Imagining better clemency traditions than turkey pardons and lame-duck frenzies
Late November 2024 augurs some traditions in the world of executive power that I do not view as a cause for holiday celebration. Every year, as Thanksgiving approaches, the President and some Governors conduct ceremonies to “pardon” a few turkeys (who are often given not-so-clever names). This year, with President Joe Biden and some Governors now in their final weeks in power and no longer accountable to the voting public, the 2024 holiday season also brings the spectacle of efforts to encourage out-going chief executives to use their clemency pens robustly to benefit a wide array of justice-involved individuals. That spectacle traditionally presages a frenzy of lame-duck clemency grants that are more predictable based on calendar dates than based on the merits of substantive pleas for justice or mercy.
Along with many others, I’ve long complained about the contrast between the predictable turkey pardon tradition and unpredictable human clemency practices. Amid effort to urge that fellow citizens rather than just fowl birds be the beneficiaries of Thanksgiving clemencies, I found especially poignant this lament by Professor Mark Osler in a 2018 CNN commentary: “The process used to choose which turkey might be pardoned is far more rational, efficient and effective than the one used to evaluate clemency for humans.” How he explained this point:
First, it occurs regularly. Turkeys are pardoned every year, not just in the waning days of an administration. Second, decisions are made by objective specialists with the current chairman of the National Turkey Federation … responsible for managing a thorough selection process…. Third, there are defined criteria. The finalists are selected based on their willingness to be handled, their health and their natural good looks. Fourth, attention is paid to making sure they thrive after their grant of clemency. After the ceremony, they are sent to Virginia Tech's "Gobbler's Rest" exhibit, where they are well cared for.
This contrasts sharply with the process of giving clemency to humans.… I have worked with my students to prepare and file petitions on behalf of deserving clients, and have found that the procedure through which clemency is granted is irregular, run largely by biased generalists, devoid of consistent, meaningful criteria, and it does little to ensure success of individuals after their release.
At the federal level, one long-standing concern and complaint regarding the clemency process has focused on the central role given to the Department of Justice (DOJ) in reviewing and making recommendations on clemency petitions. Many have argued, and I tend to agree, that there is an inherent conflict of interest when DOJ’s lawyers are tasked with assessing whether and when persons prosecuted by fellow DOJ lawyers should have sentences commuted or convictions pardoned. Notably, in late 2021, the FIX Clemency Act was introduced in Congress seeking to remove DOJ from the clemency process by creating a U.S. Clemency Board with individuals appointed by the President to review clemency petitions and make recommendations directly to the President. And yet, though concerns about problematic clemency practices and processes have been bipartisan, this bill has not advanced nor has any other serious effort to potentially make the federal clemency process, in the words of Professor Osler, “more rational, efficient and effective.”
Against this backdrop, and inspired in part by my own work on a state clemency program created by Ohio Governor Mike DeWine, the Ohio Governor's Expedited Pardon Project, I wish to envision a few potential new traditions in the clemency arena that would justify celebration:
1. Clemency efforts on (and even before) Inauguration Day rather than at the end of term.
In January 2009, out-going President George W. Bush, overwhelmed by end-of-term clemency requests, reportedly advised President-elect Barack Obama to “announce a pardon policy early on and stick to it.” In a similar vein, I asked in this post on Inauguration Day 2009,"Is it too early to start demanding President Obama use his clemency power?". The key sentiment here is that the clemency power is too important, and sound clemency decision-making too complex, to be relegated to a last-minute afterthought for chief executives. Clemency can and should be a “first day,” a “first 100 days” and really an everyday concern for Presidents and Governors. This is so not only because our massive criminal justice systems impose new convictions and sentences on literally thousands of Americans every day, but also because sound deliberation and responsible action regarding clemency policies and practices requires considerable time and sustained attention by chief executives and their staff.
