administering the power, it should have come as no surprise to philosophers like Kathleen Dean Moore that the abolition of federal parole did not lead to “an expanded and crucial role for pardons” (Moore, 1989, p. 86). But in fact, 1984 seems to marks precisely the moment when the clock stopped on ordinary presidential pardoning.

In his final years in office, President Obama used the pardon power to cut short hundreds of long federal drug sentences, but he largely neglected the cases of people who had completed their sentences and were seeking relief from their conviction’s lingering civil consequences and social stigma (Love, 2017). The result of this neglect was that, at the beginning of the Trump Administration, thousands of applications for pardon and commutation were pending in the Justice Department with no sign that any would soon be granted.

The Future of Clemency

By the end of the 20th century, clemency had become largely irrelevant as a tool of justice in three quarters of the states and in the federal system. In those few states where clemency continued to have an operational role, it was to supplement a paroling authority. In some states, the governor’s pardon power had become essentially moribund (Collateral Consequences Resource Center, n.d.). Most criminal justice practitioners were unaware of the justice-enhancing role pardon had once played, and even those who were believed that the time had come for “pardons to silently to fade away—like collar buttons, their usefulness at an end” (Moore, 1989, p. 84). Members of the public saw clemency only as a source of political favors and scandal.

But history teaches that the demand for clemency increases when the legal system lacks other mechanisms for delivering individualized justice, recognizing changed circumstances, and correcting errors and inequities. The increasing rigidity and harshness of the justice system in the late 20th century, and the repeal of mitigating mechanisms like parole, revived interest in a more operational role for executive clemency among those favoring a more forgiving approach to criminal justice. New theoretical justifications for clemency were proposed, either in a justice-based retributivism (Moore, 1989) or a mercy-based public duty (Love, 2000, p. 1483; Murphy, 1988).

Among supporters of a more generous use of clemency to substitute for the loss of statutory prison release mechanisms, concern was directed at the unreliable and unproductive process for administration of the power, primarily in the federal system. The excessive pardoning at the end of Clinton’s term drew attention to the causal role of an unresponsive and even hostile Justice Department pardon process (Love, 2016, p. 89). In his presidential memoir, George W. Bush expressed frustration and disgust with the way the pardon power was administered (Bush, 2010, p. 104).5 President Obama’s clemency initiative, which was directed at federal prisoners serving lengthy mandatory drug sentences, was also marred by poor management in Justice (Keller, 2015). Most critics of the Obama initiative thought it had not gone far enough, with critics reserving their harshest words for the process used to identify cases appropriate for relief (e.g., Larkin, 2016, pp. 832, 842–844; Barkow & Osler, 2015). Some had argued from the very beginning that the regular federal clemency process was incapable of dealing with thousands of potentially eligible cases. They therefore urged the sort of targeted and committed devotion of resources that made President Ford’s Vietnam commission so successful in disposing of thousands of cases in little more than a year’s time.

But one critic of the clemency initiative, while conceding the unfairness of federal drug sentences, argued that clemency was ill suited to deal with such a pervasive problem in the legal system, and urged greater use of available statutory early release authorities (Love, 2015). Essentially the same arguments against trying to use clemency as a substitute for law reform had been aired at the time of the final Clinton pardons by two legendary scholars of sentencing law:

But what to do about areas of federal sentencing policy that need attention and adjustment? Despite the extraordinary potential for arbitrariness, some urge significant increases in individual grants of clemency. Others urge that Congress reconsider its severe limitation of administrative mitigation devices such as parole; its tacit prohibitions against individualized sentencing (e.g., through mandatory minimum penalty laws); and its requirement, of disproportionately high penalty levels for certain offenses without regard to circumstances of the crime or the offender.

