Focusing Presidential Clemency Decision-Making
The Article II Pardon Clause grants the President authority to award clemency to any offender. The clause contains only two limitations. The President cannot excuse someone from responsibility for a state offense, nor can he prevent Congress from impeaching and removing a federal official. Otherwise, the President’s authority is plenary. The clause authorizes the President to grant clemency as he sees fit, but the clause does not tell him when he should feel that way.
Historically, Presidents have generally used their authority for legitimate reasons, such as freeing someone who was wrongfully convicted, who is suffering under an unduly onerous punishment, or who deserves to be forgiven. Nevertheless, no President—nor the Department of Justice Pardon Attorney, who is ostensibly responsible for managing the clemency process—has ever recommended a rigorous standard for use when making clemency decisions. The Pardon Attorney has compiled a list of relevant factors, which is quite useful, but that list does not identify which factors are necessary and sufficient, nor does it assign those factors particular weights or an ordinal relationship. The result is that a President is left to act like a chancellor in equity by relying on his subjective assessment of the “totality of the circumstances.”
This Article offers a way to make clemency decisions in a reasonable, orderly manner that would systematize and regularize the Pardon Attorney’s recommendation process and presidential decision-making. Pardons and commutations differ from each other in material ways, and Presidents should analyze them separately. In the case of pardons, Presidents should answer a series of questions—an algorithm, if you will—that would guide them when deciding whether to forgive an offender. In the case of commutations, Presidents should make decisions on a category-by-category basis, rather than try, in effect, to resentence each offender. Together, those approaches would help Presidents make objectively based decisions that are consistent with longstanding rationales for punishment and the purposes of the criminal justice system. The hope is that, in so doing, Presidents will be able act justly and persuade the public that the clemency system is open to all, not merely to the President’s financial or political allies, cronies, supporters, or friends. The focused approaches suggested here should help Presidents create the fact and appearance of objectivity in clemency decision-making.