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November 8, 2010

"Obama's Mercy Dearth"

The title of this post is the headline of this potent commentary by Professor Mark Osler that ran over the weekend in the Dallas Morning News.  Here are excerpts:

On Oct. 28, the White House announced that President Barack Obama had earlier in the month denied 71 pardon requests and 605 petitions for commutation of sentence, while granting none.  Nearly two years into his term, Obama has issued exactly zero pardons and no commutations, a sorry record that distinguishes him from nearly all of his predecessors.

This failure to act undermines not only an important constitutional mechanism, but the values that underlay it.  The pardon power was not inserted into the Constitution by accident –- that provision was promoted amongst the framers of the Constitution by Alexander Hamilton, who described it in the Federalist Papers as necessary to mitigate harshness in criminal law. The others agreed.

Is the wisdom of the framers now irrelevant? Of course not.  Overly harsh laws have recently been the topic of debate and reform.  Earlier this year, the draconian 100-1 ratio in federal sentencing laws between powder cocaine and crack (under which trafficking five grams of crack resulted in the same sentence as 500 grams of powder) was revised to a more reasonable 18-1 ratio.  In making this change, the same branch of government that created the overly harsh law recognized that the punishment did not fit the crime.

What the crack/powder reforms did not do, though, is make that change retroactive, and it is very likely that many of the petitions denied by Obama were from crack defendants sentenced under what Congress, the courts and Attorney General Eric Holder have all labeled an overly harsh and even irrational law.  (We don't know how many of those denied fall under this category, as the administration refuses to identify the people whose petitions were rejected.)

We should expect more from a constitutional law professor who becomes president.  The Constitution grants the president relatively few tools of power, and each is important....

Some have described the reverence Americans have for the Constitution as a "civil religion," and I'm not sure that is a bad thing. Religions instill values, and the Constitution certainly does that -– it promotes and describes the values of self-restraint, of consensus and of individual liberty.  That is not a bad batch of virtues.  In the pardon power, though, the Constitution expects expression of an additional virtue: mercy.

Mercy to those unfairly treated is an idea deeply engrained in the American consciousness and spirit, like the concepts of liberty and restraint.  The framers did not lightly place the unchecked power of the pardon in the president's hands, because that power can easily be abused (as it sometimes has been).  Still, they granted the executive that power with the expectation that from time to time rough edges in criminal law sometimes would have to be shaved off.


Some older and newer related posts:

November 8, 2010 at 06:58 PM | Permalink


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The only people who should be upset about Obama’s decision not to exercise the pardon power are those who want him to lose. He may lose anyway, and if he does I suspect there will be a slew of 11th-hour pardons. Otherwise, he’ll probably wait until his second term.

Right now, about the last thing he needs is anything that even smells faintly liberal. Of course, he already has enough of that as it is, but he is wisely conserving whatever political capital he may have left.

And mind you, the lack of pardons is a decision, not a failure. Presidents aren’t obligated to pardon anybody, and Obama’s predecessor wasn’t exactly a generous pardoner either. As a Republican, Bush at least had the benefit of being able to do so without being considered soft on crime, an advantage no Democrat has. The one really dubious pardon Bush issued (Libby) came after he would no longer have to face the voters.

Among Obama’s failures, I would be a lot more concerned about his leaving so many judicial appointments unfilled, an omission that could criple his party for decades to come, especially if he turns out to be a one-term president.

Posted by: Marc Shepherd | Nov 8, 2010 7:25:55 PM

Bush might not have been a "generous" pardoner, but he did use if for people other than Libby. I also don't think, with everything that can be used to attack him, that a few sympathetic pardons or commutations will make any real difference. And, if there are cases that warrant positive action, why wouldn't it be a "failure."

It might not be his biggest duty, but since it is one of the few specific powers listed there, it's something worth noting.

Posted by: Joe | Nov 8, 2010 8:14:08 PM

Marc Shepherd --

Two small factual adjustments. First, Libby was not indicted until October 2005, roughly a year past the point at which point Bush could have faced the voters again even if he had wanted to.

