Guiding Presidential Clemency Decision-making

Abstract

The Article II Pardon Clause grants the president authority to grant clemency to any offender for any reason he deems justified. The clause contains only two limitations. The president cannot excuse someone from responsibility for a state offense, nor can he prevent Congress from impeaching and removing a federal official. Otherwise, the president’s authority is exclusive and plenary. It is, perhaps, the only surviving aspect of the royal prerogatives. What the clause does not do is give the president a standard, a guideline, or a decision tree for making clemency decisions. Presidents have used that power for legitimate, traditionally accepted reasons, such as freeing someone who was wrongfully convicted, who is suffering under an unduly onerous punishment, or who has atoned for his crimes and turned his life around. Nevertheless, neither the president nor the Department of Justice Pardon Attorney, who is responsible for managing the government’s clemency process, has devised a standard for the president to use when making clemency decisions. The Pardon Attorney has compiled a list of relevant factors, but has not identified which ones are necessary and sufficient, nor has that official assigned those factors an ordinal relationship or different weights. The result is that a president is left to act like a chancellor in equity by relying on his subjective assessment of the “the totality of the circumstances.” This Article discusses the need to make pardon and commutation decisions in a reasonable, orderly manner that would systematize and regularize the Pardon Attorney’s recommendation process and the president’s decision-making. An objective approach would help the president make decisions consistent with longstanding rationales for punishment. The hope is that, in so doing, the president will be able act justly as well as to persuade the public that the federal clemency system is open to all, not merely to the president’s financial or political allies, cronies, supporters, or people he knows. At one time, presidential clemency was a way to wipe the slate clean and give the average person a second chance. It no longer serves that role. Clemency is a subject where we should turn back the clock.