This past April 12, an excited crowd filled the auditorium at the Department of Justice’s headquarters. They were there at the invitation of the US Pardon Attorney, Liz Oyer, who billed the event as a “Celebration of Second Chances.” It was a real celebration, too, as many of those in attendance were clemency recipients under Presidents Obama, Trump, and Biden. A few got to tell their stories of change and redemption, moving even the hardened prosecutors in the crowd to cheer for them.
One of those speakers, Jason Hernandez, must have felt something good coming. After writing his own petition, he received a commutation from President Obama in 2013, which allowed him to leave prison after serving 15 years of a sentence of life without parole plus 320 months. He’s made the most of his freedom in his hometown of McKinney, Texas: In the decade since his commutation, he has thrown himself into a variety of local projects, including the remaking of the cigarettes-and-beer store that was the backdrop for the early days of his drug-selling. Now it is a small grocery in the middle of a food desert, and Hernandez was rightly recognized as a “local hero” on Good Morning America.
Just a few weeks after the Celebration of Second Chances, he was given a pardon from President Biden, which relieves him of many of the restrictions that go with a felony conviction. Not only that, he was immediately invited to a meeting at the White House where he discussed the pardon in person with Vice President Kamala Harris as celebrity-activist Kim Kardashian looked on.
One might think that all of this—worthy recipients being recognized, television exposure, the gaze of celebrities and the powerful—might signal a revival of principled clemency in the United States. The true picture is murkier, though. Biden’s clemency efforts have been unambitious at best and disappointing to many (especially the thousands who have had petitions pending for years). That lack of progress is disheartening on many levels. In a way, clemency is the soul of the US Constitution: It puts within the sole discretion and conscience of the president the remarkable power to free the prisoner and empower those burdened with a long-ago conviction. There is no check or balance, no veto—just a pure expression of what a given president finds important. The grant of clemency is often construed as “mercy,” and in his Seventh Address to Congress, George Washington described clemency as lending “moderation and tenderness” to the criminal justice system as a whole.
As in so many things, the federal system has much to learn from the states—and, in particular, the federal clemency process could benefit by emulating some of the changes in my home state of Minnesota. In 2023, legislation changed the clemency process in fundamental ways, with a goal of making the system more accessible and productive for those who have actually earned the chance for a pardon or commutation. President Biden also could look for guidance to a well-considered plan stalled out in Congress, the FIX Clemency Act, whose provisions could largely be accomplished by executive order.
This is all important because of the remarkable things that clemency can do: save a life when a death sentence is commuted, free a man or woman who is wrongfully convicted or who has fundamentally changed, and grant solace and forgiveness to an elderly person who made a long-ago mistake. I’ve had the unforgettable experience of calling people in prison to tell them they will be free and witnessed the many reactions to impending freedom: cries of joy, a stark stunned silence, the sound of a corded phone receiver bouncing off a wall after being dropped. The soul of the Constitution, indeed—if it is given life.
Moreover, clemency has an inherent advantage over other second-chance systems that send a case back to the sentencing judge (such as the federal process of Compassionate Release). Because clemency has a single decider, it can—if done well—create uniformity in a way that is impossible through judicial discretion.
Historically, clemency has played a rich and significant role in American history, from George Washington pardoning the leaders of the Whiskey Rebellion, through Lincoln’s heartfelt grants to condemned soldiers, to Gerald Ford’s making of history in not only granting a pardon to Richard Nixon but also creating a special process for considering grants to tens of thousands of Vietnam-era military offenders. That history bleeds into our contemporary patchwork of systems—one for each state and the federal government, along with distinct programs in Washington, DC, and for members of the military who receive a court martial.
When we talk about clemency in the modern context, we usually are referring to the power of government—often, but not always, the executive—to either shorten or alter a criminal sentence (a commutation) or remove the conviction and its effects to some degree (a pardon). These are sometimes seen as acts of mercy, and sometimes as a part of justice. Either way they have been with us for a very long time.
Clemency has been a part of legal codes just about as long as there have been legal codes: The Code of Hammurabi (a Babylonian text from 1750 BCE) includes clemency provisions. Christians, during their Holy Week, remember the clemency decision made by Pilate, who chose to release Barabbas instead of Jesus after the crowd favored the murderer and insurrectionist. The Romans revered the idea of clemency so much that they recognized a deity who embodied its virtues. Her name was Clementia.
Our own form of clemency was modeled on the power of British monarchs, which is a remarkable thing, given that the framers consistently rejected royal powers in creating our republic. Of course, it was a different kind of power, one that was unlikely to become a tool of tyranny, as tyrants generally control dissent by putting people in prison, not letting them out. William Blackstone, whose Commentaries were a principal text for American lawyers in the 1770s and 1780s, wrote that “one of the great advantages of monarchies in general, above any other form of government; that there is a magistrate, who has it in his power to extend mercy, wherever he thinks it is deserved.” At the Constitutional Convention, the inclusion of the Pardon Clause was debated, and in the end the only limitation put upon it within the Constitution was that it could not be used in cases of impeachment.