Between these two choices, we favor the latter, more demanding road toward democratic reform. Wherever a rule can be structured to guide the discretion of judges or administrative agencies in determining—with reasons—whether to mitigate the sentences of similarly situated offenders, we think such a system should ordinarily be accorded priority over one that relies exclusively upon the unstructured, unexplained discretion of a president to grant or deny individual pardons or commutations. While presidents may wish to use systematic pardons or exemplary commutations to prompt debate or to motivate a recalcitrant Congress, they ought not invoke the pardon power to convert the Presidency into a legislature of one. As difficult as it may be to accomplish, completing the task of legislative sentencing reform is preferable to excessive—and often misunderstood—reliance on case-by-case pardons.

(Freed & Chanenson, 2001, p. 119, 124)

The “more demanding road toward democratic law reform” is the one that surely would have commended itself to the philosophers of the Enlightenment, if not to their intellectual heirs in modern times. Surely, even Hamilton would not have approved of “invok[ing] the pardon power to convert the Presidency into a legislature of one.” While it does not at present appear that clemency will play an operational role in shortening federal prison sentences, perhaps the experience of the Obama initiative will have opened the eyes of federal legislators to the need for mechanisms in federal law that will do the work of clemency.

With its focus on use of clemency to reduce prison sentences, and almost exclusively on federal clemency, the other important function of clemency has been largely neglected by scholars and the general public. Pardon to restore rights and status after completion of sentence remains an important part of the federal clemency caseload. There has been only one contemporary study of how executive clemency operates in any of the handful of states where it continues to thrive, and that was by a politician (Denn, 2012). For every governor who decides to make pardoning part of his job, there are two who issue no pardons at all (Barkow, 2009).

To be fair, most states do not have the same problem of long mandatory prison sentences that exists in the federal system, and most still have alternative statutory release mechanisms. In addition, many of the states that do not have functioning clemency systems are experimenting with alternative ways of dealing with the adverse effects of a criminal record, through judicial certificates or expungement, so there is less need for clemency to restore rights and status following conviction. Indeed, ending a dependence on clemency, at least for the routine functioning of the justice system, is precisely what philosophers and law reformers have argued for since the 18th century. The expectation that clemency would no longer be needed in an enlightened legal system is what animates the vision of Freed and Chanenson that there should be less clemency and more law reform. It is inevitable that some in need may have to wait for the delivery of justice and others may never get it at all. But, the theory goes, better that some should wait than that all should be dependent on the systemic unfairness of an arbitrary clemency lottery.

To end this discussion of executive clemency on a positive note, it is worth emphasizing that there are a dozen states in which a constitutional clemency power has continued to operate as an integral part of the justice system. Clemency, usually in the form of a full pardon after service of sentence, is available in these states to ordinary people with garden-variety convictions who can meet the basic eligibility requirements and demonstrate their worthiness for forgiveness. In these states, clemency has remained a productive and respectable relief mechanism, partly because of the way the constitutional power is structured and administered, and partly because of a history and culture that supports its use. In about half of these states, the constitutional power is administered by an independent board of appointed officials, and in the other half, power is shared between elected and appointed officials.

It might be argued that in these jurisdictions where unruly pardon thrives, it has been tamed within what are essentially administrative law systems (Restoration of Rights Project, n.d.).6 It should come as no surprise that the states that presently issue the most pardons without regard to the identity of the elected governor are almost all ones in which the pardon process is regulated by law and reasonably transparent, and in which the final pardoning authority has structural protection from the political process by constitutional design (Love, Roberts, & Klingele, 2016).

Conclusion

Executive clemency has all but ceased to play an operational role in the United States, for both theoretical and practical reasons. Recent instances of irregular and politically motivated pardoning have further eroded any legitimacy clemency might once have enjoyed, and it is generally regarded by the public with deep suspicion. While there are a dozen states in which clemency continues to play an integral role in restoring rights and status after conviction, in most of those states the pardon power is subject to procedures and standards that render it akin to administrative law regimes. In most states, pardon is fully discretionary and unlimited, and is used only on an occasional basis to prompt debate or further policies favored by the executive. At the same time, the need for an effective clemency mechanism to temper harsh criminal laws has never been greater, particularly in the federal system, where lengthy mandatory prison sentences and lifelong collateral consequences have kept pardon alive, if only barely so. Because it appears unlikely that this unregulated and unaccountable executive power will ever be restored to its former justice-enhancing role, those concerned about fairness and proportionality in criminal punishments have been remitted to the more demanding work of democratic reform.

