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January 20, 2021

Reviewing some notable data after a notably final clemency flourish by Prez Trump

A few months ago, I noted in this post a Pew Research Center piece, "So far, Trump has granted clemency less frequently than any president in modern history," which assailed then Prez Trump’s "sparse use" of his clemency powers as of Nov 2020.  At that time, I called the Pew piece a bit unfair because it compared Trump's record in his (then-not-complete) first term to mostly two-term Presidents.  I also noted that Prez Trump had already granted more clemencies in his first term than had Prez Obama or Prez George W. Bush at a comparable point in their first terms and that some more clemencies were surely to come.

Sure enough, after a bunch of pre-Christmas grants and a final big group of pardons and commutations, (former) President Trump's clemency record might now be reasonably described as fairly substantial.  Though I wish he had done a lot more, and while I still recall getting way too excited back in 2018 when Prez Trump said he was considering 3000 people for clemency, some basic data make the case for him being a significant user of his clemency powers.  Of course, there are ample grounds for criticizing the substantive decisions and the opaque process surrounding  Prez Trump's use of his historic clemency power.  But reviewing the raw numbers with an eye on the modern history of clemency highlights that it is no longer accurate to even suggest Trump's use of this power was sparse. 

Specifically, according to the data on this Justice Department "Clemency Statistics" page (which seems up-to-date but may be an undercount), Prez Trump is reported to have granted in his four years in the Oval Office a total of 206 clemencies in the form of 117 pardons and 89 commutations.  Even that number (which may be a bit low) amounts to nearly three times as many clemencies as our last one-term president: Prez George H.W. Bush granted only 77 total clemencies during his four years in office.  Indeed, in only one term, Prez Trump's used his clemency pen even more than Prez George W. Bush did over two full terms as he granted only 200 total clemencies during his entire eight years in office.

Given that Prez Trump was often eager to lay claim to a Reagan legacy, it is notable that Prez Trump can lay claim to using his clemency powers more in his first term in office than any president since Ronald Reagan.  As clemency fans may know, Prez Reagan was something of a marker of two different clemency eras: nearly every president before Reagan used his clemency powers more than nearly every president after Reagan (e.g., Prez Nixon alone used his clemency power more in roughly five years than both Prez Bushes and Prez Clinton combined over 20 years).  Prez Barack Obama is the one exception to the ugly modern story of relative clemency disuse because of his remarkable second-term commutation project, but that valuable program was still relatively modest if measured against the massive size of the modern federal prison population.

A focus on commutations makes the clemency record of Prez Trump perhaps especially notable.  Leaving Prez Obama out of the analysis, Prez Trump's 89 commutations amount to more federal prison commutations granted than any other president since Prez Lyndon Johnson and amount to more prison commutations granted than any Republican president since Herbert Hoover!  

Because so much of Prez Trump's early use of his clemency powers was overtly political and/or self-serving, I do not want to be misunderstood as unduly praising how Prez Trump used these critical powers of justice and mercy.  But I do want to strongly embrace the sentiments in this recent Slate commentary and headline: "The Presidential Pardon Power Is Good: Trump abused it, but clemency remains an indispensable tool that should be used more often, not less."  As Mark Joseph Stern put it even before the last round of grants: 

[A] jaundiced view of clemency is understandable.  It is also misguided.  The pardon power exists for a very good reason, and its exploitation at the hands of crooks and con men should not give cause for its eradication.  It is not some obsolete relic from a simpler era, but a vital safeguard against unjust convictions and disproportionate sentences.  The United States’ federal prisons are filled with good citizens who have no business being behind bars.  It is unfortunate that Trump has overlooked these individuals in favor of his vile cronies.  It would be catastrophic if Trump’s actions prevented future presidents from using the pardon power to free the people who actually deserve clemency.

Thankfully, in his final batch of 143 clemencies, the ratio of deserving individuals to cronies seemed a lot better than in early rounds.  Regular readers know I have been advocating for reform of the clemency process for more than a decade, and I hope that becomes the focal point for continued calls for reform.  But imperfect and even poor use of the clemency power still seems to me better than no use at all.  I still wish Prez Trump did a lot more and a lot better with his clemency power, but now it is time to focus on urging Prez Biden to do a lot more and a lot better with this power ASAP.

A few of many recent related posts:

UPDATEThere is now an updated version of the Pew Research Center piece available here under the headline "Trump used his clemency power sparingly despite a raft of late pardons and commutations."

