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December 18, 2016

Anyone eager to predict how many last-month clemencies Prez Obama will grant?

NA-CM807_CLEMEN_9U_20161217145706The question in the title of this post is prompted by this lengthy new Wall Street Journal article headlined "Barack Obama Weighs Final Requests for Clemency: President has cut short the sentences of 1,023 inmates, more than the previous 11 presidents combined." Here are excerpts:

Barack Obama, who has granted clemency more often than any president since Lyndon B. Johnson, is expected to perform more acts of mercy during his final weeks in office....

Mr. Obama’s critics, including the incoming attorney general, say his use of clemency for a large class of convicts has been a disturbing power grab. But supporters say a law that reduced drug penalties six years ago created severe injustices for those sentenced before it. They also note that Mr. Obama has granted clemency for a relatively small percentage of the large number of people who have sought it.

These trends are a centerpiece of Mr. Obama’s legacy on criminal justice reform. Legislation that would have further reduced sentences for less-serious drug offenders foundered in this fall’s highly charged political climate. But as with other parts of the president’s agenda that were snubbed by Congress—including immigration, gun control and climate policies — Mr. Obama has turned to his executive authority in the absence of more sweeping and durable legislative action. “He’s essentially rejuvenated clemency as a presidential power,” said White House Counsel Neil Eggleston. “But he has never seen it as a replacement for criminal justice reform.”...

Mr. Trump’s pick for attorney general, Alabama Sen. Jeff Sessions, a former chairman of the Senate Judiciary Committee, has described Mr. Obama’s clemency record as an “alarming abuse of the pardon power.” The former prosecutor views the rollback of tough drug sentences as a threat to public safety. Mr. Obama, a former constitutional law professor, sees long, mandatory sentences as damaging excesses from the war on drugs, particularly in the African-American community.

In 2016, Mr. Obama has cut short the sentences of 839 inmates, the most commutations ever granted in a single year, according to the Justice Department, with more possibly on the way. That brings his total to 1,023, or more than the previous 11 presidents combined. Adding Mr. Obama’s 70 pardons, which go further than commutations by wiping out convictions and restoring civil liberties, puts his clemency record just behind Mr. Johnson’s 1,187 grants.

Civil-rights advocates are demanding a more sweeping review that would dent the prison population much faster than the current case-by-case analysis. “We do not know whether the next president will support clemency efforts or criminal justice reform,’ says a late November appeal to President Obama from dozens of groups, including the NAACP Legal Defense and Educational Fund, the Sentencing Project, JustLeadershipUSA and the Brennan Center for Justice. “But we do know that until Jan. 20, you alone have the power to deliver both mercy and justice to those who deserve it.”...

Mr. Obama has received more requests for clemency than any other president, in part because of efforts to encourage inmates to petition for one if they were sentenced before a 2010 law that reduced the disparity between sentences for crack and cocaine offenses. Mr. Sessions spearheaded that legislation, which lightened penalties for crack users, but he opposes applying it to inmates retroactively. So does the nation’s largest police union, the Fraternal Order of Police, which endorsed Mr. Trump.

But in one indicator that Mr. Obama is more cautious than some critics suggest, he has granted 3% of nearly 35,000 requests; only George W. Bush granted a smaller percentage, according to an analysis by the Pew Research Center. Obama also has offered fewer pardons than any president in the past century, though more are expected before he leaves office.

I am tempted to predict that Prez Obama will grant at least a few hundred more prison commutations and also a few hundred pardons before leaving the Oval Office on January 20, 2017.  This is a nothing but a blind guess and I have absolutely no insider knowledge here.  What I do have is a deep disappointment that Prez Obama did not make any apparent effort to change the structure of the modern federal clemency process, which so many commentators (myself included) have rightly criticized as dysfunctional.

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Some recent (post-Election Day) posts on Prez Obama and clemency:

UPDATE:  In the comments to this post and also in an email to me, sentencing and clemency guru Mark Osler expressed justified frustration over the fact that the WSJ article and its chart fail to give respect to the large number of clemencies that Prez Gerald Ford granted in response to offenses related to evasion of the draft during the Vietnam war. (This Fusion article from May provides an effective review of this oft-forgotten clemency story and its continued relevance in a drug war era.)  Mark sent me this update comment of criticism, along with the additional chart here produced by Pardon Power papa P.S. Ruckman.

