President Obama granted clemency to more people than any president in 64 years as part of his 2014 Clemency Initiative for drug offenders, according to the Pew Research Center. This initiative resulted in an unprecedented 35,544 petitions to the Office of the Pardon Attorney (OPA), which vets applications for clemency. Before leaving office, Mr. Obama granted 1,927 of these requests.
The issue is not whether Mr. Obama used his clemency as he saw fit. As president, he had the power to grant clemency to whoever he chose for whatever reason. The issue is whether that power was exercised fairly with respect to those who had legitimate legal and social reasons to apply for a pardon, had done so and were patiently waiting for a decision from the pardon attorney. These applicants ended up competing with thousands of drug traffickers the president decided deserved early release because of changes in the way we sentence those who break our drug laws.
The 2014 initiative forced OPA to set aside thousands of legitimately filed petitions for pardons, many of which did not fit Mr. Obama’s political narrative. This caused such a huge backlog at OPA that Pardon Attorney Deborah Leff resigned in January 2016, citing a lack of resources that prevented her from doing her job effectively. She was replaced by Robert Zauzmer, who developed a reputation for not even taking calls from legislators seeking status updates on pardon applications for constituents.
Professor P.S. Ruckman of Rock Valley College said in a recent NBC report that presidential pardons are “a part of our system of checks and balances” in the spirit of Alexander Hamilton, who wrote of the need for mercy. Regardless of what side of the aisle you’re on, we all recognize that society and laws change. When a law is violated, the court considers motive and impact of the crime on sentencing. It is only ethical for a president to consider a clemency to make a political point once he’s granted pardons to right a legal wrong or give a good person a much-needed second chance on a case-by-case basis.
Clemency is ordinarily granted in extraordinary cases in which the criminal justice system has failed or because of an executive recognition that an individual has truly reformed, but being forced to serve an unusually onerous sentence when he or she should be freed and reintegrated into society. Many, perhaps most, requests for clemency have been granted to men and women who have already served their sentences, but are seeking a restoration of their rights and a clean record based on their post-release behavior. Others result from a recognition that when society no longer considers an offense deserving of the punishment meted out to lawbreakers in previous years, it is sometimes reasonable to go back and apply today’s standards to past behavior.
Mr. Obama’s initiative, however, has had truly serious consequences for the nation’s capital. The District of Columbia (D.C.) has a municipal government and criminal code; but no governor or independent court system. As the District is not a state, it lacks the gubernatorial pardon process that exists in every state. All D.C. requests for clemency end up at the Office of yhe Pardon Attorney competing with federal cases nationwide. As a result, only 153 D.C. applicants have received clemency since the Eisenhower administration; including only five of almost 2,000 who received clemency from Mr. Obama. In contrast, Vermont, which has 30,000 fewer people than D.C., has pardoned 208 people since 2010 alone.
In recent years, D.C. laws have changed in many respects; the legalization of recreational marijuana, and the Supreme Court declaration that D.C. gun laws unconstitutional. Consider the hundreds of gun permit holders from neighboring jurisdictions (many from military and law enforcement backgrounds) arrested in the District under a law that has been since overturned by the Supreme Court. Years have passed and many of them are upstanding members of society, but cannot have their records as convicted felons cleared through executive clemency. They don’t fit the narrative and their applications are simply ignored. Those arrested under the old D.C. marijuana laws still have to disclose a drug offense on job applications regardless of their records since or the fact that in today’s world, they might not even have risked arrest.
Mr. Obama ultimately granted clemency to only 5 percent of those who requested it. Disturbingly, among those were Chelsea Manning, who sold secrets endangering the lives of military and intelligence officers, and Oscar Lopez-Rivera, a convicted terrorist who helped establish the FALN, a violent separatist group best known for carrying out a 1954 shooting in the U.S. Capitol, a 1975 bombing in Manhattan killing four, and a 1982 bomb that maimed an New York police officer. Someone arrested years ago on what might today be viewed as a minor infraction of an unfair line seeking a pardon must be wondering just why these people received precedence.
President Trump can work to restore fairness to the clemency process by bolstering the Office of the Pardon Attorney, reviewing cases for legal considerations, and dedicate staff to cases from D.C. Superior Court. In doing so, he can help many Americans with obsolete criminal records who have shown themselves valuable members of society.
• A. Benjamin Mannes is a national subject matter expert in public safety. He is a member of the Homeland Security Advisory Board at St. John’s University and the Criminal Justice Studies Advisory Board at Peirce College in Philadelphia.