Understanding Clemency: History, Impact, and Biden’s Potential Legacy

By Anika Krieger

As President Biden’s term winds down, he has an extraordinary opportunity to grant clemency to a large number of individuals. The authority to grant clemency is one of a president’s most significant constitutional powers. Acting broadly on clemency will help to recognize the power of rehabilitation and second chances, and it will advance racial justice by rectifying unjust and inequitable sentences. But what is clemency? We explore it below.

Clemency Takes Several Forms: There are two ways “clemency” is conferred upon an individual: The president can commute their sentence, thus reducing their remaining time of incarceration, or the president can pardon them, which means that their original crime is forgiven and any current or future punishment stemming from that crime disappears (pardons can only be issued five years after any imposed sentence has been completed). Both forms of clemency usually require a petition to a person in power, such as a governor for state crimes or the president for federal crimes.

A Long History: Clemency petitions for federal crimes are reviewed by the Office of the Clerk of Pardons, which was established within the Department of Justice in 1870. But in a true case of “the buck stops here,” only the chief executive can decide to commute a sentence or pardon a federal conviction. Because of that, how the privilege is exercised varies widely by administration. For example, President Trump granted 237 acts of clemency (143 pardons and 94 commutations) during his first four-year term, while President Obama granted 1,927 petitions during his eight years in office. Historically, Presidents George H. W. Bush and George W. Bush granted fewer petitions than Trump, while Presidents Wilson, Roosevelt, and Truman granted more than Obama. Grants of clemency can happen at any time, but they are most prevalent — and most publicized — at the end of an elected leader’s term. And like in “The West Wing” episode “The Ticket,” it is often done in dramatic fashion in a president’s final hours. For example, President Clinton granted 177 clemency petitions on his last morning in office.

Use Of Clemency to Address Changes in the Legal Code and/or in Public Perceptions of Crime: Several presidents have used pardons to “right wrongs” that occur as our judicial system evolves. Many of President Franklin D. Roosevelt’s prodigious clemency offers were related to convictions under the Prohibition-era laws that he himself repealed and for those convicted of “sedition” for vocally opposing the United States’ involvement in WWI. Currently, many advocates, including organizations like The Leadership Conference, have pushed presidents and governors to pardon convictions under since-changed marijuana laws. Over time, people’s perspectives on drug use and the mandatory minimum sentencing associated with it have changed. For example, 74 percent of Americans live in a state that has legalized recreational use of marijuana, and 79 percent of Americans live in a county with at least one dispensary. There are an estimated 10,000 citizens incarcerated in federal facilities for an activity that is fully legal today. Like those who defied prohibition laws nearly a century ago and were pardoned by Franklin D. Roosevelt once consuming alcohol was no longer a crime, this population must now be considered for executive clemency. In addition to changing laws, the use of science to prove one’s innocence has improved dramatically over the years. Black and Hispanic people are statistically more likely to be prosecuted for marijuana use and are more likely to be given a mandatory minimum sentence, so a widespread pardon would be especially significant in remedying harm to these marginalized communities. Currently incarcerated individuals who have been proven innocent through exculpatory DNA evidence, but who still languish in prison due to court backlogs and sluggish bureaucracy, are also compelling candidates for commutations and pardons.

Racial Disparities: Regardless of the reason for clemency, petitioners who are white and wealthy are four times as likely to be approved for a pardon than non-white petitioners. There are many reasons for this. One might be that petitioners with letters of support from lawmakers — which is more feasible for a wealthier person — have improved chances of success. Other reasons might be that metrics that are more difficult to quantify, like the petitioner’s level of expressed “remorse” and the “stability” of their home life, are strongly considered. After a ProPublica report on pardons was released in 2011, the Office of the Pardon Attorney (OPA) conducted a study of pardons issued (though this study did not include sentence commutation) and found that petitioners who were “more likely” to receive a pardon were white men who pled guilty to a white collar crime, had a college degree, served in the military, were financially secure, and were church-going. They were also less likely to have been fired from a job or have experienced substance use issues after conviction. While the report gave an in-depth snapshot of the federal clemency process, it did not offer ideas about how to level the playing field so that more people of color — who are already disproportionately convicted of crimes — can avail themselves of this constitutionally enshrined right. 

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The power to pardon is used differently by each president. Some use it to reward supporters, while others use it as a way to right wrongs as our penal code evolves. President Biden could use his remaining time in office to grant every meritorious clemency petition and right at least some of the wrongs that disproportionately cause harm to Black, Latino, and other marginalized communities.  

Anika Krieger is a fall 2024 undergraduate intern at The Leadership Conference on Civil and Human Rights.