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.
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.
“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.”