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January 20, 2009

Is it too early to start demanding President Obama use his clemency power?

Barack Obama has been President of the United States for barely an hour, but he has already issued his first official proclamation.  Here are some notable snippets:

On this Inauguration Day, we are reminded that we are heirs to over two centuries of American democracy, and that this legacy is not simply a birthright -- it is a glorious burden. Now it falls to us to come together as a people to carry it forward once more.

So in the words of President Abraham Lincoln, let us remember that: "The mystic chords of memory, stretching from every battlefield and patriot grave to every living heart and hearthstone all over this broad land, will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature."

NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, by the authority vested in me by the Constitution and laws of the United States, do hereby proclaim January 20, 2009, a National Day of Renewal and Reconciliation, and call upon all of our citizens to serve one another and the common purpose of remaking this Nation for our new century.

Sounds good to me.  And if the new President really is committed to renewal and reconciliation, if he is really committed to the belief in the ability of everyone, even those who have committed crimes in the past, to be "again touched ... by the better angels of our nature," he ought to celebrate today by using his clemency power aggressively to help many of the offenders who got an undeserved cold shoulder from former President George W. Bush.

January 20, 2009 at 01:02 PM | Permalink


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Doug, do you really think that Barack Obama is dumb enough to put his agenda at risk by releasing bunches of criminals into society? What, pray tell, do you think happens if one of those guys decides to kill someone? Obama gets blamed, and it will impact his agenda. That's the reality, and you know what, it is fair to hold the executive accountable for pardons.

I agree that the pardon/clemency power is not used enough. But there are political realities to its use, and you cannot be blind to them. Governor Ehrlich of Maryland was a good model. Perhaps Obama can learn from him.

Posted by: | Jan 20, 2009 1:10:07 PM

There are thousands (perhaps tens of thousands) of federal offenders in prison for non-violent offenses who may be less likely than many readers of this blog to kill anyone. Notably, President Obama's proclamation speaks of "the courage and decency of the American people," and I think he could and should show a little courage and decency by finding at least one of those offenders he can trust to show just a hint of mercy today. I would like to believe our new President is smart enough to understand that there are people right now in prison who have done less terrible things that the President himself admitted to doing in his autobiographies.

Posted by: Douglas A. Berman | Jan 20, 2009 1:18:43 PM

Doug is absolutely correct. The alleged political "risk" of clemency is almost certainly overstated. I know of several clemency recipients of Reagan and Clinton who reoffended after receiving a commutation or a pardon. One benighted person actually murdered his wife, albeit 20 years after Reagan commuted his sentence for a bank robbery conviction. The fact that you've likely never heard about these cases makes my point. The Willie Horton episode was simply a deplorable and dishonest campaign tactic. It's become a part of the "received wisdom" and should be put in proper context.

If the Pardon Attorney's Office does its job properly, and actually makes an effort to single out deserving cases, we would have about as much reliability as is reasonably possible, accepting that no human process is going to be perfect. Prosecution and sentencing decisions aren't perfect either, but I don't see anyone wringing their hands about that.

The best way for Obama to take the political sting out of the pardon process is to make it a routine house-keeping part of the presidency. I would agree that he shouldn't start by, say, commuting thousands of drug cases at once. But he could restore public confidence in the pardon system by regularly and responsibly exercising the power in deserving cases.

Posted by: anon | Jan 20, 2009 1:38:27 PM

George W. Bush reduced or eliminated sentences of persons already serving prison sentences in just 11 instances over eight years (the remaining cases simply removed the collateral effects of felony convictions already fully served). It is safe to guess that Obama will ultimately be more generous.

Posted by: ohwilleke | Jan 20, 2009 2:46:52 PM

Doug, when you say "non-violent", you probably cover up for a lot of sins. In any event, I think you should be forthright in that regard.

Putting that to one side, Doug, you hit the nail on the head when you talk about the numbers. Lets say Bush, instead of reducing sentences in 11 instances did so in 150 instances. That would certainly make you guys think him better, but the reality is that it would be a drop in the bucket. It wouldn't fundamentally alter our incarceration policies one bit, nor, on the macro scale would it change things much--there would still be thousands in the pokey.

What you're looking for, unless you are satisfied with tokenism, is a muscular use of the clemency power to deal with those thousands of "non-violent" offenders. And if you think for a second that Obama would not suffer politically for what these guys do, you are simply naive.

I am of the firm opinion that a prison bed is a scarce resource and that clemency has a role in maximizing the value we get from that scarce resource. But there are political realities that need to be considered. And making a meaningful dent in the incarceration of thousands presents a lot of risk. Why this is a hard concept is beyond me.

