Public Law & Legal Theory
This Article shows how the pardon power has been corrupted over the past forty years. It begins with a brief history of federal clemency. Throughout this history, presidents gave weight to the views of prosecutors and judges and afforded politicians considerable influence. Nevertheless, until well into the twentieth century, presidents liberally granted clemency to both prisoners and ex-offenders who, after completing their sentences, sought to erase their convictions.
In the early 1930s, as parole became a common means of releasing prisoners, the use of clemency to release prisoners declined. The abolition of parole in the 1980s, however, brought no revival of clemency. To the contrary, sentence commutations continued to fall and came close to the vanishing point. For the first time in its history, the United States had no functioning mechanism for releasing prisoners prior to the expiration of their sentences, and the federal prison population burgeoned. The last two years of the Obama administration did see a brief departure from this pattern.
As the front door to clemency closed, a back door opened. Presidents who emphasized how little sympathy they had for criminals took a different view when the criminals were people they knew. This Article describes troubling pardons granted by Presidents Reagan, George H. W. Bush, Clinton, and George W. Bush. The Article focuses primarily, however, on the clemency granted by President Trump. While thousands of clemency applications remained unresolved, Trump granted clemency to potential witnesses against him, political supporters, personal friends, people with political constituencies, rap stars, abusive law enforcement officers, war criminals, and people whose applications were championed by movie stars, professional athletes, and Fox News commentators. The Article describes many of Trump’s pardons and commutations. It concludes by asking whether the Framers erred by granting a nearly unfettered power to the president.
Albert Alschuler, "The Corruption of the Pardon Power", Public Law and Legal Theory Working Paper Series, No. 796 (2022).