January 20, 2021 at 04:13 PM | Permalink


If we assume that many of the pardon and commutation grants indicate a determination that the original sentence was a mistake we're missing an opportunity to learn why the mistake was made. "We're smarter now, than they were then" doesn't seem like a complete answer. What did the prosecutors ask for why? Was the Presentence Report complete? Misleading? Why? Training of PO? Resources? Did the defense adequately present a case for leniency? If not, why not? It seems to me that a non-blaming, all-stakeholders (community and victim perspectives represented) review of the original decision can identify and address conditions and influences that are still lying around awaiting the next sentencing decision.

Posted by: James Ddoyle | Jan 20, 2021 4:25:21 PM

James, I like your instinct to want to do a kind of forensic review for error in these cases, though I suspect there are lots of different stories to tell. In some cases I know about a bit, there is a huge "trial penalty" in play for defendants who would not take a plea and then got slammed for it. Some other cases, like the marijuana offenders, might just reasonably reflect "the times have changed." Still others involve other forms of misfunction in the wheels of justice or just recognition of rehabilitation.

Posted by: Doug B. | Jan 20, 2021 6:35:46 PM

In the case of my friend Sholam Weiss, who received a commutation of his record 735 year sentence, for non-violent, white collar crimes, there was something more at play than the TRIAL PENALTY. Mr. Weiss had the longest Federal criminal trial in the U.S. in 2000 -- it lasted more than 9 months. Although the trial was conducted in Orlando, Florida, Weiss lived in New York. During trial, he was free on $500,000 cash bond, but was restricted to moving among New York, New Jersey, Connecticut and Florida. Each Sunday during trial, he returned to Orlando from New York aboard his private jet plane. As the evidence rolled in against him at trial, the Government moved several times to either substantially increase his bond amount or to revoke his bond. Each time, the trial Judge rebuffed the Government, and reminded the Government that Weiss still enjoyed his presumption of innocence, no matter what the trial evidence was. In the end, Weiss disappeared and failed to appear for Court a few days before the jury returned its guilty verdict on about 74 counts. First, he fled to Brazil, and then, as the F.B.I. was closing in on him there, he fled to Austria. When Weiss was sentenced in absentia, his trial Judge, Patricia Fawsett, was angry that he had fled after she had let him remain out on bond during the trial. Thus, she gave him the statutory maximum sentence for each count of conviction and ran all sentences consecutive to one another to achieve "total punishment" under the Guidelines. Her sentencing of Mr. Weiss was just vindictive. Later, Weiss's direct appeal to the 11th Circuit Court of Appeals was dismissed upon the Government's Motion under the "Fugitive Disentitlement Doctrine". Ultimately, after protracted negotiations, Weiss was extradited back to the U.S. to begin serving his (then) 745 year sentence. Following a 2241 Habeas Corpus Petition, where Weiss was represented by Prof. Steve Saltzburg, Weiss's sentence was reduced to 735 months (but without a re-sentencing hearing or a new PSR) and he was given a new appeal to the 11th Circuit, which affirmed his sentence. Then, the U.S. Supreme Court denied Certiorari and Weiss's 735 year sentence became final until it was commuted by PResident Trump on January 20, 2021.

Posted by: Jim Gormley | Jan 21, 2021 6:19:17 AM

Hi Doug! Author of the Pew analysis here. Just flagging that the piece has now been updated with final statistics for Trump: https://www.pewresearch.org/fact-tank/2021/01/22/trump-used-his-clemency-power-sparingly-despite-a-raft-of-late-pardons-and-commutations/. Also noting that both the original piece and the updated piece allow for an apples-to-apples comparison between one-term presidents and two-term presidents. You just need to look at the far right column on the first chart, which shows the percent of all clemency requests granted by each president.
John Gramlich

Posted by: John Gramlich | Jan 24, 2021 10:39:33 AM

Many thanks, John, for the link to your updated piece. Given that Trump used his clemency power more than any GOP Prez since Reagan (and that Reagan only averaged 205 grants/term), I think it could be useful to note that Trump used his clemency power more robustly than any GOP Prez in the last half-century. Also, given modern concerns about mass incarceration, the fact that Trump granted more commutations in a single term than fully 7 of the last 8 presidents also seems quite noteworthy.

That all said, I am very glad your piece placed Trump's work here in statistical context, and I hope Biden gives us both a lot to write about in the months to come. Thanks again for your helpful work on this front and for alerting me to the update. Much appreciated.

Posted by: Doug B. | Jan 24, 2021 10:08:47 PM

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