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February 21, 2022

Taking time to celebrate the clemency power on Presidents' Day

I suppose on a President's Day we ought to celebrate all of Article II of Constitution, but regular readers will not be surprised by my eagerness to focus particularly on the last couple dozen words of Article II, Section 2, Clause 1: "The President ... shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment."  Much could and should be said about clemency circa 2022, but I will be mostly content here to flag a few older pieces about the clemency work of Presidents George Washington and Abraham Lincoln:

From Fox News, "Presidents Day: Newly discovered Washington, Lincoln letters delve into pardon power, clemency"

From the Smithsonian Magazine, "The First Presidential Pardon Pitted Alexander Hamilton Against George Washington"

From Friends of the Lincoln Collection, "Lincoln’s Clemency: The Policy Limits"

Of course, there is a whole lot of great new academic writing about about clemency, largely because Prez Trump's controversial use of this king-like power generated a whole lot of commentary about what he actually did and what he might do.  For those taking stock, Prez Trump granted executive clemency to 237 individuals though his full term.  As is the unfortunate modern tendency, his clemencies were bunched mostly at the end of his term: he had granted just two clemencies (one pardon, one commutation) by the time of his second Presidents' Day in office, and he had granted only about a dozen more by the end of his second year in office. 

Prez Biden, though pledging as a candidate to "broadly use his clemency power for certain non-violent and drug crimes," has yet to grant a single clemency.  But, because there has been some buzz about possible clemencies, I am hopeful Prez Biden will soon live up to his campaign promise and improve on Prez Trump's record here.  But, even if Prez Biden gets his clemency pen out soon, I strongly believe the clemency process needs to be vastly improved and I hope that the FIX Clemency Act introduced in US House late last year might start getting some attention.

And though there is much more worth saying on this front, I will close will a final bit of academic celebration through a link to a great article by Professor Mark Osler that, at least for me, can capture the spirit of the day simply through its title: "Clemency As The Soul Of The Constitution."

February 21, 2022 at 12:07 PM | Permalink


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