The Law Barack Obama and the Clemency Power: Real Reform on the Way?

Abstract

On February 9, 2014, the New York Times editorial board described the Obama administration as “one of the least merciful … in modern history.” Over the past year and a half, President Barack Obama has shown renewed interest in clemency. However, as of July 13, 2015, real reform remains elusive: Obama has granted less than 1% of pardon and commutation requests. Is anything likely to change in the remaining months of the Obama administration? In this article, I look for hints of Obama's plans by considering his clemency record in detail, paying particular attention to the types of offenses that have been deemed worthy of clemency and those that have not.

Constitutionalized Prerogative and the Pardon Power

“…Though Hamilton, and other Federalists, argued during the ratification period that the president was uniquely situated to utilize the power to bring insurrections to a swift halt by a “well‐timed offer of pardon” (, 447), the expediency of the pardon power was of only a minor concern and was intended to respond to those seeking an institutional check on the power. The pardon power was more often defended on the grounds that it was necessary to blunt the strict application of the law, and this justification for the pardon power has persisted with more recent assessments of the pardon power (Crouch ; see also U.S. Congress 2019). At the most fundamental level, the pardon power provided a remedy to the same type of problems solved by Lockean prerogative; in particular, that human endeavors were inherently fallible and that the executive power is empowered to act, and should act, to solve such flaws.…”

“…Executive clemency holds an exceptional place in American political thought as one of the most explicit examples of Lockean prerogative as well as one of the traditional prerogative powers specifically granted to the president within the U.S. Constitution. Recent scholarship on the pardon power has largely focused on the extent to which presidents have abused or underutilized executive clemency (Barkow and Olser ; Crouch ; ) or how the power has developed from its origins as a prerogative of the English monarchy (Ruckman ). However, presidential clemency can serve as something of a case study within the constitutional prerogative debate by showing how the development of a constitutionalized prerogative power has functioned.…”