What is Clemency?
Presidential clemency is the constitutional process for national forgiveness. Clemency is one of the broadest areas of executive power afforded to any president. Article II, § 2, cl. 1 of the U.S. Constitution vests the president with the “Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” Article II of the Constitution makes it clear that the power to grant clemency is a core presidential power. The framers’ only limitation on the clemency power was to prevent its use in cases of impeachment. Keep in mind that the President’s clemency power only applies to federal—not state—crimes. The President can use this power to grant a “pardon” (typically—but not always—after at least five years have passed following the completion of the sentence), which essentially wipes away the conviction. The President can also use this power to grant a “commutation” of a sentence, such as to shorten a lengthy sentence to time-served, or to transform a death sentence into a life sentence or a term of years.
Why is Clemency Important?
Clemency is a vital part of the separation of powers. It allows a president to check both the legislative and judicial branches. When President Thomas Jefferson viewed the Alien and Sedition Acts as unconstitutional, his response was to pardon all those incarcerated under the Acts. The clemency power also allows a president to correct decisions of prior administrations with which the president disagrees. The clemency power thus allows the president to direct criminal justice policy without legislation.
A robust clemency power is essential to fairness in the criminal justice system. Previously, federal parole could address a variety of systemic and individual injustices arising from criminal prosecutions, such as wrongful convictions, overly harsh charging and sentencing determinations, and prison terms that extend well beyond the need for rehabilitation. But with the elimination of federal parole in 1984, there is no process for releasing those in federal prison who, through their rehabilitative efforts, no longer pose a threat to public safety. By reinstituting a forward-leaning clemency process, the system can more easily recognize those deserving of mercy.
Pardons are also critical to reintegrating the formerly incarcerated into society. A felony conviction dramatically reduces employment opportunities and earning potential. There are approximately 45,000 collateral consequences of a felony conviction imposed by federal, state, and local governments, ranging from the right to vote to access to housing. A full pardon can eliminate these consequences, and without it, economic and social opportunities for those who have supposedly paid their debts to society are foreclosed. At the same time, our economy is often deprived of an important source of labor: people coming out of prison.
What is the Current Process for Obtaining Clemency?
Currently, the Office of Pardon Attorney (OPA), located in the DOJ, gathers information and makes a recommendation on each individual clemency petition. Staff at OPA are required at the outset to seek the opinion of the local prosecutor who pursued the case. If that prosecutor recommends a denial, then petitions often receive negative recommendations at that point. The prosecutor can recommend a denial even though he or she might not have seen the clemency petitioner for decades while the petitioner was incarcerated in federal prison.
At the second step, the Pardon Attorney makes a recommendation. If the pardon attorney says no, the clemency petition will likely later die. The third stop is the desk of a staffer for the deputy attorney general (DAG), who does yet another review. The fourth stop is the DAG, who essentially supervises all criminal prosecutions at the DOJ and is a liaison between main DOJ and prosecutors. The DAG is probably the least likely person to second-guess the local prosecutor who recommends a denial, given the close working relationship between the DAG and prosecutors in the federal districts. By the time a recommended denial gets to staff of the White House Counsel, any hope for clemency is gone. The White House Counsel’s office has many other responsibilities, and it does not have the time or resources to run a full-blown clemency second-look operation. White House Counsel conducts the final review, with only favorable recommendations being presented to the president.
From Shon Hopwood, "How Joe Biden Can Fix the Broken Clemency Process," The Appeal, Jan. 11, 2021 [Link]