These realities have been on display to me as I have had the honor to assist the inspired pardon efforts of Ohio Governor Mike DeWine. In summer 2019, not long after being sworn into office, Governor DeWine and his staff outlined a vision for having Ohio universities help with an expedited pardon process for persons who met certain criteria. Working with the Governor’s office and the Ohio Department of Rehabilitation and Correction, law schools at The Ohio State University and the University of Akron helped to develop, and other Ohio law schools and community partners have helped to administer, a program giving qualifying pardon applicants one-on-one assistance and a speedier path for pardon consideration. Still, even with a strong vision for the program coming from Governor DeWine and his staff right after his election, even with universities and community partners actively invested in the work aided by resources from the Ohio General Assembly, the Ohio Governor's Expedited Pardon Project (OGEPP) still needed time to hit its stride and for the word to get out broadly to potential applicants. OGEPP many successes to date – last year the program celebrated the granting of more than 100 pardons through this program, as of now there have been over 500 accepted clients and over 170 grants, and expedited clemency programs have since been developed in Pennsylvania and New Jersey – would not have been possible if Governor DeWine and his staff had not made clemency a priority from the very start of his term and throughout his entire time in office.
Because President-Elect Donald Trump made many clemency promises on the campaign trail, he and his staff may well be discussing clemency plans for his first days back in the Oval Office. Trump repeatedly pledged to consider pardoning every person who has been prosecuted in connection with the attack on the U.S. Capitol on January 6, 2021 (which is now more than 1500 persons). In addition, at the Libertarian convention in May 2024, Trump promised clemency for the creator of the Silk Road dark web site: “If you vote for me, on day one I will commute the sentence of Ross Ulbricht, to a sentence of time served." And, since his Election Day victory, an array of politicians and celebrity defendants – ranging from New York Mayor Eric Adams to ex-Ohio House Speaker Larry Householder, from the “Tiger King” Joe Exotic to Sean “Diddy” Combs – have been discussed as possible clemency beneficiaries.
Though few may be eager to endorse grants of clemency to everyone clamoring for Trump’s grace, I sincerely believe that anyone truly concerned with punitive excesses in our justice systems should welcome the prospect of a new President making use of his clemency power on “Day 1” and perhaps also making clemency a “first 100 days” priority. More broadly, I think it worthwhile to imagine how possible actions by Trump to prioritize use of his clemency powers early in his second term might portend a new clemency tradition – and not just for Presidents, but also for Governors – of chief executives exercising this historic constitutional power early and regularly, rather than in just a lame-duck frenzy.
2. Clemency efforts linked to more holidays as just one way to regularize grants
I do not seek an end to the tradition of turkey pardons around Thanksgiving, nor am I troubled that the winter holiday season has sometimes served as a period for chief executives to grant a few more pardons and commutations. Rather, in addition to advocating for early-term clemency actions by Presidents and Governors, I would suggest that chief executives seek to routinize consistent clemency activity in part by linking grants to many more holiday periods each year.
For example, though we annually honor those who served in our armed forces through Veterans Day, little attention is given to the disconcerting large number of veterans who spend this day behind bars or burdened with a criminal conviction. The Council on Criminal Justice’s Veterans Justice Commission has recently highlighted the disconcerting extent of veterans’ involvement in criminal justice systems, noting that one third of veterans indicate that they have been arrested in their lifetime, and that nearly 200,000 veterans may be confined in state and federal prisons and local jails. Given veterans’ service to help safeguard our nation’s commitment to liberty and freedom, our traditions on Veterans Day ought to include chief executives serving deserving veterans through clemency grants to help serve them with greater liberty and freedom. (Natably, California Governor Gavin Newsom on Veterans Day this year granted clemency to a few veterans. It would be heartening for him, and Governors from coast-to-coast as well as the President, to make this a yearly occurrence.)
On the topic of properly celebrating liberty and freedom, Independence Day — when we celebrate a great document that starts by stressing the “unalienable Rights [of] Life, Liberty and the pursuit of Happiness” — would seem to be quite the fitting day for Presidents and Governors to help, through grants of clemency, more Americans enjoy "Life, Liberty and the pursuit of Happiness." Interestingly, worldwide there is a quite common tradition in many, many other counties for lots of clemency grants (and even mass clemencies) to celebrate an independency day — a quick Google search turns up 2024 press accounts of major clemency grants in countries ranging from Algeria to Israel, from Morocco to Myanmar, from The Philippines to Sri Lanka, from Turkmenistan to Uzbekistan, from Vietnam to Zambia to Zimbabwe. It is more than a bit troubling that the United States, when we celebrate the date on which our nation was purportedly “conceived in liberty,” seems to be behind much of the rest of the world in operationalizing our commitment to freedom in the form of clemency activity on Independence Day.