Complains Prof Osler: "No, Obama has NOT 'granted clemency more often than any president since Lyndon B. Johnson.'   And the chart the WSJ used (and you reprinted) is wrong.  Neither include the Ford clemency grants. That matters, too --- the streamlined Ford process outside of DOJ, which was successful, was the one Obama rejected in favor of the bureaucracy-laden CP14."

December 18, 2016 at 10:18 PM | Permalink

Comments

Twice as many as half.

Posted by: Soronel Haetir | Dec 19, 2016 3:00:55 AM

"more than the previous 11 presidents combined"
Could someone explain this statement? The graph seems to indicate that this is not the case.

Posted by: Dan Jay | Dec 19, 2016 5:31:00 AM

Doug-- You know (and I know you do!) that both the WSJ headline ("More clemency than the last 11 presidents combined") and the chart shown are both simply not true. They both omit President Ford's grant of clemency to over 13,000 draft evaders and army deserters. Not only did the Ford grants actually happen, but they are the most relevant precedent for comparison; instead of adding bureaucracy like Obama, Ford streamlined the process and took in out of DOJ.

Posted by: Mark Osler | Dec 19, 2016 9:54:44 AM

If they showed the raw number of persons granted clemency versus the number of people incarcerated during each president's term, it seems like it might provide more insight. I tend to think there are far more people in federal prison today, compared to many years ago --- however, I cannot immediately point to any statistics for this assumption.

Also, in relation to what Mark Osler stated, Carter actually pardoned thousands of draft dodgers. Ford provided some means of clemency for them. With that in mind, I wonder if there were any large numbers of pardons or grants of clemency based one specific type of crime during any of the time other presidents provided relief? I imagine this is possible, but,again, cannot point to anything to indicate this.

Posted by: Tim Holloway | Dec 19, 2016 10:38:58 AM

"grant of clemency to over 13,000 draft evaders and army deserters"

a special category that does not to me to be on the same level as general clemency to drug offenses or the like. To me, this is worthy of a footnote but numbers alone mislead. With respect, they are not quite the "most relevant precedent."

Posted by: Joe | Dec 19, 2016 1:23:41 PM

Here are the numbers that have not been part of the narrative about this legacy of compassion.

In 1980 the federal prison populating was 24,649
In 1990 federal prison population was 64,000 -
In 2000 population about 145,000
In 2010 federal prison population 210,000+
It continued to expand till 2014 when it reached 2014.

The Obama administration received about 36,000 petition for clemency, about 30,000 of these were for commutation. The prison population had reached epic proportions and was consuming a large % of the criminal justice budget.

The Justice department has denied over 14,000 of these petitions for commutation and over 4,000 have been closed without action. Just over 1,000 petitions for commutation have been granted.

Without thousands more commutations granted - this will be the legacy.

Posted by: beth | Dec 19, 2016 1:47:14 PM

In the end, President Obama had a record on this issue better than some suggested he would, but it still underlines his conservative tendencies in certain respects. I personally knew this upfront -- he was a middle of the road sort that wasn't going the up the apple cart if open to some changing of things in a liberal leaning way in moderate ways. And, some beneficial things occurred there.

It underlines the ridiculous nature of some criticism that makes him out to be some sort of radical.

Posted by: Joe | Dec 19, 2016 2:33:13 PM

He also was working much of the time with Republican control of Congress (or one house) or where the balance of power (with the filibuster included) was fairly conservative. Again, he could have went his own way here, but Obama (including being elected with a unifying message) was not inclined to do that. This might be deemed unfortunate, but it should be cited to get a sense of the ethos. This wasn't the mid-1970s with a Democratic Congress, a different environment in place and so forth. I'm fine with pushing him to go further, of course, but we should analyze the situation completely.

Posted by: Joe | Dec 19, 2016 2:37:07 PM

Well, he was able to get the aca passed without consensus. The problem with clemency is that his attorney general said there could be 10,000. That gave hope to the hopeless and their families. There is still time. Clemency is an exclusive executive power. It does not require a consensus. That is why there is still hope.

Posted by: beth | Dec 19, 2016 2:44:09 PM

"he was able to get the aca passed without consensus"

A supermajority in the Senate and a majority of the House passed that law and while it went on a major Republican once noted "80%" of it was something he could agree on. I'm not sure how much "consensus" is necessary here & a majority is required at any rate.

My point is that this isn't the 1970s, which that doesn't really reply to. It goes around it to make another argument. Which is fine, though realistically, executive action in the real world does require more than the POTUS' say-so. Saying what 'could' happen too should be taken realistically, especially if it was not something said that often, but said at one point.

Posted by: Joe | Dec 22, 2016 3:38:16 PM

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