“Reaching further back in history, they’re there because the law is not perfect,” Ruckman said. “In the territories there were no distinctions between murder and manslaughter. Since the early 1900s our law has become more federalized and more elaborate; we’ve made more distinctions.”
Clemency gives the president leeway to forgive offenders who have paid their dues, and the power to right perceived injustices in the system.
Ruckman cited the sentencing disparity between crack and cocaine — something Obama has categorized as unjust — as a place where the president could be utilizing his clemency power.
“Presidents need to develop a pardon policy, and by that I mean, they need to pardon in a systematic way to attack particular problems,” Ruckman said. “A president might say, ‘OK, let’s pardon people who have received life sentences for non-violent first-time offenses.'”
Lee said that the majority of pardon candidates are vetted through a multi-step process before being approved.
“It is a very lengthy process,” Lee said. “The Department of Justice has an Office of the Pardon Attorney. Then the Department of Justice gives a recommendation to the White House. Of course, the White House doesn’t have to follow it.”
Lee and Ruckman both guessed that Obama’s first pardons will come around Christmas.
“What presidents tend to do is pile them up, so to speak, and then dump them in December,” Ruckman said.
By that time, he will have waited the third-longest of any president, rivaled only by Bush Jr., who held off for 702 days before exercising his clemency power, and Washington, who waited 1,811 days. But Ruckman said Washington can’t be compared with the others.
“The criminal law wasn’t federalized like it is today. Arguably he doesn’t even belong on the list,” Ruckman said. “If you exclude Washington, it’ll just be Obama and Bush.”