Under President Obama, Mercy is Scarce For Those Seeking Clemency

Earlier this year, a series by investigative outlet ProPublica found that whites are four times more likely than minorities to receive a presidential pardon, and that the rates over the past few presidencies for both pardons and sentence commutations are jarringly low. The coverage prompted the White House to announce that it would reopen the commutation application of one particular individual, Clarence Aaron, whose story of his nominal role in a cocaine deal that earned him a triple life sentence was highlighted by ProPublica.

With harsh mandatory minimum sentences for drug crimes, and a continuing disparity between crack and cocaine sentences, there are countless individuals like Aaron who are serving exorbitant time for nonviolent drug offenses, or who, even after their sentence ends, have been haunted by an early criminal record as they attempt to find employment, adopt children and regain their right to vote.

Now, another installment in this series is highlighting the particularly abysmal clemency record of President Obama, who has granted fewer pardons and commutations than any president in modern history. President Obama granted just 1 in 50 applicants a pardon, compared to 1 in 3 by this point in President Reagan’s first term, and 1 in 8 under President Clinton. When it comes to commutation – the early release of an individual still serving their sentence – the numbers are equally stark. President Reagan and Clinton granted commutations to 1 in every 100 people, whereas President Obama has granted a commutation to 1 in every 5,000.

Clemency is an essential part of our federal criminal justice system. When the founders incorporated the pardon power into the U.S. Constitution, they tasked the president with what a 1925 Supreme Court case described as affording “relief from undue harshness or evident mistake in the operation or enforcement of the criminal law.”

The change in clemency rates is arguably not because there are less deserving applicants, but because of a change in attitude or approach. Administration officials who spoke to ProPublica anonymously suggested that the Office of the Pardon Attorney, part of the Department of Justice, is simply recommending less clemency. They say that in President Obama’s first two years, he took almost every recommendation he was given by Pardon Attorney Ronald Rodgers. There are now pending a dozen positive recommendations and hundreds of negative recommendations.

In a strikingly forthright piece for the American Constitution Society’s ACSblog, former Office of the Pardon Attorney staff lawyer Samuel Morrison explains that this change has come out of a shift in attitude on the part of prosecutors from one of rehabilitation to one of retribution. The Department of Justice, charged with prosecutions, is institutionally inclined to want to preserve those prosecutions. This is an inherent conflict of interest that prominent figures including former White House Counsel Greg Craig have identified as cause for the creation of an independent office outside of the DOJ to assess pardon applications. As Morrison describes the process:

Having served as a staff attorney in the pardon office for more than a decade, I can say with some confidence that the office does not view its role as a neutral arbiter. Instead, it exploits the asymmetry of information to protect the Department’s institutional prerogatives, churning out a steady stream of almost uniformly negative advice, regardless of the merits of any particular case. In effect, this amounts to little more than an effort to restrain (rather than inform) the President’s exercise of discretion. The implicit message is clear: you will either do as we suggest, Mr. President, or you’re on your own.

It is a singularly efficient system. Generally speaking, the President feels compelled to adhere to the Department’s advice, even while privately chaffing at the bit. […]

Historically, the pardon advisory function has been housed in the Department entirely as a matter of administrative convenience … Whatever utility this arrangement once had, the structural deficiencies in the existing advisory system have rendered it dysfunctional.

There is, of course, also a political hesitation on the part of the president to use his discretionary power in a way that could be perceived as improperly influenced, which is all the more reason why the system for uniform recommendations must be reformed. With the U.S. holding the title of the world’s highest incarceration rate, the last thing our executive should be doing is granting increasingly less mercy.