A Terrible Use of a Beautiful Machine

Clemency, broken norms, and a path to redemption

This week, we are thrilled and honored to welcome Professor Mark Osler to the Sentencing Matters Substack. Mark is the Robert and Marion Short Distinguished Chair in Law at the University of St. Thomas School of Law in Minneapolis. Mark is a renowned national expert on clemency, sentencing, and illegal drug law and policy. His writings have appeared in the New York Times, the Washington Post, the Atlantic, and in law journals at Harvard, Stanford, the University of Chicago, Northwestern, Georgetown, Ohio State, UNC, William and Mary and Rutgers. Mark has also been a regular contributor to the Federal Sentencing Reporter.

In addition to his legal work, Mark currently serves as the Ruthie Mattox Chair of Preaching at First Covenant Church-Minneapolis, and he held the Byrd Preaching Chair at St. Martin’s-by-the-Lake Episcopal Church in 2012. In 2011, Mark founded the first law school clinic specializing in federal commutations, and in 2015, he co-founded (with Professor and former U.S. Sentencing Commissioner Rachel Barkow) the Clemency Resource Center, a one-year pop-up law firm that prepared clemency petitions. The two projects have led to the freeing of over 100 people from prison.

-Jonathan

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Imagine a classic Jaguar sedan, perhaps a 1972 XJ in British racing green — elegant, stunningly fast, unusual. It’s a joy to drive, wonderful to look at, and can come to define its owner in a way few cars can.

For those of us who care about federal clemency, watching President Donald Trump’s use of the pardon power in his second term has been like standing by as a driver uses that classic Jag to knock down an old house by slamming it into a wall again and again and again as a crowd gathers, aghast. It is a terrible use of a beautiful machine.

These are hard days for people like me who believe that the pardon power is an essential part of the Constitution and a beautiful machine that embodies one of our primary national virtues: a belief in second chances. While clemency has been subjected to sharp criticism before (most recently, in the wake of Bill Clinton’s shady pardon of fugitive financier Marc Rich), the wave of criticism now — most often turning on President Trump’s grants to loyalists, celebrities, and business associates — has sometimes included outright calls to simply get rid of the federal pardon power.

Being forgotten are the inspiring ways that clemency has been used throughout American history: Washington pardoning the leaders of the Whiskey Rebellion after personally leading the militia against them; Lincoln crying in the White House with the parents of a condemned man; Truman commuting the death sentence of Oscar Collazo, who tried to assassinate him; Kennedy huddling with his brother before freeing those serving long terms for marijuana; Obama emerging from a meeting with drug defendants in a federal prison, moved with empathy to accelerate his clemency initiative; or Alice Marie Johnson literally running from the prison into the arms of her waiting family after First-Term Donald Trump freed her.

Instead, norms are being broken with clemency grants that sometimes startle even the fiercest clemency advocates. Even aside from his ties to those receiving grants, Trump diverges from most of his predecessors in that he has issued grants for crimes that aren’t named, pardoned people who are not identified, pardoned people before they are even sentenced, and given hundreds of pardons to those charged with violent crimes. The norm-breaking, though, began at the end of the Biden administration with its own flurry of controversial grants. In issuing pardons to his son Hunter and other family members, Biden simply described a remarkably broad ten-year period and a pardon for all federal crimes (in Hunter’s case) or all non-violent federal crimes (for the others) rather than identifying specific crimes. Biden wasn’t the first to issue such a pre-emptive pardon — that was a feature of Ford’s pardon of Nixon, for example — but unlike Ford, he lacked the imperative of national unity that Ford was able to stand on.

Biden also beat Trump to overturning the norm that grants were usually given to specified individuals — Biden did that with his January 19 grants to people affiliated with the investigation into the events of January 6, 2021, and Trump followed suit in pardoning unidentified 2020 election deniers on November 10, 2025. Pardoning people before they were sentenced? All of Biden’s pre-emptive pardons did that. Trump just seems intent on doing more of it. Moreover, the abandonment of the evaluation process that extended from the DOJ into the White House seemingly evaporated before Trump took office. Biden didn’t rely on the Pardon Attorney’s advice in his biggest batch of grants (a commutation of 2,490 sentences on January 17, 2025), and it was unclear who was defining the category he used.

Regardless of who started it, now we are in the soup. Between Trump and Biden, there is something to upset everyone about the way clemency has been used in the past year and change — and the institution itself is increasingly seen as nothing more than a brutal tool of politics, a rough-hewn shiv instead of a long-stemmed key that simply opens the prison door to free the deserving. It is hard to look at the recent grants and see a guiding principle we might want to believe in. We have come a long way from the idealism and flawed but deliberative process of the Obama clemency initiative, which focused on narcotics defendants who had served long terms and achieved rehabilitation.

Amid the churn of crooked cops, crypto kings, celebrities, Trump apparatchiks, and over-committed loyalists who now seem to dominate the drip-drip-drip of Trump clemencies, there is something missing: those people who followed the rules, took classes, focused on rehabilitation, and submitted a petition for commutation or pardon the old-fashioned way: by writing it out and sending it to the Pardon Attorney. Though it was badly flawed, at least before Biden’s End Days we knew what the process was; now that has been replaced by a shadowy network of back-door advocates, Mar-a-Lago socializers, and an unknown coterie in the White House. The evaluation process was never transparent, but now it isn’t clear if there is an evaluation process at all. Grants seem to relate to Trump’s beliefs and grievances, but from the outside it is hard to see if there if there is any other filter at all.

Whatever the framers of the Constitution intended, it probably wasn’t this. They seemed (in this one grant of power) to have faith in the motives of whoever might become president, a confidence in the wisdom democracy can create and express. Certainly, they envisioned that the use of clemency would reflect the values and principles of the elected executive, given that they provided clemency to the president without checks or limits other than a bar on using clemency for those facing impeachment. And over the centuries, clemency has maintained that aspect of adjusting to the shape of a given president’s hand. Lincoln, a storyteller, was moved by the stories of family members pleading for their boy. Obama, who visited narcotics prisoners and came out saying “there but for the grace of God [go I],” focused on that group.

Perhaps what was unforeseen was that we would elect a president who so valued loyalty, celebrity, and disruption. But here we are.

One imperative now is to look over the horizon, at least a little bit. Before very long, we will again be in the throes of a presidential election cycle, and just as democracy brought us to this dark place for federal clemency, it can take us back out again. Those running for president, Republican and Democrat, should articulate what their process will be for evaluating and granting clemency petitions and what principles will guide their decisions. Clemency, despite its importance, has not been a part of a presidential debate since Ford v. Carter. We need to talk about it, ask hard questions, and extract promises. It must be something we discuss at some time other than right after a disastrous grant.

Trump’s (and Biden’s) destruction of norms and process becomes part of an opportunity to rebuild, and that will be a serious task. Since 2015, Rachel Barkow and I have pressed for a new evaluation mechanism, outside of the DOJ, that will center on a bipartisan commission that will directly advise the president — a model that has been used successfully by several states (including my home of Minnesota) and by President Ford in considering grants to thousands of Vietnam-era offenders. Any new process must be more efficient, less bureaucratic and provide more regular grants than the one that now lays in ruins ever did. We can make it better than it was.

Having been damaged by slamming it into a building, the physical remnant of that old classic Jag, that beautiful machine, presents a hard choice. We can just park it somewhere hidden, stuck in some old barn, and let it molder. People do that.

The better choice is to refurbish it and reclaim its essence as a beautiful machine crafted by skilled hands. Some things in this world are too rare to abandon, even when they have been sorely misused.