Anon talks about Willie Horton--can someone please explain why a first-degree murderer should be given weekend furloughs in the ordinary course?

Posted by: | Jan 20, 2009 3:36:17 PM

My husband along with thousands of other first time non violent offenders inmates were hopeful and filed for commutation from President Bush, only to have their hopes dashed one again.
I cannot understand how you can serve 55 years in prison for a small amount of marijuana or be sentenced to 8 years one month in prison for lobster tails as my husband did. He has already been in prison going into five years . It's obsured.
I am happy for the "border agents" that President Bush commutated them . I feel their sentence was not just either. But their families are not the only ones suffering. We all are. Because we don't have the connections to contact the US pardon Attorney directly like the "border agents" lawyer did I do not feel that this is fair or right either. For all of you who comment and feel like all first time non violent offenders deserve to be in prison. i hope that you are never the target of proscution, because you will know first hand what the stystem is really llike.

Posted by: | Jan 20, 2009 4:36:54 PM

3:36:17 PM,

I think you're correct that Obama would pay a heavy political price if he suddenly commuted thousands of sentences, but no one is being naive about this. I advocated a measured case-by-case approach to clemency precisely to reduce the risk inherent in clemency. I never supposed that this would "fundamentally alter our incarceration policies" by itself. But it could be used as a tool to illustrate the need for legislative change, and a powerful one at that, if Obama wants to take on the issue of criminal justice reform. That is not merely "tokenism."

Posted by: anon | Jan 20, 2009 4:47:03 PM

Anon, I wrote that one. When I said "tokenism", I was talking about releasing a few people out of the thousands. And since Doug said the number was in the thousands, then I think you're naive if you believe that Obama is going to do anything but a few symbolic clemencies. Most people agree that the crack-powder distinction is too much. Having lived thru the crack epidemic, I am not sure that a 1:1 ratio is the right answer either. Crystal meth and crack seem to be about the same on the destructiveness scale--is there much of a disparity between the two?

I believe 4:36:54 was talking about a Honduran named McAn. His case was deserving of executive clemency. It's unfortunate that did not happen. Hopefully, President Obama will see fit to release him.

Posted by: federalist | Jan 20, 2009 5:20:19 PM

For the record, 3:36:17 PM, for right now I would be quite "satisfied with tokenism." In light of all the forces that push toward sentencing severity, even a clemency token --- dare I say a token of sentencing justice --- would be a welcome symbol that the "politics of fear" really might get replaces with the "practice of hope" in the operation of the federal criminal justice system.

Posted by: Douglas A. Berman | Jan 20, 2009 5:26:46 PM

4:36:54 PM, you don't seem to be taking advantage of the most selfish amendment, the First Amendment. Gather up the kids if you have any, get your local reporter to stop by and pull the heart strings. The story has to be about 90% emotional and you have good cause. No kids? Figure another angle. The story has to "have legs," meaning it has to develop a momentum of its own. If at first you don't succeed, try, try again. It has to have just the right touch to kick it off, so if the first or second reporter doesn't do the trick, try a third. Try contacting Huckabee and getting on his show. He's a real Republican. Try contacting Nancy Grac... no, skip that.

The media has to have conflict and drama. Give them a story. Send brief but effective letters to the editors saying what your wrote here. Make this tragedy the talk around water coolers.

Posted by: George | Jan 20, 2009 8:02:15 PM

You want to make a REAL systemic impact? Instead of pardoning/commuting a hundred or so offenders or sentences, go ahead and increase the good time rate for federal inmates (retroactively, of course). Double the rate from 54 to 108 days, and you effectively cut ALL (or at least the vast majority) of sentences by another 13 or so percent. It would result in the immediate release, most likely, of a few hundred offenders, (who would not be pardoned, but would immediately begin serving their terms of supervised release) and have a long term dampening effect on the 200,000 figure we've become accustomed to in federal prisons. In my humble opinion, it's a MUCH more politically palatable (i.e. possible) resolution than large-scale pardons.

Posted by: | Jan 20, 2009 10:56:49 PM

For a start - release non violent marijuana offenders over 60. This would soften the "Willie Horton" fear.

George is right. when all else has fails you still have the right to launch a first rate PR campaign. It's just pathetic that that's the only way to justice. I'm familiar with 4:36 husband's case and it is painful. He should not be in prison.

Posted by: beth | Jan 21, 2009 12:11:20 AM


With all due respect, if you think it wouldn’t have been a big deal if Bush had granted 150 commutations, then you are the one who is being politically naive. It would have been a huge deal. It would have given the reform movement an incredible shot of momentum by illustrating, in a vivid way, the problems with the current punishment system. I think we all more or less agree that systematic legislative reform is the ultimate answer. The question is how to make that happen, and I think clemency can be a trigger. So, no, Obama isn’t going to solve the problem of mass incarceration with a relatively few commutation grants. By the same token, it’s cynical rather than realistic to suggest that the responsible use of the clemency power would be merely symbolic in its effects.

