President Obama, pictured here during the investiture ceremony of Attorney General Loretta Lynch, has made modest actions to reform mass incarceration, but he could be using his Presidential pardon power more aggressively. Credit Photograph by Carolyn Kaste r/ AP The orderly mind of Barack Obama appears to recoil at the vulgar world of pardons. The President is a consummate rationalist, a believer in systems and order. Pardons, in contrast, rely exclusively on the whim of the grantor. This Presidential power is descended from the concept known in Great Britain as the royal prerogative of mercy—three words that seem almost guaranteed to offend this President, singularly or especially aligned together.
But President Obama is starting to come around on pardons, or at least on commutations. (A commutation allows a convict to leave prison at a designated date; a pardon can also involve an end to a prison sentence but bestows a broader restoration of rights, like the right to vote or own a firearm.) Last week, the President announced that he had commuted the sentences of ninety-five federal prisoners and granted two pardons. In seven years, Obama has now issued a hundred and eighty-four commutations, more than his last six predecessors combined, but only sixty-one pardons, which is far less than most recent Presidents. (George W. Bush granted a hundred and eighty-nine pardons, and eleven commutations; for Bill Clinton, the numbers were three hundred and ninety-six pardons and sixty-one commutations.) Obama is moving in the right direction, but he has a long way to go. There are roughly two hundred thousand people in federal prison in the United States. Do they all belong there? Should only a few dozen have their sentences shortened?
Those questions answer themselves, as Obama himself knows. He has made the reduction of mass incarceration one of the touchstones of his final years in office. As he said, in a recent speech to the N.A.A.C.P. national convention, “Mass incarceration makes our country worse off, and we need to do something about it.” No one can stop the President from doing at least that. Since 2011, Obama has been stymied by the Republican Congress from undertaking major legislative initiatives, but the pardon power is absolute and unfettered. The President can pardon everyone, and anyone, he chooses.
Obama is a democrat as well as a Democrat, and surely something in him rebels at exercising absolute power on a grand scale. One problem with pardons is that Presidents have considered them in secret, springing the decisions on the public only after they have been made. In high-profile cases, like Gerald Ford’s pardon of Richard Nixon or Bill Clinton’s pardon of the fugitive financier Marc Rich, the political repercussions have been disastrous. But Obama could avoid this problem with some innovation—and sunshine. Over the last year of his Presidency, his Administration should publish the names of people being considered for pardons. In this way, members of the public can make their views known about the wisdom (or lack thereof) of letting each individual out of prison. All Presidents and governors (who also have pardon power) are haunted by the possibility that they might release someone who goes on to commit horrible crimes. (Former Governor Mike Huckabee of Arkansas pardoned several people who did just that.)
This public airing might well save Obama from making some poor choices, but it will also guarantee him a measure of political protection. Opponents of pardons will be able to speak now, or they’ll forever have to hold their peace. If Republicans offer blanket objections to broad pardons, they’ll be demonstrating that they simply want more people in prison, regardless of the costs in dollars, public safety, or lost lives.
Most importantly, this process could allow the President to end or reduce the sentences of many more prisoners than he has done so far. Obama could make the case for pardons or commutations on an individual-by-individual basis, or he could establish a broader rule—that, say, every nonviolent drug offender with just a single conviction, or possession of a certain quantity of drugs, would be eligible.
It’s true that a President alone can’t end mass incarceration. There are roughly 1.4 million people in state prisons and seven hundred thousand in local jails, and Obama lacks the power to free them by executive action. But just because he can’t do everything does not that mean he has to do nothing. A President can always lead by example—and so can a governor, as New York Governor Andrew Cuomo did this week. He announced a bold plan to erase the criminal records of juvenile offenders who were convicted of nonviolent felonies or misdemeanors when they were sixteen or seventeen and have spent at least ten years since without any additional convictions. Cuomo’s action could affect the lives of as many as ten thousand people, who may, for example, have had a harder time finding jobs because of their criminal records.
Obama should be considering action on this vast scale. When it comes to mass incarceration, he has been content so far to work around the fringes. He has asked Congress to consider reducing sentences for certain crimes. He has told Attorney General Loretta Lynch to restrict the use of solitary confinement in federal prisons. This are worthy, modest goals. But the pardon power, with its roots in the monarchy, allows a President to go big – and that’s exactly how Obama should go.
