A day before leaving office, President Barack Obama broke one of his own records. By using the president’s pardon powers and shortening the prison sentences of 330 prison inmates convicted of drug crimes, he made Thursday the biggest use of clemency by a president in a single day in US history — breaking a record he himself set earlier in the week.
It’s the culmination of a year-long effort to use the president’s clemency power to get hundreds of people — most of them nonviolent drug offenders — out of prison sooner. And it tops off another presidential record: With 1,927 people granted some form of clemency, Obama has used his clemency powers more than any president since Harry Truman (excluding Gerald Ford’s clemency for thousands of Vietnam War draft dodgers).
Depending on how you look at it, Obama’s effort in the twilight of his presidency is either a historic act of criminal justice reform — or too little too late. Obama’s rejected thousands of petitions for reduced sentences, and there are still thousands more waiting for review — and the Trump administration, under Attorney General–nominee Jeff Sessions, is extremely unlikely to give them a second look.
The Thursday actions are the last batch of clemency approvals that Obama will grant. But while it’s now clear that Obama’s done something very significant indeed, it’s also near-certain that it will, in some ways, fall short.
Obama’s last-minute clemency push
The president’s power of clemency — which includes both officially absolving people with criminal convictions of their crimes (pardons) and reducing sentences of people currently incarcerated (commutations) — is established in the Constitution, and it’s very broad. So even though pardons and commutations are given to individual people, it’s arguably the most direct tool the president has to reduce mass incarceration if he so chooses.
In the last year of his presidency, Obama has stepped up to the plate. He’s used the pardon power to reduce more sentences than any other president — thanks almost entirely to his administration’s actions over the past year.
Obama’s been a critic of mass incarceration, or at least of disproportionate sentences for drug crimes (which are the most common type of crime among federal prisoners), since he came into office. But for the first several years of his presidency, he was historically stingy in using the pardon power to help prisoners he claimed were serving unfair sentences.
The change from then to now is a story of how easy it is for a single federal official to slow down a process — and how hard it is for a single official to speed it up.
For the first term of his presidency, the head of the Office of the Pardon Attorney was a “tough-on-crime” holdover from the George W. Bush administration. The chief pardon attorney was so resistant to pardoning federal prisoners that in at least one case he withheld relevant evidence that would have made a pardon applicant look better when presenting the application to Obama for review.
In early 2014, the Obama administration decided it would do a 180 on the pardon office — and try to use it as a way to affirmatively get people out of prison. It replaced the pardon attorney with a prisoners rights advocate, and encouraged thousands of federal prisoners who’d been sentenced under now-obsolete laws or policies to apply to get their sentences reduced to current levels.
The applications came in. The approvals did not. It turned out that using the pardon power to grant big batches of commutations wasn’t just a matter of who was at the head of the pardon office, but how willing Department of Justice leadership and the White House were to take risks. (When politicians are afraid that just one person they release can go on to commit another crime, it makes it hard to release anyone at all.)
In early 2016, the pardon attorney Obama had hired to oversee the commutation push quit — with a letter making it clear that she didn’t feel the administration was keeping its promises on clemency. Days after her resignation, the commutations picked up. And they’ve barely stopped since.
Thousands of prisoners are still waiting — and President Trump is unlikely to help
Obama didn’t approve all the petitions he got. As of late December, nearly 14,000 applications for commutations (many of them submitted per the White House’s 2014 request) were still pending, along with more than 2,000 applications for full pardons. And the administration had already formally denied more than 16,000 petitions.
Obama could have approved every one of those applications, and it would still be a drop in the mass incarceration bucket — since his actions focused mostly on drug offenders. While about half of federal prisoners are incarcerated for drug crimes, prison sentences for drugs aren’t the biggest cause of mass incarceration in the US as a whole: Only about 16 percent of state prisoners, who make up about 87 percent of the overall prison population, are in for drug crimes. So a focus on reducing prison sentences for other crimes, including violent ones, is likely needed to truly end mass incarceration.
And Obama’s clemency actions only captured a fraction of federal inmates. As of 2015, there were around 92,000 federal prisoners in for drug crimes, and more than 100,000 in for other crimes — far more inmates than Obama’s nearly 2,000 clemency approvals reached.
Even among drug offenders, Obama has reduced fewer prison sentences than the US Sentencing Commission did by reducing the recommended baseline for federal drug prisoners — a move that has already let out thousands of prisoners before their original release dates. And by commuting sentences rather than pardoning people, the president has released ex-prisoners into a world where their criminal records can still stop them from getting jobs, public housing, or the vote.
But most people would agree being out of prison without those things is still better than being in prison without them. The thousands of people who are waiting to hear about their commutations certainly believe that. So does the Obama administration.
The Trump administration likely will not.
President-elect Trump ran on a “tough on crime” platform. He indirectly attacked Obama’s attempts at clemency — and by “indirectly” I mean “exaggerated it to the point of lying,” excoriating Obama for releasing “thousands” of “violent criminals.”
Sessions, Trump’s nominee for attorney general, is likewise a crime hawk. He’s criticized Obama’s use of the pardon power as a violation of the “rule of law.” It’s extremely unlikely that he’s going to turn around, once in office, and continue a policy that he vocally opposed.
Some criminal justice reformers have urged Obama to commute sentences for whole categories of prisoners, to make the biggest possible impact before turning the executive branch over to people whose views on criminal justice are so different from his own. Others have just urged him to get through the stack of applications at the pardon office quicker.
Obama did the second, but it didn’t go in the way reformers would like — it’s resulted in thousands of rejections. And it now seems clear he won’t do the first. Obama will leave office having helped nearly 2,000 individuals — but will leave many more languishing behind bars.