I would also remind everyone who worries (reasonably enough) about the “Willie Horton” syndrome that the opposite is also possible. For example, at least thus far, recent federal commutation grantees have acquitted themselves quite well. To my knowledge, none have reoffended and many are flourishing. My personal favorite is Serena Nunn, who was commuted by Clinton in 2000 after spending about a decade in prison for a non-violent drug offense. She has since finished college, started a family, hosted a talk radio show, finished law school, and recently sat for the bar. Was her grant a meaningless “drop in the bucket” merely because there are thousands of others who might also deserve a second chance? How many lives do you think her commutation has effected in a positive way? As Hugo Bedau put it, “The underlying principle ought to be this: It is better to risk some social cost in order to extend mercy to an offender than to risk unnecessary punitive deprivations by withholding mercy.”

Posted by: anon | Jan 21, 2009 2:39:49 AM

My point, which seems to have been lost, is that, as a practical matter, if one thinks that there are thousands or even tens of thousands of prisoners languishing in federal prisons, it is naive to think that a president is going to risk his presidency on reducing that number in a significant amount via the pardon power.

There is little doubt that Barack Obama is sympathetic to criminals. His commentary on the Jena Six removes all questions about that. A six-on-one racially motivated stomping of an unconscious victim was described by Barack Obama as a "schoolyard fight". (One wonders, of course, if the races had been reversed whether Obama would have been quite so charitable to the assailants.) But Obama is also sympathetic to a lot of other people, and is smart enough to realize that letting lots of criminals go can have a lot of political fallout if some of them wind up causing significant harm.

Clinton's grant obviously was a good one, and I think I;ve made myself clear that I think that the clemency power can be a tool to ensure that we are making the best use of a scarce resource. I also think that there are people who are suffering needlessly cruel sentences, and executives should use the pardon power to deal with these issues. However, different people have different views on the subject.

I wonder if Mr. Bedau has to live in areas where there are a lot of ex-cons.

Posted by: federalist | Jan 21, 2009 11:22:03 AM


Your crack about Bedau is a cheap shot. And, for the record, I'd rather have Serena Nunn as my neighbor than someone with a smug attitude of moral superiority.

Moreover, you are being deliberately obtuse when you suggest that we seem to have missed your point. Rather, your argument is a non-sequitur, because no one is disagreeing with you on that particular point. For the third time, you are correct that Obama isn't going to throw open the prison doors via the pardon power, for just the sorts of reasons you suggest. But it doesn't follow that the pardon power can't be used as a tool in shaping sentencing policy, in addition to providing relief in individual cases.

Posted by: anon | Jan 21, 2009 12:25:00 PM

It wasn't intended as a cheap shot. It was intended as a means to evaluate Bedau's statement. It's easy to be "enlightened" with other people's safety.

And maybe you'd rather live next door to Ms. Nunn than me, and that's cool. But that's not really the issue. I have zero issues with the pardon, and I suspect that most people would agree with me. Would you rather live next door to a random drug crime pardonee?

With respect to my being obtuse. I suggest you re-read the original post. Doug was talking about "many" of the offenders who got a cold shoulder from Bush--that's not an insignificant number.

In the spirit of not talking past each other, I'll leave you with this. On the macro level, when it comes to pardons, there necessarily isn't going to be a whole lot of "delta" between Bush the parsimonious and Obama the generous. You guys are looking, it seems to me, at symbolism. I am saying that symbolism aside, if you think that thousands of people are unjustly imprisoned, whining about Bush's parsimony really misses the point.

Posted by: federalist | Jan 21, 2009 2:47:23 PM

It was a cheap shot. Bedau is a respected scholar who has written about these issues for many years. To speculate that he is a hypocrite (i.e., do as I say, not as I do) is unfair. If you intend to "evaluate" his statement, then make an argument. With respect to the average pardonee convicted of a drug crime, I've met several and I'd be comfortable living next door to any of them.

Posted by: anon | Jan 21, 2009 5:20:59 PM

The question is not the current pardonee, the process is tight enough that anyone who gets through on merit is likely to be highly deserving. Instead the question is how comfortable you would be if that process were made looser.

Also, I doubt that 150 commutations spread over 8 years would have made any difference to how people view the federal CJ system. 150 a year perhaps, but not 20.

Posted by: Soronel Haetir | Jan 22, 2009 12:32:57 AM

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