//  6/22/20  //  In-Depth Analysis

The protests we are seeing across the United States in the wake of George Floyd’s murder have led many of us to consider the imbalances in our nation’s criminal justice system. One such imbalance is how we apply the concept of restraint differently to punishment versus leniency.  The lack of restraints in the area of punishment are all too apparent, and the obstacles to imposing restraints are rehashed daily on cable news and in the editorial sections of newspapers.

By contrast, there has been surprisingly little discussion in the area of loosening restraints on the exercise of leniency. There is perhaps no better example to illustrate what I mean by the exercise of leniency than the recent history of presidential clemency power, more commonly known as the pardon power.  Below I summarize points I made in greater detail in my recent article, explaining how the pardon power fell into disuse, the impetus behind President Barack Obama’s Clemency Initiative, the obstacles his administration faced in implementing it, and the lessons advocates of criminal justice reform can take from this experiment. 


The Pardon Power

On paper, the president’s constitutional power to grant clemency appears nearly absolute. There are some grey areas that law professors and scholars continue to debate. But there is little doubt that presidents may forgive finesrestore some or all civil rights, and shorten, or even end, criminal sentences, with little to no input or second-guessing from anyone. 

Yet despite this broad, unchecked power, post-War presidents generally allowed the power to fall into a state of disuse and, sadly, disrepute. Presidents George H.W. Bush, Bill Clinton, and George W. Bush all used clemency sparingly and, when they did use it, controversially. The pardoning of well-connected VIPs, like Casper Weinberger and Marc Rich, immediately come to mind. In fact, George W. Bush was so shaken by blowback he received in even considering its use that he warned incoming President Obama on the day of his inauguration that he should quickly develop a clemency process and stick to it.

There are historical and political reasons for this.

The clemency power, once regularly used to commute sentences, was gradually replaced by federal parole as the go-to tool for shortening sentences. ‘Law-and-order’ became a successful wedge issue for the political right. And in 1988, four years after the abolition of federal parole, the George H.W. Bush campaign’s effective use of the notorious Willie Horton ad – detailing the gruesome crime committed by an incarcerated person with a weekend pass program from prison in Massachusetts -- against Michael Dukakis made clear that there would be political costs associated with being soft on crime.

As a result, the political consensus of the 80s and 90s all pointed in one direction: more punishment, less leniency. Presidents acted accordingly, allowing tools like the pardon power to atrophy in the overly bureaucratized hands of the Department of Justice (“DOJ”) and Office of the Pardon Attorney (“OPA”). All of this hung over the Obama administration when it announced that it would pursue the most expansive use of the clemency power in a generation.


Fair Sentencing Act

The Clemency Initiative began on January 30, 2014. In an address to the New York Bar Association, Deputy Attorney General, James Cole, explained that there were “low-level, non-violent drug offenders” in prison who would have received a substantially lower sentence had they been convicted for the same offense in 2014.  “This is not fair, and it harms our criminal justice system.” 

He was surely right.

The injustice he identified arose as a result of shortcomings of the Fair Sentencing Act of 2010. The Fair Sentencing Act did a great deal to make the federal criminal justice system fairer. It reduced sentencing disparities between crack and powder cocaine – the former being more likely to be used by African Americans and carrying a significantly higher penalty despite few pharmacological differences between the two substances – and it eliminated the mandatory minimum sentence for simple possession of crack.

However, it left scores of people incarcerated under the older stricter sentencing rules.

Efforts were made to fix this hole. But by 2011, the House of Representatives was under GOP control and they were unwilling to give President Obama a win. According to former White House Counsel Kathy Ruemmler, this prompted thinking within the administration as early as 2011 towards expanding the president’s use of the clemency power.


Restraints to Leniency

The problem that the Obama administration ran into is that, while the clemency power is quite simple and near absolute on paper, there are practical and philosophical considerations that restrain presidents.

First there is the need to keep the public safe. According to Neil Eggleston, Ruemmler’s successor as White House Counsel, President Obama “didn’t care” about the politics, but he did believe that a clemency recipient committing a “heinous crime” following release could stop the Clemency Initiative in its tracks. Additionally, Jim Cole knew that the petitioners who would benefit wouldn’t necessarily be the typical “Mother Theresa-type” of successful petitioners. These would be folks who were guilty but “got screwed.” As a result, President Obama personally took the step of giving each clemency petition an individualized look before granting or rejecting petitions, oftentimes sending additional questions to the White House Counsel’s Office to clarify issues or to dig deeper into a petitioner’s record, in order to limit the chances of recidivism.

Resources were also scarce. Petitioners and their representatives can no longer walk up to a president and get a yea or nay on their case. As Professor Mark Osler details, there are established processes and procedures involving the Bureau of Prisons, U.S. Attorneys, the OPA, and Deputy Attorney General, to name a few, for evaluating clemency petitions before they ever reach the president.

Cole believed that Congress would not tolerate the administration going outside of the institutions it was already funding, chiefly the DOJ and OPA. Ruemmler was also worried about overwhelming the system with clemency petitions, leading her and the White House to develop six factors that petitioners would have to meet that were designed with the conscious intent of limiting the number of eligible clemency recipients. Eggleston, too, refused to consider a clemency board proposed by some criminal justice advocates on account of a lack of funds and time, telling his predecessor Greg Craig – an advocate of such a board – that the time to consider that was at the start of Obama’s presidency, not the end.

