First and most important: Take back control of the pardon process. The power to grant mercy may be the president’s alone, but the office of the pardon attorney operates out of the Justice Department. Under most administrations, before any request for clemency can land on the president’s desk, it has to survive review by a gantlet of people whose job it is to win convictions, not undo them. In some cases, the same prosecutors who sent a person to prison are asked to weigh in on granting that person mercy. It’s “akin to having Yankees fans pick the Red Sox’s starting pitcher,” wrote Mark Osler, a law professor at the University of St. Thomas School of Law who advocates for comprehensive clemency reform.
Prosecutors’ built-in biases are exacerbated by the fear of public blowback if any grant of clemency goes wrong — say, if a person commits a crime after being granted relief.
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Clemency Power ›
Presidential Pardons, Explained
President Trump has discussed potential pardons that could test the boundaries of his constitutional power to nullify criminal liability. Here’s some clarity on his ability to pardon.
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- May a president issue prospective pardons before any charges or conviction? Yes. In Ex parte Garland, an 1866 case involving a former Confederate senator who had been pardoned by President Andrew Johnson, the Supreme Court said the pardon power “extends to every offense known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency, or after conviction and judgment.” It is unusual for a president to issue a prospective pardon before any charges are filed, but there are examples, perhaps most famously President Gerald R. Ford’s pardon in 1974 of Richard M. Nixon to prevent him from being prosecuted after the Watergate scandal.
- May a president pardon his relatives and close allies? Yes. The Constitution does not bar pardons that raise the appearance of self-interest or a conflict of interest, even if they may provoke a political backlash and public shaming. In 2000, shortly before leaving office, President Bill Clinton issued a slew of controversial pardons, including to his half brother, Roger Clinton, over a 1985 cocaine conviction for which he had served about a year in prison, and to Susan H. McDougal, a onetime Clinton business partner who had been jailed as part of the Whitewater investigation.
- May a president issue a general pardon? This is unclear. Usually, pardons are written in a way that specifically describes which crimes or sets of activities they apply to. There is little precedent laying out the degree to which a pardon can be used to instead foreclose criminal liability for anything and everything.
- May a president pardon himself? This is unclear. There is no definitive answer because no president has ever tried to pardon himself and then faced prosecution anyway. As a result, there has never been a case which gave the Supreme Court a chance to resolve the question. In the absence of any controlling precedent, legal thinkers are divided about the matter.
- Find more answers here.
The gulf between presidents and their pardon decisions has confounded executives of both parties. One of the last pieces of advice the outgoing President George W. Bush gave the incoming President Barack Obama was to pick a pardon policy and stick to it. Mr. Obama didn’t heed the warning. He dithered for years before finally developing clear clemency standards late in his second term. The result: mercy for more than 1,900 people, many of them serving absurdly long sentences for low-level drug crimes. That was very good, but as long as the Justice Department maintains control over the process, it easily reverts to form.
It’s not enough simply to bring pardons back into the White House. Mr. Trump’s near total disregard of any process shows the danger in that. Instead, Mr. Osler proposes the establishment of a clemency board or commission with a direct line to the president, and staffed with experts in the field of criminal justice rather than with politicians worried about how their decisions might affect their electoral prospects. Board members should reflect the nation’s diversity in terms of race, geography and political ideology. Nearly all states incorporate the work of a board or commission in their clemency processes; not coincidentally, states generally do a much better job of handling their petitions than the federal government does.
Mr. Biden could create and staff a clemency board by executive order. He could also avoid Mr. Obama’s mistake by laying out clear, consistent standards for considering petitions early in his administration. What the Justice Department currently considers — the seriousness of the crime, whether the offender has expressed remorse and shown rehabilitation — is reasonable, but it often isn’t reflected in clemency decisions. (Certainly not those of Mr. Trump.)
Congress has an important role to play too. The pardon power is vast but not without limits. For instance, presidents may not violate core constitutional rights with their pardons, dangle pardons as a way to evade the justice system or offer mercy in exchange for bribes. Some constitutional scholars say they may not pardon themselves, although no president has yet tried to. To remind presidents that they are being watched, Congress can require the White House to issue a regular clemency report, as many states require as part of their process. It may also investigate individual pardons for possible abuse, as it did after Mr. Clinton’s pardon of Mr. Rich. And it can impose consequences, up to and including impeachment.
Speaking of impeachment, Mr. Trump has a few weeks left in office, during which he could choose to make at least some amends for his degradation of the pardon power by, say, considering the petitions of even some of the thousands of people still waiting. We’re not holding our breath. Real reform is more likely to come from Mr. Biden, who has his own amends to make. As a senator, Mr. Biden helped draft and championed many of the harshest federal criminal-sentencing laws of the 1980s and ’90s, laws that drove the nation’s prison crisis in the first place. He can’t undo the damage these federal laws have inflicted, but he can begin to repair it, and his own legacy on this issue, by reforming the pardon power from the ground up.