Alexander Hamilton was a primary proponent of the pardon power and argued for ratification of the Constitution, which contained it. In Federalist No. 74, Hamilton describes the pardon power as a check on the harshness of punishments, saying, “The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.” Once the Constitution was in place, it was Hamilton’s mentor, George Washington, who first used it as president. Intriguingly for a career soldier, he used it to pardon men who had rebelled against his policies—the Whiskey Rebels of Western Pennsylvania.
Within the federal system, clemency came to be widely used by many presidents, often to address excesses in the past. Jefferson pardoned those convicted under the Alien and Sedition Acts, Franklin Delano Roosevelt granted pardons to those convicted of Prohibition violations, John F. Kennedy tempered the sentences of marijuana prisoners, and Presidents Ford and Carter issued sequential grants to Vietnam-era draft evaders and Army deserters. The clemency grants by modern presidents often echo their deepest values: For Obama it reflected a sense of deep injustice about the War on Drugs, for example, and many of President Trump’s grants involved (for better or worse) celebrity and loyalty.
While the federal model gave the president sole authority to grant clemency, the states adopted a wide variety of practices. That range of processes remains with us today.
In one way or another, every jurisdiction in the United States has some mechanism for clemency. This reflects the deep roots of the institution within our culture; after all, nothing requires a state to allow for clemency. While the existence of clemency is uniform, the processes reflect strikingly different approaches.
Of them all, the federal system may be the clumsiest. There, prisoners or those with prior convictions send a petition to the Pardon Attorney, an official located within the Department of Justice. An attorney or paralegal with the office of the Pardon Attorney will assemble the file, in part by reaching out to the local US Attorney’s Office that prosecuted the case to seek their opinion. Once the file is complete, the Pardon Attorney determines a recommendation: to grant or deny. One might think the next step would be submission to the president. One would be very, very wrong.
Instead, the file goes next to the office of the Deputy Attorney General (DAG), a remarkably powerful individual who (among many other duties) is the direct supervisor of the US Attorneys in each federal district. An assistant to the DAG will review the file, then pass it to the DAG, who has the option to second-guess the considered view of the Pardon Attorney. From there, it goes to the office of the White House Counsel, where yet another assistant reviews it before passing it to the actual White House Counsel. The Biden administration appears to have added another step to this winding road, as the Domestic Policy Council reviews the case. And then, maybe, perhaps, probably not, the file finally goes to the president. It is a wicked gauntlet. No state replicates the federal model, nor should they.
Nothing requires the president to use this system; the Constitution explicitly limits the president’s authority to pardon only in its bar on clemency for those under impeachment. And, in fact, many presidents have ignored it when they want to. Most recently, many of President Trump’s grants did not undergo these multiple reviews. In other words, any president could fix this broken system, but none have been so bold.
The results of this arcane system are predictable: Recent presidents have granted a small fraction of petitions while allowing huge backlogs to accumulate. Seven months into the 2024 fiscal year, the Biden administration carried a backlog of 8,300 petitions, even after having denied 7,903 cases just in those seven months. Compared to those 16,203 petitions pending or denied, Biden had granted just 28 in that same time period. He did announce a broad clemency for minor marijuana crimes, but that grant affected almost no one in a significant way—it was a solution in search of a problem. A later grant to those convicted of consensual gay sex while serving in the military was admirable and addressed a historic wrong, but affected few if any of the people in the petition backlog. Clearly, something is wrong—and it didn’t start with Biden. His abysmal record is roughly comparable to those of most of his predecessors, who were saddled with (but didn’t change) the byzantine process described above.
It wasn’t always this way. Historically, presidents up to and including Reagan granted clemency at a much higher rate than we have seen since Reagan’s presidency. For example, Herbert Hoover granted almost 1200 petitions out of a much smaller pool, while no president except Obama has granted more than 500 since the Carter administration—even over two terms. While President Obama admirably found over 1900 petitions to grant, his grant rate was still historically low because of the high number of petitions his administration received after soliciting them broadly.
It’s striking that such diverse administrations—Trump, both Bushes, Clinton—would have the same lousy outcomes. What they had in common was the ugly and bureaucratic system described above. It’s not hard to imagine a better way.
One might expect that the states would simply replicate the federal system, but that simply isn’t true. Instead, they embrace very different processes, and produce very different outcomes. Only a few states—Maine, Oregon, and Wisconsin—allow the governor free reign to grant clemency in the manner we see in the federal system. Many more require consultation or power-sharing with a board, and six even give the power over entirely to an independent commission.
