Clemency, controversy and criminal justice reform

Rob Baker, Ph.D., one of our regular community contributors, teaches political science at Wittenberg University.

On Sept. 8, 1974, a somber President Gerald R. Ford appeared before a beleaguered nation to announce he was granting “a full and complete pardon” to former president Nixon. Two years later, on his first day in office, President Jimmy Carter fulfilled a campaign promise by issuing a blanket pardon to all civilians who had evaded the Vietnam draft. Carter also famously reduced the sentence of Watergate burglar G. Gordon Liddy from 20 to 8 years.

High-profile examples like these of the president’s Constitutional clemency authority often generate controversy, but historically, presidents have wielded this power extensively with little fanfare. Recent presidents have used it much less frequently.

In his first term, for example, President Barack Obama granted fewer pardons than any of his predecessors since George Washington. According to legal scholar Paul Larkin Jr., the clemency authority is constitutionally articulated as an unchecked executive power, but it was the framers’ belief that presidents would exercise it with “scrupulousness and caution.”

Indeed, former President William Howard Taft, writing an opinion for the Supreme Court as chief justice, noted that “Our Constitution confers this discretion on the highest officer in the nation in confidence that he will not abuse it.” In essence, executive clemency has long-standing legal and philosophical support as a way for the state to grant mercy or correct injustices to help foster a humane criminal justice system.

With only 5 percent of the world’s population, but 25 percent of the world’s prisoners, America has become an incarceration nation spending a whopping $80 billion annually to keep over 2 million prisoners locked up; huge numbers of federal prisoners are incarcerated for nonviolent drug offenses.

As a result of the stunning revelations about our caste-creating criminal justice system in her book, “The New Jim Crow,” Michelle Alexander has helped raise national awareness about these issues, and has contributed to a growing bi-partisan interest in specific reforms. To this end, beginning in 2014 President Obama launched a major policy initiative designed to ensure a fairer criminal justice system.

As part of a multi-pronged approach that includes supporting the 2010 Fair Sentencing Act and working with the U.S. Sentencing Commission to reduce guidelines for nonviolent drug offenders, the president authorized the Justice Department’s Pardon Attorney to encourage federal inmates who meet certain conditions to apply for clemency. Only those candidates meeting the strict criteria are recommended to the president for consideration.

With his effort, Obama has reinvigorated the clemency authority that he initially rarely used; he even set a single-day record last Tuesday by granting 78 pardons and 153 commutations. In his words, “The power to grant pardons and commutations … embodies the basic belief in our democracy that people deserve a second chance after having made a mistake in their lives that led to a conviction under our laws.”

President George W. Bush vowed not to grant any clemency requests that hadn’t been officially recommended by the Justice Department. President Obama has scrupulously and cautiously followed suit in the name of justice for all Americans.