Clemency 2.0

Abstract

A trope heard throughout criminal justice circles today is that the system is a dystopia. Although most of the discussion and proposed remedies have centered on sentencing or release, this article focuses on clemency, which has become a controversial subject. The last few Presidents have rarely exercised their pardon power or have used it for ignoble reasons. The former withers the clemency power; the latter besmirches it. President Obama sought to kick start the clemency process through the Clemency Project 2014, which sought to provide relief to the 30,000 crack cocaine offenders unable to take advantage of the prospective-only nature Fair Sentencing Act of 2010. That initiative, however, is unlikely to jump-start the clemency power since it is quite limited — to drug offenders unable to benefit from the new crack-to-powder sentencing ratio. But the vast expansion in the size of the federal correctional system, combined with the corresponding increase in the costs of federal corrections, may spur the president to renew his resort to clemency. If so, the question becomes, How?The discussion proceeds as follows: Part I traces the history of the clemency process, focusing on the President’s Article II power to grant an offender mercy. Part II will ask why the clemency power has fallen into desuetude or disdain over the last few decades, and Part III will discuss whether clemency is likely to be reborn in the near future. Part IV will conclude by recommending that the problem lies not in the power it-self, but in the process by which cases are brought to the President for his review and maybe in the people we have elected to make those decisions.