A host of other days throughout the year, from Martin Luther King Jr. Day to Washington’s Birthday, from Mother’s Day to Father’s Day, from Juneteenth to Labor Day, might all readily serve as a useful opportunity and thematic means to focus attention on persons meriting clemency grants. The enormous size and reach of our criminal justice systems, with many millions of persons incarcerated and under active community supervision and tens of millions more dealing with an array of life-altering collateral consequences, provides plenty of clemency options and opportunities for every possible date on the calendar. Though no chief executive should be expected to “celebrate” every holiday with clemency grants, regularized and annual clemency efforts that are seasonally predictable would be of great benefit to our justice systems. If it is good enough for the turkeys every year on their “special day,” perhaps for many others on many other special days as well.
3. Clemency efforts based on some general (and perhaps evolving) guidelines
One virtue of the clemency power, at least in my view, is that it is an equitable power generally not encumbered or even subject to detailed rules. In the federal system, Congress is not constitutionally permitted to create any legal restraints on the President’s clemency authority; in many state systems, there are some rules that structure the clemency process, but Governors still typically have broad decision-making discretion. These realities ensure chief executives have considerable authority to serve justice and dispense mercy as they see fit, but unfettered discretion contributes to the unpredictability and irregularity that has come too often to define modern clemency decision-making. In addition, with an irregular and unpredictable process, the prospects and perceptions of unfairness regarding who secures (too rare) clemency grants is heightened.
The regularity and predictability of a discretionary process can be enhanced when decision-makers set forth in advance criteria or guidelines likely to be used. The development and announcement of such guidelines can clarify for the decision-makers, and signal for the community, what core values and interests are to be prioritized. In the clemency space, because there are so many values and interests in play, the process of developing general decision-making guidelines could be salutary. For example, might a chief executive want to prioritize commutations or pardons; certain types of crimes or certain types of offenders; certain justice-related issues (e.g., claims of innocence) or certain post-conviction developments (e.g., legal reforms or post-offense conduct). This list could go on and on, and I mean just to flag that different chief executives may reasonably have varied visions and goals whenever turning to the exercise of clemency power. Though Presidents and Governors should not seek to limit or hamstring efforts to make dynamic use of clemency authority when articulating goals, they should appreciate the benefits, both procedural and substantive, from announcing general guidelines regarding clemency priorities.
Here again, I would champion the Ohio Governor's Expedited Pardon Project (OGEPP) as a helpful model. Governor DeWine and his staff effectively set forth a set of basic application criteria which helps ensure the program can be more efficient and effective in developing applications most likely to secure a pardon grant. Another example comes from the President Barack Obama Administration’s Clemency Initiative, sometimes known as Clemency Project 2014 or CP14, which began with the Justice Department in April 2014 announcing a set of key factors to be prioritized in processing clemency applications from federal inmates. The development and articulation of clemency criteria can produce criticisms and concerns about what may not be prioritized, and chief executives should remain open to evolving and reconsidering articulated clemency factors big and small. But it will always serve the interests of both the clemency process, and those who may seek to pursue the process, if chief executives make efforts to articulate general guidelines regarding how they are inclined to exercise their broad powers to reduce criminal sentences and convictions consequences through clemency grants.
* * *
Returning to the Thanksgiving theme, let me conclude by heartily encouraging broad clemency thankfulness. I am certainly thankful that our nation’s constitutions recognize and safeguard a broad power for executive authorities to take a second look at convictions and sentences and to grant second chances to deserving individuals. I am also thankful that, even in divisive political times, we typically hear only robust debates over how the clemency power should be exercised, not over whether the power should exist at all. And I look forward to being ever more thankful if we see Presidents and Governors adding more frequency, regularity and predictability to their exercise of this regal and stately constitutional authority.
Finally, speaking of thanks, everyone involved in the production of this Substack is eager to say thank you for reading our work. We are grateful to have a space to discuss in varied ways the varied sentencing matters we find engaging. We hope you will keep reading and spreading the word.