Second, he did not pardon Libby, a "failure" for which Cheney is said to have chewed him out, see http://today.msnbc.msn.com/id/39976132/ns/today-books/. He granted Libby a partial commutation, eliminating the jail term but preserving the quarter million dollar fine.

Posted by: Bill Otis | Nov 8, 2010 8:37:31 PM

Sorry Bill . . . correct on both counts.

Posted by: Marc Shepherd | Nov 9, 2010 8:35:20 AM

I saw a snippet of an interview with former President George W. Bush, or an article about his use of the clemency power. Apparently during the transition period he told President Obama, who, by his inaction, presumably agrees, that the present pardon process is "too politicized" and needs to be reformed, in order to stop political strings from being pulled to get pardons.
Have you taken a look at the pardon attorney website and the pardon application form lately? I got a kick out of the question about debts. Apparently, if you have debts, you don't deserve a pardon. If you have no debts, you've shown the convicton didn't affect you financially, so you don't need a pardon.

Posted by: Greg Jones | Nov 9, 2010 10:07:29 AM

Marc Shepherd --

Absolutely no problem. Overall, in terms of factual accuracy and balanced, pragmatic and analytic thinking, you are in the very top tier of commenters so far as I can see.

Posted by: Bill Otis | Nov 9, 2010 11:26:41 AM

No pardons and reluctance to appoint progressive judges are but two of dozens of profound disappointments for liberals who supported Obama.

As a proud liberal in good standing (ACLU card in wallet, once an Iowa Caucuses delegate for McGovern and then Mondale, etc., considered delaying graduation from a California university to avoid having Reagan's signature on my diploma) what I don't get is all the yammering about Obama's liberal policies. Can anybody who isn't missing prominent teeth or wearing ridiculous hats point to even one distinctly liberal policy Obama has championed? I can't.

And please don't trot out "Obamacare"...not on this blog, anyway, where there's a reasonable expectation that respect for facts and truth count for something. Obama's health care plan was tailored to suit the now-extinct class of moderate Republicans, including Mitt Romney who served up a remarkably similar plan as governor of Massachusetts. So what else have you got?

Obama's "liberal problem" is a weak fiction successfully contrived by and sold to folks desperate for non-racial reasons to portray Obama as the evil enemy.

Posted by: John K | Nov 9, 2010 12:40:11 PM

John K --

You're right, for once. He doesn't have a liberal problem (and if he did, that would hardly be something conservatives would be in a position to fix).

The reason the Dems tanked last week was not that Dem voters deserted. In fact, Dems turned out in numbers almost exactly equal to the last mid-term. The reason they tanked was that the independents deserted. I guess they figured they'd been sold a bill of goods by Mr. Smooth Talk (better even than Clinton, I'm amazed to say).

P.S. Didn't you forget to congratulate me on the fact that my prediction for the House was so much more accurate than yours?

P.P.S. It's not nice of you to make me jealous by talking about your Reagan inscribed diploma.

Posted by: Bill Otis | Nov 9, 2010 1:36:49 PM

John K --

"Can anybody who isn't missing prominent teeth or wearing ridiculous hats point to even one distinctly liberal policy Obama has championed? I can't."

I don't know the dental status of your pals over at Newsweek, or what kind of hats they're wearing, but one of them wrote up a depressingly long list of the liberal legislation Obama supported and, of course, lovingly signed in one of those spiffy signing ceremonies that only Big Shots get invited to.


If that doesn't make your nanny-state/welfare-engorged/deficit-exploding heart feel all warm and nice, you are a lost cause.

Posted by: Bill Otis | Nov 9, 2010 2:41:22 PM

I agree with Bill Otis that Obama’s policies are clearly liberal, though not as much as some of his supporters had wished for.

Where Obama has failed is an inability to point out that Republicans do these things too. The three largest contributions to the current national debt are the Bush tax cuts, fighting two wars without raising revenue to pay for them, and the Medicare prescription drug benefit. All enacted under a Republican president.

