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December 28, 2015

"It’s Time for Obama to Go Big on Pardons"

The title of this post is the headline of this notable recent New Yorker commentary authored by Jeffrey Toobin. Here are excerpts:

The orderly mind of Barack Obama appears to recoil at the vulgar world of pardons.  The President is a consummate rationalist, a believer in systems and order.  Pardons, in contrast, rely exclusively on the whim of the grantor. This Presidential power is descended from the concept known in Great Britain as the royal prerogative of mercy — three words that seem almost guaranteed to offend this President, singularly or especially aligned together.

But President Obama is starting to come around on pardons, or at least on commutations. (A commutation allows a convict to leave prison at a designated date; a pardon can also involve an end to a prison sentence but bestows a broader restoration of rights, like the right to vote or own a firearm.)  Last week, the President announced that he had commuted the sentences of ninety-five federal prisoners and granted two pardons.  In seven years, Obama has now issued a hundred and eighty-four commutations, more than his last six predecessors combined, but only sixty-one pardons, which is far less than most recent Presidents.... Obama is moving in the right direction, but he has a long way to go.  There are roughly two hundred thousand people in federal prison in the United States.  Do they all belong there?  Should only a few dozen have their sentences shortened?

Those questions answer themselves, as Obama himself knows.  He has made the reduction of mass incarceration one of the touchstones of his final years in office. As he said, in a recent speech to the N.A.A.C.P. national convention, “Mass incarceration makes our country worse off, and we need to do something about it.” No one can stop the President from doing at least that.  Since 2011, Obama has been stymied by the Republican Congress from undertaking major legislative initiatives, but the pardon power is absolute and unfettered.  The President can pardon everyone, and anyone, he chooses.

Obama is a democrat as well as a Democrat, and surely something in him rebels at exercising absolute power on a grand scale.  One problem with pardons is that Presidents have considered them in secret, springing the decisions on the public only after they have been made.  In high-profile cases, like Gerald Ford’s pardon of Richard Nixon or Bill Clinton’s pardon of the fugitive financier Marc Rich, the political repercussions have been disastrous. But Obama could avoid this problem with some innovation — and sunshine.  Over the last year of his Presidency, his Administration should publish the names of people being considered for pardons.  In this way, members of the public can make their views known about the wisdom (or lack thereof) of letting each individual out of prison.  All Presidents and governors (who also have pardon power) are haunted by the possibility that they might release someone who goes on to commit horrible crimes. (Former Governor Mike Huckabee of Arkansas pardoned several people who did just that.)

This public airing might well save Obama from making some poor choices, but it will also guarantee him a measure of political protection.  Opponents of pardons will be able to speak now, or they’ll forever have to hold their peace.  If Republicans offer blanket objections to broad pardons, they’ll be demonstrating that they simply want more people in prison, regardless of the costs in dollars, public safety, or lost lives.

Most importantly, this process could allow the President to end or reduce the sentences of many more prisoners than he has done so far.  Obama could make the case for pardons or commutations on an individual-by-individual basis, or he could establish a broader rule — that, say, every nonviolent drug offender with just a single conviction, or possession of a certain quantity of drugs, would be eligible....

Obama should be considering action on this vast scale. When it comes to mass incarceration, he has been content so far to work around the fringes. He has asked Congress to consider reducing sentences for certain crimes.  He has told Attorney General Loretta Lynch to restrict the use of solitary confinement in federal prisons.  These are worthy, modest goals.  But the pardon power, with its roots in the monarchy, allows a President to go big — and that’s exactly how Obama should go.

P.S. Ruckman at Pardon Power is not especially impressed by Toobin's work here, as evidence by this recent posting about this commentary headlined "Toobin: Still the Worst of the Worst."

A few very recent related posts:

December 28, 2015 at 01:23 PM | Permalink


Toobin clowned himself. What a maroon, as they say.

Posted by: federalist | Dec 28, 2015 6:10:09 PM


Posted by: Joe | Dec 28, 2015 6:44:01 PM

I can't see how making choices public for public comments would be helpful. It would be torture for the inmates. As someone who communicates with inmates who are hopeful for relief - this suggestion has already increased my anxiety by several levels.

The power to pardon is exclusively the power of the executive to be used in a full throat ed way, not a mincing and pacing procedure.

On the other hand, I love the suggestion that Obama should be considering action on a vast scale. I hope that he is since that is the promise. There are thousands of nonviolent offenders that would not be a threat to anyone's safety and their release would fulfill the promise of compassion and mercy.

Posted by: beth | Dec 28, 2015 10:46:02 PM

Beth. I respect your opinion. You said, "There are thousands of nonviolent offenders that would not be a threat to anyone's safety and their release would fulfill the promise of compassion and mercy."

What do you think of disclosing your home address to the authorities, their seizing your neighbors' homes under the Kelo doctrine, and moving 8 released inmates into each of those seized properties without a zoning hearing, on the four sides of your home?

Posted by: Supremacy Claus | Dec 29, 2015 9:52:13 AM

How did Loretta Lynch's family acquire that last name? Was an ancestor lynched?

Posted by: Liberty1st | Dec 29, 2015 10:38:50 AM


There are thousands of nonviolent offenders in Federal and State Systems. That means what it says, nonviolent. They have homes and families who would welcome them. I am not referring to violent and dangerous offenders who need to be removed from society.

My home address is disclosed and easily found. I may very well already have violent neighbors I know nothing about. I don't spend time worrying about it - good for me. If the inmates I know are released, I would love to have them come for dinner.

Posted by: beth | Dec 29, 2015 11:26:38 AM

Create a territory called "ex post penal colony". Send the inmates there for three years to get back on their feet again. Georgia would be a good place. It has its roots. Uncle Clarence hails from there. Make the capitol Pin Point or Pin Prick, GA.

Posted by: Beldar From Remulak | Dec 30, 2015 12:48:39 PM

The word "lynching" appears to have arose from a certain Mr. Lynch (of Virginia) who enforced justice without official sanction. Loretta Lynch grew up in N.C. but "Lynch" appears to have been a fairly common name.

Posted by: Joe | Dec 30, 2015 1:52:43 PM

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