The Future of Presidential Clemency Decisionmaking

Abstract

The Framers gave the president the clemency power when the federal government and the nation were in their infancy. The president has far more demands on his time today than George Washington did in 1789. The time necessary to make clemency decisions, even if done properly (and it has not always been done that way) alone could keep a large number of aides busy full time, let alone exhaust a chief executive troubled by the prospect that too many innocent people are rotting in prison or that too many people have been sentenced to the slow death of unnecessarily long terms of imprisonment. Accordingly, the question is whether the president should leave clemency judgments to others, particularly ones who are professionals at sentencing.

Some scholars have suggested reinstituting some form of parole. Yet, I think that we not will see a rebirth of parole any time soon. The criticisms that persuaded Congress to abandon parole in the Sentencing Reform Act of 1984 have not disappeared or lost their force. Proof can be seen in the fact that, during the debate over the First Step Act of 2018, neither the House of Representatives nor the Senate seriously considered reinstituting parole to address the overcrowding that federal prisons have witnessed over the last decade-plus. Other scholars urge Congress to adopt a “second-look” resentencing system. That also is unlikely. The suggestion that Congress reinstitute some type of second-look mechanism would be scorned as the attempted resurrection of parole under an alias. Indeed, the First Step Act approached this issue by using well-settled good-time and earned-time credit systems to decide whether and when to release prisoners, not a second-look mechanism.

A third option, however, can be found in a provision of the First Step Act modifying the gatekeeper role played by the Federal Bureau of Prisons (BOP) since the Sentencing Reform Act of 1984 went into effect. An argument can be made that district courts now can resentence prisoners because prisoners can now go to court to argue that “extraordinary and compelling reasons” justify their early release without needing the BOP to ask a court for that relief. That type of change to the law, however, is far from the type of interstitial fleshing out that Congress traditionally delegates to others. Nonetheless, it remains to be seen how the Supreme Court will resolve that issue.

Keywords: Clemency, Pardon, Commutation, First Step Act of 2018, Compassionate release