The Power of the Presidential Pardon

Though he bemoans bloated prisons and unfair sentencing, the president has barely used the tools at his disposal. But that might be about to change.
A first-time offender caught selling pot, Weldon Angelos is serving a 55-year sentence under federal "mandatory minimum" laws. (Courtesy of weldonangelos.org)

President Obama on Wednesday will pardon a Thanksgiving turkey. Which makes this a good time to ask why a liberal constitutional lawyer who bemoans the bloated prison system and proclaims that "life is all about second chances" is—on the matter of clemency—one of the stingiest presidents in U.S. history?

Put another way: If a turkey deserves a second chance, why not Weldon Angelos?

Angelos was sentenced in 2004 to 55 years' imprisonment for possessing a firearm in connection with selling small amounts of marijuana. He didn't brandish or use a weapon, nor did he hurt or threaten to injure anybody. And yet the father of young children and aspiring music producer was given an effective life sentence because of a draconian mandatory-minimum federal law.

Even the judge on his case, Paul G. Cassell, found the sentence "cruel and irrational." While urging Obama to reduce Angelos' punishment, the Republican-appointed judge wrote, "While I must impose the unjust sentence, our system of separated powers provides a means of redress."

More than almost any president, Obama has failed to exercise that "means of redress" enscribed in the Constitution, the presidential clemency. But that may be changing. The White House is considering a broad range of clemency reforms.

Why Is This an Issue?

According to an analysis of Department of Justice data published by Reason.com, only three presidents made less use of the clemency power than did Obama during their first terms: George Washington, who had little cause to grant clemency in the nation's first days; William Henry Harrison, who died of pneumonia a month after taking office; and James Garfield, who was shot four months into his presidency.

After granting 17 pardons this year, according to the DOJ website, the total for Obama's presidency stands at 39 pardons (which clear people's records, typically after they've completed their sentences) and just one commutation (which shortens a prisoner's sentence).

As you can see from the graphic, Obama still ranks at the bottom historically, and his record extends a trend of presidential intolerance that dates to the tough-on-crime demagoguery of Presidents Reagan or Nixon—both of whom, ironically, were more generous with clemency powers than Obama.

"In Federalist 74, Hamilton made clear why the president had the power to pardon: Mercy, particularly when sentences are too harsh. It's the way of humans, we overreact sometimes," said Mark Osler, a University of St. Thomas (Minnesota) professor and former federal prosecutor in Detroit who wrote Angelos' broadly supported petition. (Disclosure: Osler is a friend of mine.)

The issue is freighted with politics. In 1988, Republicans attacked Democratic presidential nominee Michael Dukakis for a Massachusetts furlough program that allowed convicted murderer Willie Horton to escape and commit more crimes. Two decades later, rivals skewered GOP presidential candidate and former Arkansas Govenor Mike Huckabee for his role in the release of convicted rapist Wayne Dumond, who raped and murdered another woman after leaving prison.

Obama has a particular political problem. In early 2001, Bill Clinton granted a spate of unseemly pardons and commutations in the final days of his presidency. The most controversial act of clemency went to financier Marc Rich on the recommendation of Eric Holder, who is now Obama's attorney general.  

Presented by

Ron Fournier is editorial director of National Journal.

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