President Obama's Last Clemency Push

In the waning hours of his presidency, Barack Obama used his clemency power to commute the prison sentence of Chelsea Manning, a former U.S. Army analyst who was convicted of espionage in July 2013 by a military court after she turned over a massive cache of defense and diplomatic records, then the largest single leak in U.S. history, to the organization WikiLeaks. Among the materials released by Manning was a video recording showing Iraqi civilians being killed in a U.S. helicopter attack in Baghdad in 2007.

According to a White House press release, along with abridging Manning’s 35-year sentence to end in May of this year, President Obama granted 208 other commutations and 64 pardons Tuesday, thus closing a second-term scramble to reduce the federal prison population and establishing him as the most clement president in recent history. Obama has issued the most combined commutations and pardons of any president since Harry Truman, and more than Reagan, Clinton, and both Bushes combined.

Obama’s decision comes after a sustained campaign to free Manning, who has tried to commit suicide twice. Manning has been living in austere conditions as a transgender woman in a male military prison, and has faced extended periods of solitary confinement deemed by a UN special rapporteur on torture as tantamount to torture. Obama has been under growing pressure from human rights activists to commute the sentence of Manning and her fellow leaker Edward Snowden, who disclosed information on a number of surveillance programs in 2013, on the grounds that their actions served the public interest. The administration warmed to clemency for Manning, but not for Snowden, who fled the country to Russia and has not been tried in a U.S. court. Republicans, including House Speaker Paul Ryan, immediately condemned Obama’s decision to commute Manning’s sentence, saying her actions “put American lives at risk.”

Although Manning is the highest-profile name among the clemency list issued by the White House, there are a few more prominent names. Retired Marine General James Cartwright, who leaked information to New York Times reporters about the classified Stuxnet computer worm, which was used to hamper Iran’s nuclear weapons program, and admitted to lying about the leaks to FBI investigators, was granted a pardon Tuesday. Oscar López Rivera, leader of the Puerto Rican independence group Fuerzas Armadas de Liberación Nacional, who was sentenced in 1981 for 55 years for sedition, received a full commutation. Rivera had previously rejected President Bill Clinton’s offer for partial commutation in 1999. Also on the commutation list is Dwight J. Loving, a former Army private whose death row sentence for the murders of two people in Fort Hood would have made him the first military execution in over 50 years. Loving’s sentence was commuted to life imprisonment.

Also notable are names not on the list. After a 2016 petition and campaign by activists, the Congressional Black Caucus, and his son, deceased black-nationalist leader Marcus Garvey was not granted a posthumous pardon. Garvey, a Jamaican-born Pan-Africanist leader in the early 20th century, was surveilled by the federal government’s long-running domestic spying efforts on black activists, and eventually brought up on federal mail fraud charges by a young J. Edgar Hoover and others. The charges led to his deportation from the country. Leonard Peltier, a Native American activist facing two life sentences, and Mumia Abu-Jamal, a black nationalist from Philadelphia serving a life sentence, were also not granted commutations or pardons. Both men were convicted in the killings of law-enforcement officers, but activists on their behalf contend their trials were tainted by racism and government subterfuge.

The vast majority of the remaining names on the White House’s clemency list are ordinary offenders that fit within the administration’s guidelines for clemency action: those convicted of nonviolent drug offenses who were given stiff federal penalties under older drug laws. The list of commutations includes around 100 people given life sentences for drug distribution or possession, with a handful of those including violent offenses or possession of a firearm.

Aside from the commutations, some convicted of non-violent drug charges were pardoned––unlike a commutation, a pardon wipes away post-conviction restrictions like being barred from voting or serving on a jury.

It is this last group of people, in addition to the more famous names, that the Obama administration hopes will help define its record on clemency. Obama’s clemency initiative has now granted over 1,300 commutations and pardons to mostly nonviolent drug-offenders.

In that initiative, the Justice Department completed the review of over 16,000 petitions, and was pushed along by activists in several criminal-justice organizations. Assuming no more midnight-hour commutations or pardons, Obama’s efforts will fall short of their demands to issue clemency for over 2,000 federal inmates.

Obama’s clemency efforts—along with a push to scale back private prisons—signal an administration and country willing to dial back at least some of its commitments to mass incarceration made during the War on Drugs. Also, his commutations of Mannings’s and Cartwright’s sentences come as an acknowledgement the criticism over the administration’s record of expanding Bush-era surveillance powers and its aggressive prosecutions of leakers.

But on Friday, Obama will be followed by a president in Donald Trump who has disavowed his clemency efforts, has pledged to ramp up commitments to federal detention of undocumented immigrants, and appears at the least unconcerned about the existing American domestic surveillance and whistleblower-prosecution apparatuses. Legacy is a tricky thing.