Just as a president is entitled to pardon anyone convicted or accused of a crime, he is free to dismiss any petitions for clemency without offering an explanation. Indeed, he can choose never to issue any pardons or commutations of sentences at all. Still, it’s disappointing that President Obama so far hasn’t approved even one request for a pardon or other form of clemency.
It’s not that there is a shortage of claimants. Earlier this month, Obama formally denied 605 petitions for commutation of sentences and 71 pardon requests. It’s hard to believe that none of those was deserving of approval.
In the public mind, the president’s authority to grant clemency tends to be associated with high-profile and politically motivated grants of clemency, such as President Gerald R. Ford’s pardon of Richard M. Nixon for Watergate crimes, President Clinton’s scandalous pardon of the fugitive financier Marc Rich or President George W. Bush’s commutation of the sentence of I. Lewis “Scooter” Libby, the former aide to Vice President Dick Cheney who was convicted of perjury and obstruction of justice.
But presidents also have used the pardon authority to right wrongs and reward rehabilitation in much less prominent cases. They are aided in such decisions by the Office of the Pardon Attorney in the Justice Department, which scrutinizes claims for clemency and passes them along to the White House with recommendations. There are strict standards for clemency petitions submitted through the pardon attorney. For example, no petition for a pardon may be submitted until five years after a prisoner is released or, if no prison sentence was imposed, five years after conviction. Petitions for a commutation of a sentence are usually entertained only when no other form of relief is available.
Ideally, presidents would give great deference to the pardon attorney’s recommendations and take a liberal view of the clemency power, exercising it often and on the basis of clear standards. Their reluctance to do so likely reflects not the merits or demerits of particular petitions but the political liability of appearing soft on crime. That reality has led some advocates of more pardons to hope that Obama is waiting to announce grants of clemency until after next week’s election. If so, we hope his first exercise of his clemency power won’t be his last.