Administration officials were also concerned about setting a precedent that could damage democratic norms. That's because the pardon power is, ultimately, an undemocratic tool, not subject to legislative or judicial review (in the latter case, the courts -- so far as I am aware -- have not struck down a properly invoked grant of clemency, though Justice O'Connor suggested that judicial review could conceivably be warranted to ensure procedural safeguards for petitioners). Ruemmler expressed discomfort with a president unilaterally voiding whole classes of criminal statutes using the pardon power. According to Ruemmler, there is nothing to stop a President from invalidating an entire class of criminal statutes, including ones the public agrees are necessary like those that criminalize sex trafficking, if a president so wished. Additionally, Josh Friedman, then an Associate White House Counsel and head of the team assigned to review clemency petitions, stated later that it could be construed as arrogant for a president to cavalierly overturn convictions that the State had spent time, energy, and resources to obtain, unless those convictions were illegitimate. 

Finally, there were unknown unknowns that come with any new endeavor. The Administrative Office of the U.S. Courts slowed down the initiative by denying private attorneys recruited to vet petitions access to a petitioner’s pre-sentencing report. Some of the six factors were interpreted and weighed differently by different personnel at different times, leading to some confusion as to which petitioners were actually eligible for a commutation.

Despite these restraints and hiccups, the Obama administration’s efforts had some big things going for it, chief among them being President Obama’s early commitment to using clemency compared to his two immediate predecessors, both of whom waited to deal with clemency until their final year in office. There were also signs that the tough-on-crime mantra that had defined criminal justice politics was starting to give way to something less draconian. This gave the administration time to discover and work through the unexpected kinks and logjams destined for any new program, without having to deal with the kind of political fire that previous administrations dreaded.


Lessons And Future Reforms

In his final three years, President Obama commuted 1,696 sentences through the Clemency Initiative. While the initiative itself is unlikely to be replicated due to its time-specific circumstances, there are broad lessons to be learned by those dedicated to criminal justice reform, as well as ones more directed at the pardon power itself.

First, broadly speaking, leniency can be applied to those guilty of serious crimes without putting the public at risk. As Jim Cole made clear, the people who were eligible under the initiative for a commutation were not "Mother Theresa-types." They were all found guilty of serious drug crimes. At the same time, it was clear that they were serving sentences that were far more excessive than was in the interest of the public and of justice. That there have been very few instances of recidivism among those who were released early that either I or officials I spoke with are aware of demonstrates just how unbalanced and unnecessarily harsh our current sentencing regime is.

Second, leniency involves tough choices. The Obama administration took seriously concerns about public safety, resource constraints, and democratic norms. At the same time, President Obama strongly felt that there was a need to alleviate a unique injustice. By developing processes for evaluating petitions that necessarily limited who would receive a commutation, and accepting democratic accountability through the President's "individual look" approach, the administration was able to assure the public that it was not putting their safety at risk while also not overwhelming the system it had to work with.

Finally, leniency takes time. Had the Obama administration waited until its final year to use clemency as its two immediate predecessors had, it is likely that the obstacles that were discovered in 2014 would instead have been discovered in 2016. By starting when it did, the administration was able to learn about what it did not know and adapt to the circumstances.

After considering these broader lessons, advocates of a more robust use of the President’s pardon power can consider what steps need to be taken in the future. Perhaps a better way of thinking about the issue is asking the question “what, other than self-restraint and broader legislative reforms, held the Obama administration from granting clemency to more individuals?” 

The answer is time, unknown unknowns, and resources. The Obama administration was self-aware of the fact that it had only the remainder of his time in office to get anything done. Additionally, it knew that too many qualified applicants could overwhelm the limited institutional resources that were available to it. Hence the conscious decision to add factors to limit the pool of prospective recipients, factors that were informally given less weight than other criteria. 

Little can be done by any President alone about time and no one can ever truly know what they don’t know. But there is much that can be done to increase the resources available to executive departments that facilitate leniency.

For example, the DOJ’s Office of Inspector General (“OIG”) identified a lack of staffing at the Office of Pardon Attorney in the first two years of the initiative as slowing down the evaluation process of clemency petitions.  It also found that a temporary infusion of staff to the OPA under Bob Zauzmer significantly increased the office’s processing capacity. A future administration with a favorable Congress could easily remedy a similar situation from every taking place by permanently increasing the OPA’s staff.

To be clear, such tweaks to already existing institutions are not the silver bullet to mass incarceration and excessive punishment. As critics of the initiative like to point out, 1,696 commuted sentences is a drop in the bucket to the federal government’s overall prison population and those who may be deserving of reduced sentences. But it’s low hanging fruit in the fight to loosen the restraints on leniency that, if plucked, has proven potential to lead to concrete and meaningful changes to thousands of people’s lives.


This post is by James Sunshine, Former Research Associate in the White House Office of Communications (2015-17) and Michigan Law, J.D., '19.

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