Obama May Grant Clemency to Thousands of Drug Offenders. That’s Not Enough.

The law, lawyers, and the court.
April 25 2014 4:46 PM

Power of the Pardon

Obama may finally use his. But can mass clemency fix a broken criminal justice system?

It’s not clear how a grand pardon pronouncement would play out on the ground.
It’s not clear how a grand pardon pronouncement would play out on the ground.

Photo by John Moore/Getty Images

Is President Obama really planning a mass pardon for hundreds or even a few thousand drug offenders? The administration floated that idea on Monday in an article on Yahoo News. On Tuesday, Obama finally removed from office the U.S. pardon attorney who has served since 2008 despite sharp criticism for years that he’s mishandled his job. And on Wednesday Deputy Attorney General James M. Cole laid out new criteria for the clemency applications of nonviolent offenders.  

Emily Bazelon Emily Bazelon

Emily Bazelon is a Slate senior editor and the Truman Capote Fellow at Yale Law School. She is the author of Sticks and Stones.

It’s a shift that has been a long time coming. Obama has so far pardoned fewer people than any other modern president. But with tens of thousands of petitions expected, how would a mass pardon actually work? And dramatic as it may sound, would it go anywhere near far enough in reforming the pardon system, which has been a mess since the 1990s?

The president’s power of clemency, to either commute a sentence or shorten it through a pardon, comes from the Constitution. In many ways, the 18th and 19th centuries were a harsher corrections era than today, and yet early presidents pardoned convicted criminals as a matter of routine. “Before there was a federal prison system and the possibility of early release on parole, when prison sentences were mandatory and served in squalid county jails, hundreds of federal prisoners were freed by presidential fiat every year,” Margaret Love, the U.S. pardon attorney from 1990 to 1997, writes in a 2012 article.

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Along the way, however, the pardon power shifted from the White House to the Department of Justice. Love explains that, charged with overseeing pardon petitions, the personal secretary for Lincoln’s attorney general decided “to keep all but the most deserving cases from coming before the kind Mr. Lincoln at all, since there was nothing harder for him to do than put aside a prisoner’s application.” In 1898, William McKinley officially routed all pardon applications to the Justice Department. Gradually, the bureaucracy gummed up the works. Franklin Roosevelt directed the DOJ to stop publishing an explanation for each pardon grant in 1933. That was a big mistake, Love points out. Without case-by-case justifications, pardoning could be seen as “ mysterious, capricious, and possibly corrupt.” Still, the pardon had a couple more moments in the sun. John F. Kennedy granted 100 pardons to first-time drug offenders serving mandatory minimum sentences. Lyndon B. Johnson continued the practice and granted 226. Jimmy Carter and Gerald Ford gave clemency to thousands of Vietnam draft evaders.

But then Ronald Reagan delegated the responsibility for making pardon recommendations from the attorney general to a career civil servant. Now the attorney general didn’t have to take responsibility for each pardoning decision, and the enterprise was shunted to the side. At the same time, pressure built from the swelling prison population. As Attorney General Eric Holder has highlighted, “since 1980, the federal prison population has grown at an astonishing rate—by almost 800 percent.” Much of the increase comes from locking up drug offenders, many of them not convicted of violent crimes, for long periods driven by mandatory minimum penalties.

All of this created the conditions for Bill Clinton’s pardon scandals. Clinton neglected the management of the pardon system throughout his time in office, Love charges, and then went on a binge in the last days of his term that made the pardon seem like a perk for the wealthy and the connected. Remember Marc Rich? When George W. Bush took over, he was cautious about using the pardon power—and problems persisted. In 2007, the pardon attorney resigned after an internal investigation into mismanagement. In 2011, ProPublica got the list of names of people who’d been denied pardons, and, in riveting work by Dafna Linzer, showed that white applicants were four times as likely as black ones to win pardons, even when they’d committed lesser or similar crimes—one more racial disparity in a criminal justice system that is rife with it.