Obama signed a stimulus package that didn’t stimulate anything, but Bush signed the TARP (over vigorous conservative objections) that handed out corporate welfare to the likes of Citi, GM, etc.

Conservatives, I think, have managed successfully to persuade independent voters that these are things only liberals do. The real record is a lot more complex.

Posted by: Marc Shepherd | Nov 9, 2010 4:00:53 PM

Marc Shepherd -

I agree that there was major league irresponsible spending under Bush. It was not all his doing, however. People tend to forget that Congress, which alone actually appropriates funds and controls the purse strings, has been under Democratic control for four years.

Obama added a new entitlement (healthcare) on top of Bush's addition of prescription drugs to an old entitlement (Medicare). The country can afford neither. Right now at this moment, we are up to our ears in debt there's no way to pay.

Obama campaigned ferociously (and effectively) against Bush as an irresponsible spender, promising the much-vaunted "change" in the way Bush had operated. Once elected, Obama doubled down on Bush's irresponsibility, claiming time and again that it was an "emergency."

The real emergency is that for a very long time, we have been living beyond our means. Even if the stimulus were effective (which as you correctly note it was not), we cannot keep on like this. The country has an addiction to borrowing against tomorrow to live more comfortably today. Like any other addiction, the strong temptation, in an "emergency," is to give the addict one more hit. And that will indeed make him feel better -- in the short run. In the long run, giving him the hit is an act of cruelty, because it strengthens the addiction and hastens his death.

Whether it's called stimulus or bailout Fed bond purchase or whatever, we simply must stop taking the next hit.

Posted by: Bill Otis | Nov 9, 2010 4:55:06 PM

Bill, I don't think the Newsweek item says what you imply it says.

Basically it's a brief personal column noting the Democratically controlled Congress enacted legislation they'd promised voters in the 2007 elections.

And virtually all of that legislation was related to:

1.) "Obamacare"...with a healthy measure of deficit reduction thrown in as part of the mix.

2.) stimulating the economy with steps indistinguishable from the ones Bush put in motion and

3.) restraining the magical-marketplace pirates who all but destroyed the economy...a position even McCain and most Republican congressional candidates were enthusiastically supporting to one extent or another in the 2007 political season, which of course was several months before the Tea Party freaks decided Obama is the devil.

Posted by: John K | Nov 9, 2010 7:38:24 PM


I think your analysis re political capital and pardons is way off. It seems to assume, implicitly, that pardons are generally high risk acts, when, in fact, nothing could be further from the truth. How many Americans can name 4 people pardoned by President Bush? Pardons are generally (as in just about always) granted to people who have served their time, waited the required period and have integrated themselves into society. They simply want their rights restored. The vast majority of pardons are completely non-controversial. They require nothing like serious political capital.

On top of that, one might argue that Obama is spending political capital by NOT granting pardons. Historically, Democrats have been more generous with the power. He has also expressed concern with mandatory minimums and disparities in crack cocaine sentences. And he signed the recent law. But the rhetoric is not being followed up with clemency. Might that not be costly?


Posted by: P.S. Ruckman, Jr. | Nov 9, 2010 10:27:32 PM

P.S. --

I've been in the criminal law business quite a few years, I have seldom seen a granted pardon have any political impact at all (Ford's pardon of Nixon being the exception, along with (perhaps) Carter's pardon of the Vietnam draft dodgers, both of which grants damaged the President). And I have never seen a denied pardon or pardons have a political impact.

You are correct in thinking that Obama's supporters probably would prefer more pardons, but that is unlikely to be a voting issue per se, and even more unlikely to be a voting issue given that the Republican candidate is probably going to follow the ususal pattern of being tougher on crime than the Democrat.

In sum, the voting issues are going to be the economy and exploding debt, with pardons coming in at # 1185 or so; and the Dems have no place to go anyway.

Posted by: Bill Otis | Nov 11, 2010 4:33:18 PM

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