The Law Barack Obama and the Clemency Power: Real Reform on the Way?

In the United States, we constantly debate the proper extent of presidential power. The Bush administration's decision to conduct wars in Iraq and Afghanistan as a response to the 9/11 terror attacks spurred a number of recent scholarly works dedicated to exploring the limits of executive power (Fisher 2008; Pfiffner 2008; Rudalevige 2006). In just the past few months, we have weighed the ramifications of President Barack Obama's unilateral decision to allow roughly five million undocumented immigrants to remain on American soil (Shear and Pear 2014). While these and other discussions have been underway, many scholars have passed over another noteworthy story about presidential power. The Constitution entrusts the president with the all-but-unlimited ability to forgive federal crimes, but presidents have become increasingly reluctant to wield their clemency power (Crouch 2009, 2). President Obama has been no exception and has generally continued a trend of fewer federal pardons and commutations. However, because Obama may secretly be planning to reduce the sentences of potentially hundreds of low-level drug offenders, now seems to be an appropriate time to review his clemency record and search for clues as to what he might do. In the pages that follow, I will address the state of federal executive clemency under President Obama, who so far has established a track record as one of the least generous presidents in modern history regarding pardons and (until recently) commutations. First, I note that several scholars in a variety of academic disciplines are contributing important work to the body of clemency literature. Next, I look at the origins of the clemency power and how it has fallen out of favor with recent presidents. Then, I consider Obama's sparse record on presidential mercy. I address each of the following questions: What types of criminal offenses has Obama deemed worthy of pardons? How has he used his power to commute sentences? What is the president likely to do with the clemency power in his remaining time in office? Literature Review Federal executive clemency, popularly referred to as the "pardon power, is a topic that attracts attention from scholars working in diverse fields. For example, a number of legal scholars have contributed to this particular literature. One of the most prominent attorneys working in the field is former Pardon Attorney Margaret Love (http://www.pardonlaw.com/), who has published several insightful pieces on clemency (Love 2010, 2012). Former Pardon Attorney Office staff attorney Samuel Morison set up a professional website (http://www.pardonattorney.com/) that contains essays focusing on various aspects of the clemency power. Law professor Douglas Berman maintains Sentencing Law and Policy, a blog that focuses in part on clemency decisions (http://sentencing.typepad.com). Two law schools have developed federal clemency--focused programs that allow their students to step outside academia and obtain practical experience. These programs train law students on the mechanics of clemency and pass on strategies for assisting clemency applicants with preparing the paperwork needed to request presidential mercy through the Pardon Attorney's Office--the president's administrative apparatus for clemency applications housed in the Department of Justice. In 2011, Professor Mark Osier established the first commutation clinic in the United States at the University of St. Thomas School of Law (Metzger 2011). More recently, The Catholic University of America's Columbus School of Law started the CUA Law/Ehrlich Partnership on Clemency, thanks to the relationship between the law school and former Maryland Governor Robert Ehrlich (Catholic University 2013). Journalists and political scientists have also made valuable contributions. Retired Pulitzer Prize--winning reporter George Lardner Jr. won an important legal case against the Justice Department over public access to rejected clemency applicants names (Doyle 2009) (1) and is cowriting a book on clemency (Lardner and Ruckman, forthcoming). …