One of the notable issues with the Obama Administration when it comes to prison reform has been a distinct reluctance to get involved in the process through Presidential pardons, with a paltry nine in total through the second half of FY2011. Critics wondered why the President was so reticent to issue pardons, especially in cases where there was a very clear argument for clemency in the face of extremely strong evidence. When people are dealt an injustice through the justice system, one way to remedy that is to cut through the tape, when applicable, with a pardon from the appropriate authority.
Yet, what many of these critics ignore is that this is also an extremely delicate political process, a complex dance of people, priorities, and politics that cannot be neatly swept aside in the interest of justice, much though we might long for this to be the case. The President receives thousands of petitions for clemency over the course of an administration, and each is carefully evaluated by a legal team that comes up with recommendations for the best ones to consider granting.
These recommendations consider the specifics of the case, available evidence, situational factors, and, yes, the political repercussions of granting clemency, an especially vital concern to a President in the first term. Had the President issued a large number of pardons from 2008-2012, he would have been heavily criticised for being soft on crime, and every single one of those pardons would have been gone over with a fine-toothed comb by opposition researchers looking for something, anything, to play gotcha with. All it takes is one case involving a cop killer, or a murderer who killed his wife, or a case with particularly horrific circumstances, and sentiment can change radically.
The President clearly believes in the justice system, though he recognises that it has flaws and is in need of reform. Clemency is not really the best route to penal and justice reform, because it doesn’t address the larger issues at work here. Yes, it makes a difference in the life of one prisoner and that person’s family and loved ones, but a utilitarian approach must consider the larger impact of a given pardon. If the President issues a pardon, there needs to be a corresponding explanation and preparation for the inevitable assault on the decision. And the President, along with the legal team, needs to consider whether the pardon will help or hurt the interests of other prisoners in the same position, as well as larger goals for reform.
Over virtually the same period of time in his administration, according to the Department of Justice, President Bush granted just seven pardons. He escalated the number considerably over the course of his second term, eventually granting 189 pardons and 11 requests for clemency. A similar pattern can be seen at work with Clinton, who granted the vast majority of his 396 pardons in the last two years of his administration. This is not coincidental; both Presidents had their eyes on reelection, and also had concerns about how pardon activity might affect the midterm elections.
Looking further back into DOJ records on two term Presidents, Reagan bucked the trend a bit with fairly consistent numbers throughout his Presidency. Nixon, meanwhile, was on track for higher pardon statistics in his second term before he left office, while Eisenhower also granted more pardons in his second term in office, as did Truman. In over 60 years, most Presidents who served for two terms, in other words, followed a fairly consistent pattern when it came to pardons, which means we will probably see an uptick in Presidential pardons in 2013 and 2014, with even more in 2015 and 2016, when the political stakes aren’t as high; Obama doesn’t have to think about a third term, and after the mid-term elections, he can be a little more free with his pardons.
But not too free. As the 2012 election showed, the United States is deeply polarised and the Democrats may have difficulty holding on to the White House in 2016 if the Republicans are able to field a viable candidate and develop a strong electoral strategy. The President will need to consider how his actions in office might affect a Presidential hopeful, and whether he’ll need to temper his inclinations in the interest of supporting the larger goals of the Democratic Party.
Because while this should just be about a man in an office looking over requests for assistance, it’s not. It’s about a lot more than that; it’s about the office itself, not just the man who holds it, and the complex systems that surround that office, and the threads of power and control that run through US society. Which means that sometimes the man in the Oval Office can’t do the right thing, but must do the politically necessary thing, no matter how much it may go against his inclinations or beliefs.
I would like to see more Presidential pardons in the coming years, and more of a direct engagement with the urgent need for reform coming from the White House as well as through other channels. But I understand why these things move slowly, and I’m aware of the complicating factors that make it difficult to evaluate petitions for clemency and pardons, and to make hard decisions about them. The responsibility here is not on the President alone, but on society as a whole, which needs to come together on the issue of judicial and penal reform if it expects to see meaningful change.