Discussion of the Literature

There has been little attention in contemporary scholarly literature to the role executive clemency ought to play in the modern justice system, which suggests that most scholars do not take clemency seriously as a part of the criminal justice system. The only recent philosophical work is philosopher Kathleen Dean Moore’s masterful 1989 study in which she articulated a retributivist justification for clemency. Scholarship on corrections and sentencing rarely mentions clemency. Much of the academic writing about clemency deals with the history and administration of the presidential pardon power (e.g., Jeffrey Crouch’s The Presidential Pardon Power (2009)), and there is very little attention paid to the role of clemency in contemporary state systems. Margaret Love’s research into how state pardon systems operate has now been published as the Restoration of Rights Project, and there are a handful of other online practice resources on state clemency systems.

The criminal code of every country partakes so much of necessary severity that without easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.

—Alexander Hamilton (The Federalist No. 74)

Further Reading

Crouch, J. P. (2009). The presidential pardon power. Lawrence: University of Kansas Press.Find this resource:

    Kobil, D. (1991). The quality of mercy strained: Wresting the pardoning power from the king. Texas Law Review, 69, 569.Find this resource:

      Love, M. C. (2000). Of pardons, politics and collar buttons: Reflections on the president’s duty to be merciful. Fordham Urban Law Journal, 27, 1483.Find this resource:

        Love, M. C. (2010). The twilight of the pardon power. Journal of Criminal Law and Criminology, 100, 1169.Find this resource:

          Moore, K. D. (1989). Pardons, justice, mercy and the public interest. New York: Oxford University Press.Find this resource:

            Morrison, S. T. (2005). The politics of grace: On the moral justification of executive clemency. Buffalo Criminal Law Review, 9(1), 1–138.Find this resource:

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                                                                                                                                            Notes:

                                                                                                                                            (1.) The political checks on the pardon power have collectively been called “limited and clumsy” (Tribe, 2000, § 4–10, at 721). Even sixty years ago when pardoning was frequent and routine, the only systematic study of the federal pardon power noted the “persistence of erroneous ideas, the lack of exact information, and the absence of publicity concerning the acts of the pardoning authority envelop the power in a veil of mystery” (Humbert, 1941, p. 6).

                                                                                                                                            (2.) Love, note 16, lists amnesties from Madison during the War of 1812 (to persuade deserters from the army to return to service) to the Vietnam amnesties of Presidents Ford and Carter.

                                                                                                                                            (3.) This discusses clemency grants to Eugene Debs, Jimmy Hoffa, Oscar Collazo, Marcus Garvey, and FALN Puerto Rican nationalists.

                                                                                                                                            (4.) Even sixty years ago when pardoning was frequent and routine, the only systematic study of the federal pardon power was Humbert’s Pardoning power of the president (1941) (noting the “persistence of erroneous ideas, the lack of exact information, and the absence of publicity concerning the acts of the pardoning authority envelop the power in a veil of mystery”).

                                                                                                                                            (5.) “One of the biggest surprises of my presidency was the flood of pardon requests at the end. . . . At first, I was frustrated. Then I was disgusted. I came to see a massive injustice in the system. If you had connections to the president, you could insert your case into the last-minute frenzy. Otherwise, you had to wait for the Justice Department to conduct a review and make a recommendation.”

                                                                                                                                            (6.) The operation of clemency in these states is discussed in greater detail in the state “profiles” of relief mechanisms published as part of the Restoration of Rights Project.