Near the start of his second term, President Obama had granted clemency at a lower rate than any president in recent history. He had pardoned 39 people and denied 1,333 requests. He had used his power to commute a prisoner’s sentence just once.
But as Obama enters the final days of his administration, he has dramatically picked up the pace. He’s now issued commutations to 1,176 people since entering office — more than George W. Bush, Bill Clinton and Ronald Reagan put together. In December, Obama commuted the sentences of 231 people in a single day.
Much of Obama’s increased activity can be attributed to an initiative begun in 2014 to shorten sentences of non-violent offenders who would likely have received less time for their crimes under current law and who had already served at least 10 years of their prison sentences. Low-level drug offenders have received most of the commutations, part of a broader push by the administration to reform sentencing guidelines.
“Historically, clemency has been used to heal national wounds after a war,” said Mark Osler, a law professor at the University of St. Thomas in Minnesota who started the first federal commutations law clinic. “There was a big batch of grants during and after the Civil War, after World War I, World War II, the Korean War, the Vietnam War — and in a way, Obama is doing it after the War on Drugs.”
While Obama’s commutation numbers have accelerated, they do not, as the White House has put in press releases, exceed those of the last 11 presidents combined, Osler pointed out. Gerald Ford put together a clemency board in 1974 specifically looking to pardon Vietnam War draft dodgers. In just a year, the board reviewed 31,500 petitions and recommended clemency for 13,603.
Presidents have broad power to forgive federal offenses. Pardons and commutations don’t erase convictions, but pardons “forgive” a crime and can restore rights such as voting and remove hiring barriers. Commutations reduce sentences but do not restore rights such as voting.
To determine who receives clemency, Obama, like his predecessors, relies on recommendations from the Office of the Pardon Attorney, the arm of the Justice Department that reviews applications. A would-be petitioner is eligible for a pardon after a five-year waiting period and must fill out a lengthy petition. Clemency petitions makes their way through seven different layers of review and four separate federal buildings. As he’s granted almost 1,200 requests for commutations, Obama has denied 14,485, according to Department of Justice statistics.
It’s a slow process that’s not designed to handle the current federal prison population, said New York University School of Law professor Rachel Barkow, who serves as a member of the US Sentencing Commission. That’s one reason Obama’s clemency push has fallen short of Ford’s.
“I think he tried to use the existing structure to do something that really hadn’t been done before, and it think the structure just struggled,” Barkow said. “There’s not enough people to deal with it, there was too much bureaucracy and it shouldn’t be in the DOJ. It’s asking too much to ask prosecutors to rethink what they already did.”
Paul Larkin, who directs the Heritage Foundation’s project on criminal law, suggested that Obama first tried to address the problem of mandatory minimums by sending guidelines through Congress. The legislative efforts resulted in the 2010 Fair Sentencing Act, which increased the thresholds of drug amounts to trigger mandatory minimum sentences.
But the act didn’t apply retroactively, so Obama has turned to clemency.
“He waited until way too late to start,” Larkin said. “He should have started right then and there exercising his clemency power.”
Larkin, too, suggested moving the clemency process out of the Department of Justice — away from prosecutors who brought cases against the petitioners in the first place — and putting it in the White House, headed by the vice president.
Obama pardoned 78 people one day last month, but has still issued fewer pardons than his predecessors. Likely, Osler said, the pardon attorney’s resources have been taken up with commutations. Obama also has so far sidestepped pardon requests for Edward Snowden and Chelsea Manning (Update: Chelsea Manning has been put on President Obama’s “shortlist” for commutation), the most politically charged cases likely to cross his desk. He has given no indication that he’ll grant pardons to either.
The pardons process came under scrutiny in a 2011 ProPublica investigation which found that white applicants seeking presidential pardons were four times as likely to get them as minorities, even when applicants had committed similar crimes. An analysis of about 500 pardons issued during the George W. Bush’s administration found that advocacy made a difference, especially by those with political connections. Support from a member of Congress substantially increased the chance of a pardon.
In one case, our investigation found, the former Pardon Attorney, Ronald Rodgers, had left out crucial evidence in his recommendation to the Bush administration to deny one petitioner’s appeal for a commutation. Rodgers was replaced as pardon attorney and the prisoner’s sentence was commuted in 2014.
After ProPublica’s investigation, the Department of Justice funded a study to examine the role of race in the pardons process. The results were supposed to have been released in 2015. DOJ officials did not respond to multiple requests for comment about the status of the study, saying only that new pardons data was under review and “a report should be available in fall 2017.”
The incoming Trump administration seems unlikely to continue Obama’s push to commute sentences of low-level drug offenders. Alabama Sen. Jeff Sessions, Trump’s pick to head the DOJ, has vocally supported mandatory minimums and harsh drug laws. Trump spokeswoman Hope Hicks did not respond to a request for comment.