One might also expect that grant rates would follow a red/blue divide, with more conservative states being stingier with clemency. That also would be false. In fact, some of the most productive states are Republican-led conservative strongholds including Alabama, Oklahoma, and South Carolina, while some of the least productive are reliably liberal Massachusetts, Vermont, and New Jersey. In the end, some mix of political will and functioning process is required to make clemency an active part of the criminal justice system.
For decades, Minnesota was one of those relatively liberal jurisdictions with a poor record of clemency. Its process was dramatic but strikingly unproductive: Decisions were made by a Pardon Board comprised of the governor, the attorney general, and the Chief Justice of the Minnesota Supreme Court. They conducted hearings in person and had to be unanimous to grant a petition. The short hearings included a statement by the petitioner, the testimony of witnesses, deliberation in open court, and a public vote—usually in less than 15 minutes.
As one might imagine, having each petitioner plead their case to the three most powerful people in the state did make for good theater. As Dan Berry described it in a lengthy New York Times essay in 2023, it was “a raw pardon process unlike those in most other states, with the powerless beseeching the powerful in public, and the decision rendered in the moment.”
Dramatic, yes; productive, no. For decades, Minnesota granted fewer pardons than its conservative neighbor, South Dakota, even though Minnesota’s population is six times larger. In the last five years, another problem arose: A 325% increase in petitions for clemency made the process—where each case was heard before the three top officials in the state—untenable.
A sweeping 2023 reform bill passed by the Minnesota legislature and signed by Governor Tim Walz changed the landscape of clemency to address the twin problems of a lack of productivity and an overburdened system. That legislation was supported by the governor’s office, the Department of Corrections (which had previously overseen much of the clemency process), crime victim groups, prosecutors, and clemency experts.
The new law changed nearly every part of clemency, but three elements were most important. First, the unanimity requirement was removed, and now a clemency petition can be granted with a dissenting vote (so long as the governor supports the grant). Second, the legislation created a clemency commission appointed by the existing members of the Pardon Board, each of whom gets to choose three members. This new commission will conduct the hearings for most petitioners and make recommendations to the Pardon Board (that is, the governor, attorney general, and chief justice). Finally, the new law simplified the process by combining what had been two forms of pardons. Somehow, Minnesota granted “regular” pardons that functioned in the manner we see in other jurisdictions and also “pardon extraordinaries,” which were not so extraordinary—they were just regular pardons with extra restrictions. Now, there will be just “regular” pardons.
Though the commission model is still being framed up, the immediate effects of the first change were clear: Without a unanimous vote requirement, grant rates shot up well above 50 percent, bringing them more in line with historic precedent and neighboring jurisdictions such as South Dakota. Minnesota identified the problems with the state’s clemency process and fixed them. The federal government should do the same.
There is a cost to the federal government’s failure to create a functioning clemency system. That cost is largely borne by people like Sarah Carlson, who was arrested in 2009 and convicted on drug charges after years of addiction. She changed her life in profound ways. She found sobriety, established a family, and developed a career working with Minnesota Adult and Teen Challenge, a group that helps people recover from addiction and reenter society from prison. In over a decade at Minnesota Adult and Teen Challenge, she has advanced continuously as she has earned the trust of those around her. In 2020—four years ago—students in my clinic filed her petition for a pardon, which would allow her to advance even further in her work. That case, which should be an easy one, a layup, is still stuck somewhere in the broken federal clemency pipeline with thousands of others.
Minnesota is just one exemplar of change that the next administration could look to in trying to craft a better process. President Biden’s successor might also want to talk to Illinois Governor J.B. Pritzker, who almost tripled the grant rate of his predecessor and made particular progress in granting commutations to people in prison who no longer needed to be there. She or he could also reach out to Wisconsin Governor Tony Evers, who has set a state record by granting over a thousand pardons after his predecessor, Scott Walker, eviscerated and then ignored the process. The next president could even contact the Republican governor of Missouri, Mike Parsons, who is granting pardons at a rate not seen since World War II.
At the very least, the next administration should consider some federal legislation already drafted, the FIX Clemency Act proposed by Representative Ayanna Pressley of Massachusetts. That bill would create a presidentially selected U.S. Clemency Board, comprised of nine people who would report directly to the president, replicating the process used by some of the most successful states and President Ford’s successful commission to review the cases of Vietnam-era offenders. Even if the next president fears that the bill could not survive a divided Congress, they could implement its core features by Executive Order, immediately fixing a process that wasn’t so much created but was formed by accretion over time like the grease, fat, and oil that clog a pipe.
Within a president’s duties, clemency stands alone as a preserved power of kings, a tool of royalty that can sculpt mercy for those who have changed their lives. It should matter not just to those seeking pardons and commutations but to all of us, as its principled use makes our society more humane, just, and whole.
