The historic clemency power of the U.S. President, set forth in Article II of the Constitution and interpreted by the Supreme Court to have few restrictions, has long been the subject of controversy and debate. From George Washington’s pardon of participants in the Whiskey Rebellion to Gerald Ford’s pardon of former President Richard Nixon, clemency’s political implications and consequences often garner the most attention. But, by deciding to commute a prison term or wipe out a conviction through a pardon, the president is acting functionally as a sentencer-in-chief and such sentencing decisions are worthy of careful review.
Donald Trump was certainly no exception to the tradition of presidents making waves through distinctive use of the clemency power, and the Federal Sentencing Reporter will be continuing a modern tradition of devoting a full issue to examining a president’s grants and considering clemency’s future. Notably, Trump generally did not concern himself with the recommendation of the Justice Department’s Office of the Pardon Attorney, which has long played a central role in advising the president on such matters. In addition to exploring the substantive clemency choices made by Trump, FSR‘s forthcoming June 2021 issue will also discuss what clemency process ought to be embraced by presidents to ensure the most effective and responsible use of this historic power.
FSR’s first extensive coverage of federal clemency actions appeared in a special double issue prompted by Bill Clinton’s high-profile and controversial pardons issued on his last day in office back in 2001. The decision by George W. Bush to commute the sentence of Administration official Scooter Libby in 2007 prompted another FSR issue on clemency as a form of sentencing power. And in 2017, FSR devoted a full issue to assessing Barack Obama’s remarkable and record-setting commutations resulting from the “Clemency Project” he set up toward the tail end of his second term.
Reflecting growing and bipartisan support for criminal justice reform, clemency powers and practice garnered considerable attention on the 2020 campaign trail. The Trump campaign ran a high-profile advertisement during the Super Bowl in February 2020 which highlighted Trump’s commutation of the life sentence of Alice Marie Johnson. Nearly every major Democratic candidate made mention of clemency in campaign platforms, and Joe Biden indicated he would seek to follow the path of Obama in his use of the clemency power. Among the issues to be discussed in the forthcoming FSR issue is how and when President Biden might use his powers as sentencer-in-chief in the months and years to come.