Obama’s pardon drought ranks as one of the longest in U.S. history

President Obama, during his 533 days in office, has issued no pardons and commuted no sentences. Only four other presidents — George Washington, John Adams, Bill Clinton and George W. Bush — waited longer to use their constitutional power of clemency, and Obama is on track to pass at least two of them.

If no clemency actions are taken by Sunday, July 11, Obama will surpass Adams’s 536 days. If Obama waits until Christmas to approve his first pardons, as experts believe he will, he’ll pass Clinton’s 672 days on Nov. 24. The average wait until first pardon, across all 43 presidents (including Obama’s time to date), is 133 days.

Many may not find this troubling, but PS Ruckman Jr., the editor of the Pardon Power blog who compiled the statistics, says that’s probably because clemency is fundamentally misunderstood.

The many forms of clemency:

There are several different clemency powers granted to the president, but two are most common today.

  • Pardon: Puts an end to all punishment and restores the recipient’s civil rights completely. Most pardons are granted to clear the records of individuals whose sentences are long past served.
  • Commutation: Lessening of a sentence, for example, from a death penalty to life in prison, or from a prison sentence to time served. Commutations can be very controversial and are rare today.

“There’s this perception that the pardon is this get out of jail free card,” Ruckman said.

In reality, Ruckman said about 90 percent of clemency actions are granted to those who, having long ago reformed, would simply like their debt to society marked “paid,” and their civil liberties, such as the rights to vote, hold public office or own a firearm, returned.

“They served their time, they’ve been integrated back into society, and they’re just getting their rights restored,” Ruckman said. “So nobody’s getting sprung from jail.”

Applications have skyrocketed in recent years, according to the data compiled by Ruckman. From 1950 to 1990, the total number of applications for clemency never topped 2,000. The graph then takes a sharp curve upward and spikes to more than 6,500 in 2009.

“There’s a sense, actually, that the need for clemency is greater than ever. And yet we’re using it less,” Ruckman said. “More than a few experts have described the pardon process as broken.”

The answer to why presidents are tentative to use their clemency powers is complex, but much of their caution may hang on public opinion.

“It’s a no-win situation for presidents,” said Ken Lee, a lawyer with Jenner & Block LLP, who assisted with pardons as former associate counsel to President Bush.

Examples of blowback that can be caused by pardons include Clinton’s pardon of commodities trader Marc Rich on his last day in office, and George H.W. Bush’s pardon of officials indicted during the Iran-Contra affair.

Ruckman and Lee both make the case that presidential clemency, authorized directly by Article II of the U.S. Constitution, should be utilized with less hesitancy.

“There’s a reason why the framers included the pardon power in Article II,” Lee said. “I think it is a very important part of our criminal justice system.”

Originally, Ruckman said that the power of the pardon was partially intended to fill in the gray area between black-and-white laws.