Executive clemency power exercised by the President of the United States has a rich and distinguished history in America. The Framers robustly championed the executive clemency power that is provided by Article II of our Constitution. At the time of founding, Alexander Hamilton stressed the importance of clemency in the Federalist Papers, emphasizing that "[t]he criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel." Similarly, James Iredell of North Carolina championed the crucial nature of the executive clemency power, explaining that "there may be many instances where, though a man offends against the letter of the law, yet peculiar circumstances in his case may entitle him to mercy." As Iredell explained, because general criminal law cannot "foresee and provide for all possible cases that may arise . . . an inflexible adherence to it, in every instance, might frequently be the cause of very great injustice."
Critically, the federal clemency power was not only praised in theory at America's founding, but it was also honored in practice through America's first two centuries. As former Pardon Attorney Margaret Colgate Love has explained:
[F]rom the early days of the republic the pardon power was pressed into regular service as an integral part of the day-to-day operation of the federal justice system. At a time when the laws were relatively harsh and inflexible, pardon was virtually the only way that federal offenders could have their convictions reviewed, prison sentences reduced, and rights of citizenship restored. Many pardons and sentence commutations were issued each year to ordinary people convicted of garden variety crimes, often upon the recommendation of the prosecutor or the sentencing judge. Far from being an "extraordinary" remedy, pardon was a very ordinary form of early release and restoration of citizenship rights.
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Until 1980, each president granted well over a hundred post-sentence pardons and sentence commutations almost every year, without fanfare or scandal. Grants were issued almost every month for much of this period, evidence that pardoning was considered part of the ordinary housekeeping work of the Presidency, not something reserved for holidays or departure from office. The percentage of clemency petitions acted on favorably remained high, approaching or exceeding 30% in every administration until [President] Jimmy Carter's.
Significantly, not only was the clemency power regularly used by most presidents, but it was often used swiftly. As scholar P.S. Ruckman has effectively documented, roughly half of all presidents granted some form of clemency within their first two weeks in the Oval Office; until recently, nearly every president granted some clemencies during his first 100 days in office. Even presidents serving during the most tumultuous periods in American history found the time and the opportunity to make early and regular use of their clemency power. For example, in their first years in the White House, Abraham Lincoln issued eighty pardons, Theodore Roosevelt issued 128 pardons or clemencies, Franklin Roosevelt issued 167 clemency grants, and Harry Truman issued 107 such grants. ...
B. The Modern Decline of Clemency
In modern times, the executive clemency power has been failing to serve the ends of mercy and justice that the Framers emphasized and that many presidents previously effectuated. Once again, Margaret Colgate Love provides an effective summary of the modern decline of this historically important part of the criminal justice system:
In the past twenty-five years we have lost touch with the rich history of presidential pardoning. Four successive presidents have allowed the pardon power to atrophy, not because there was no more use for it -- certainly this is not true since the advent of determinate sentencing -- but because they both misunderstood and feared it. The Department of Justice, pardon's trusted official custodian for more than a century, marginalized and compromised the power.
President Obama's three predecessors are uniquely responsible for clemency's functional demise. President George H.W. Bush granted a record low number of pardons and commutations, and Presidents Bill Clinton and George W. Bush continued a modern tendency to use the clemency power exceedingly sparingly. Perhaps even more troubling, the last two presidents largely declined to use their clemency power until the end of their terms. Neither Bill Clinton nor George W. Bush granted a single pardon or commuted a single prison sentence for the first two years of their presidencies. And more than half of the clemency grants by President Clinton were issued during his very last days in office after eight years of a presidency marked largely by disregard for the clemency power.
The modern decline in the use of clemency at the federal level is not due to a lack of requests or a paucity of worthy cases; Presidents Bill Clinton and George W. Bush received a record number of pardon and commutation requests. This fact is not surprising, given that in recent decades the federal criminal justice caseload has grown tremendously, the possibility of parole has been formally eliminated by statute, sentencing rules have become more rigid and severe through mandatory minimum-sentencing terms and increased guideline-sentencing ranges, and the collateral consequences of conviction have become more extensive and burdensome. But, while many more persons are subject to the federal criminal justice system and many more offenders are serving longer prison terms and dealing with the ever-more-burdensome consequences of a criminal conviction, the constitutional clemency power continues to atrophy.
Many cultural and political forces have played a role in clemency's modern decline, which has occurred at the state level as well as in the federal system. Extreme tough-on-crime political rhetoric and attitudes have become all too commonplace as criminal justice policy has become increasingly politicized.
