Opinion by Mark Osler, CNN
(CNT) City News Talk #us-news
(CNN) Not long after the presidential election, an entirely predictable event could end up dominating the news and lighting up social media. Win or lose, President Donald Trump may well seek to pardon members of his family, officials in his administration, and possibly himself — even, as Gerald Ford did for Richard Nixon, before any of them are convicted of anything. For what seems like the umpteenth time in recent memory, clemency will very briefly become the subject of the nation’s intense focus.
Because I’m someone who studies and advocates in the field of clemency, I’ll get a lot of calls if that happens. Mostly, people will ask “Can he do that?” My response will be, “He just did.” Clemency, as structured by the Constitution, has no check or balance other than politics. And, in yet another political cycle, we are utterly failing to employ that lone check on this power of kings. Our intense focus on clemency should happen in the heat of the campaign rather than once it is over.
The Constitution gives the president sole discretion over clemency, a remarkable and uniquely unchecked power. Historically, at its best, presidents have used it to smooth over the roughest edges of criminal justice. For example, President Gerald Ford used it to grant thousands of conditional pardons to Vietnam-era draft evaders and deserters after the exigency of that war was over, and President John F. Kennedy used it to shorten the sentences of some sentenced under a draconian marijuana law. The power of clemency should be used as part of a broader project of criminal law reform, reaching those who have been forgotten.
Maybe I missed it (I didn’t), but clemency has not been the focus of a question at a presidential debate in the past few decades. In the recent town halls, no “undecided voter” has pressed a candidate for their views on how the pardon power should be employed. In interviews with President Trump and Democratic nominee Joe Biden, journalists seldom seem to ask about it. Instead, we just wait and let everyone’s head explode when a president misuses this tool of mercy. Even in the last debate, neither candidate talked about how they would use clemency prospectively, even in a heated discussion on criminal justice.
Trump and Biden present very different issues relating to clemency (which includes the power to shorten sentences through a commutation or forgive convictions through pardons). Trump already has shown his cards: Even taking into consideration the commutations granted last Wednesday to five worthy petitioners, his use of the pardon power has mostly favored friends and Fox News celebrities. Even his much-celebrated commutation and pardon of Alice Marie Johnson came about only after another reality television star, Kim Kardashian West, intervened. Biden, meanwhile, is a blank slate. The concern some may have with him is that he will do too little, at a time when over-incarceration is being critiqued by experts and a broad array of citizens on both the left and right.
While interviewers continually (and appropriately) pepper Trump with questions about whether he will relinquish power if he loses, it is rare that anyone asks him who he might pardon after the election, despite the long and positively bizarre track record he has established.
Similarly, Joe Biden hasn’t been pressed on the issue, and he certainly doesn’t seem to have thought much about it: In response to a general question about criminal justice by NBC’s Lester Holt at a town hall, Biden claimed that the Obama administration granted clemency to “18,000 people.” He was off by about 16,000 (he did better in the last debate, citing the number as “over 1,000”). It could be that Biden overestimates the effectiveness of the Obama clemency initiative, which offered too little, too late. That well-intentioned project began only after years of inaction, as Obama granted just one commutation of sentence in his first five years. It also failed to reach so many good cases that when Trump’s First Step Act enabled 2,387 crack offenders to be released early, it amounted to far more than the Obama clemency program did, even though both projects targeted the same group. Clearly, Obama left too many people behind.
Failing to focus on clemency when it matters also lets candidates off the hook for any specific plan for reform. And reform of every part of a system that has enabled systemic racism and unduly long sentences is important. Right now, the clemency review process has seven steps, is controlled by the Department of Justice (conflicted because it sought the over-long sentences in the first place), and simply doesn’t work. There is broad support for the formation of a clemency review board to advise the president, and that idea even made it into the Biden-Sanders unity plan and the Democratic platform. Biden, though, hasn’t mentioned it (at least in the forums I have reviewed)— in large part because no one has asked.
Even if other criminal justice reforms are enacted, clemency must be reformed as well. For one thing, other reforms don’t do what one form of clemency, pardons, can do: free people from the restrictions of a conviction after they have completed a sentence. For another, reforms that send cases back to the sentencing judges for review too often exacerbate disparities. After all, judges who are tough at sentencing are less likely to give a break later, meaning that those who come before them could be disadvantaged. Clemency can be a way to reach those twice-victimized.
So c’mon people! This, the last week before the election is the last possible moment to talk about clemency in a meaningful way. Journalists need to ask candidates about this directly, and the rest of us need to press them to do so. And next time around, we need to make that discussion a part of the primaries when we consider our choices and interact with candidates in America’s cafes, churches, and community centers. It’s not like it’s boring, after all: Clemency represents nothing less than the most powerful person in the world showing mercy to the least powerful people in the world, and is alone in our constitutional system in living out a value nearly universally embraced by Americans. We believe in mercy, but we are almost out of time to discuss it when it really matters.