THE BLOG

The Demise of Presidential Pardons

01/03/2013 11:56 am ET | Updated Mar 05, 2013
AP

Since President George Washington issued the first presidential pardon in 1794 to leaders of the Whiskey Rebellion, subsequent presidents liberally wielded their authority to grant executive clemency and commutation of sentences.

Modeled after the English Kings' royal decrees of clemency, framers of the U.S. Constitution considered judicial forgiveness important enough for inclusion in that historic document . Originally controversial when the anti-Federalists feared a repeat of royal abuses in favor of politically inspired clemency, Alexander Hamilton defended presidential pardons in Federalist Paper No. 74 citing "humanity and good policy" and that without "easy exceptions," "justice would wear a countenance too sanguinary and cruel."

More than 200 years later, as incarceration rates soared with the 1980s' war on drugs, 2.3. million adult Americans were imprisoned by 2006, presidential pardons on federal offenses lost much of their redemptive value. By 2008, 90.7 percent of federal inmates were charged with non-violent drug related offenses and by 2009, federal arrests rose dramatically with 46 percent immigration violations and 17 percent drug-related. Not coincidentally, since the 1980s substantially fewer pardons have been approved by recent presidents.

In an era with relatively few incarcerations compared to the general population, President Thomas Jefferson pardoned 119 offenders, James Madison 196, James Monroe 419 and Andrew Jackson 386 during their eight years as president while John Quincy Adams pardoned 183 during his one term as did John Tyler who excused 209, James Polk 268 and Abraham Lincoln who pardoned 343 during their four-year terms.

Today, pardon petitions on behalf of federal inmates are reviewed by the Pardon Attorney with the Department of Justice who makes clemency recommendations directly to the president. Petitioners must have served at least five years of their sentence before requesting clemency.

Until recently, a history of pardons granted by every occupant of the Oval Office (with the exception of Presidents Harrison and Garfield, who each died early in office) reveals that each president, regardless of political persuasion, understood that a pardon or sentence commutation was an opportunity to correct judicial error or a miscarriage of justice but, more importantly, was an established response from a compassionate country towards those Americans who had strayed off course and deserved a second chance.

As incarceration rates hovered under 50,000, President Woodrow Wilson granted 2,480 petitions (including commutation of sentences) during his eight years in office while Calvin Coolidge approved 1,545 between 1923 and 1929 and Herbert Hoover excused 1,385 during his four years. During Franklin Delano Roosevelt's 12 years as president, 3,307 Federal prisoners were pardoned, Harry Truman excused 2,031 including Japanese Americans who resisted the WWII draft, Jimmy Carter pardoned 563 in four years including amnesty for all Vietnam War draft dodgers, and Gerald Ford pardoned former President Richard Nixon who had not been formally charged or convicted of a crime.

Incarceration rates remained relatively stable until President Ronald Reagan's election brought a mean-spirited brand of conservatism to the country that adopted harsh mandatory sentences on first-time non-violent drug-related crimes, longer sentences than many other countries and elimination of parole on federal charges. During Reagan's eight years as president, 406 petitions were granted. President George H.W. Bush granted 77 pardons during his one term, including six Reagan officials convicted in the Iran Contra scandal; Bill Clinton approved 457 pardons, including 16 FALN members; and George W. Bush granted 200 pardons during his eight years in office including clemency for convicted vice presidential aide Scooter Libby.

It may come as a shock to some of the president's supporters that his only presidential pardon in 2012 was for Cobbler, the Thanksgiving turkey, in an apparent indifference to thousands of inmates hopeful of a blanket release for marijuana possession or clemency for first-time non-violent drug "conspiracy" offenders. As if to refute the notion that the president is a closet liberal, the 22 pardons he granted during his first four years in office (including one commutation) gives President Obama the least generous number of presidential pardons in the country's 235-year history.